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February 20, 2010

DOJ suggests "extraordinary" leniency justified for Bernie Madoff's lieutenant

As detailed in this New York Times article, federal prosecutors "expect to recommend 'extraordinary' leniency for Frank DiPascali Jr., who has admitted being Bernard L. Madoff’s crucial lieutenant in history’s largest Ponzi scheme, according to documents made public in federal court in Manhattan on Friday." Here's more from the piece (which includes links to two must-read documents for Madoff mavens):

Mr. DiPascali, who is facing up to 125 years in prison, “has already provided substantial assistance to the government in its investigation and prosecution of others” and “it is likely his cooperation will result in an extraordinary letter” in support of a lower sentence, prosecutors reported.

The disclosure was made in a letter submitted under seal to Judge Richard J. Sullivan of Federal District Court in December. The rest of the 10-page letter apparently described the specific help provided by Mr. DiPascali but the details remain secret in the heavily redacted letter.

To release the details now would cause “significant harm” to the government’s criminal investigation of the enormous Ponzi scheme operated by Mr. Madoff with Mr. DiPascali’s help, prosecutors told Judge Sullivan.

The letter was submitted as part of government and defense efforts to win Mr. DiPascali’s release on bail pending his sentencing this year on securities fraud and conspiracy charges.

Those efforts, rebuffed twice by Judge Sullivan, were finally successful last week after significantly tighter conditions were proposed and accepted.  The restrictions include a $10 million personal bond secured by the homes and retirement savings of several family members and friends, home detention with an electronic monitoring device in place and close surveillance by federal agents.

Although Judge Sullivan agreed that the new package was adequate to ensure that Mr. DiPascali would not flee, he expressed intense dissatisfaction with the bail arrangement that the defendant has negotiated with prosecutors.

In his order approving bail, Judge Sullivan said he nevertheless “believes that the government’s decision to endorse (and enhance) defendant’s bail proposal — and that endorsement is critical to the current application — is misguided.”

February 20, 2010 in Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Canada's Supreme Court authorizes discount for police misconduct while upholding mandatory sentencing term

As detailed in this article from the Toronto Star, which is headlined "High court clarifies minimum sentences: They can be lowered to remedy police abuse, but in most cases mandatory penalty must apply," the Supreme Court of Canada handed down a very interesting sentencing ruling late yesterday. Here are the basics:

Trial judges can lower sentences to denounce police misconduct, but in most cases cannot undercut a mandatory minimum penalty set by Parliament, the country's top court says.  The Supreme Court of Canada's ruling stems from a 2004 Alberta case in which a drunk driver was beaten by police. 

The decision is considered important because it focuses on mandatory minimum penalties, a contentious tool the federal Conservatives have increasingly invoked in their "tough-on-crime" agenda.  The top court did not rule out the "possibility that, in exceptional cases" of egregious behaviour by police, a sentence could be reduced below a limit set out in law. "A sentence cannot be 'fit' if it does not respect the fundamental values enshrined in the Charter," wrote Justice Louis LeBel in the 9-0 decision.

The ruling upheld an Alberta Court of Appeal and trial judge's findings that the RCMP used excessive force when arresting a drunk driver in Leduc in 2004. But the high court agreed with the Alberta appeal court, which restored a mandatory minimum $600 fine for impaired driving on top of a 12-month conditional discharge and one-year driving prohibition.

The Supreme Court's ruling is meant to give guidance to situations in which lower courts have taken different approaches in using sentence reduction as a way to respond to Charter breaches.  But it clearly reinforces the need for courts to respect Parliament's decisions to set sentencing floors....

LeBel said "the general rule" is that judges exercising sentencing discretion must follow the guidelines set out by Parliament, and "impose sentences respecting statutory minimums" or other legislated limits on sentencing discretion. There may be "exceptional" cases in which a sentence ought to be reduced even below a statutory minimum, where a lower sentence might be the "sole effective remedy for some particularly egregious form of misconduct by state agents," the high court said.

[The defendant Lyle] Nasogaluak pleaded guilty at trial to impaired driving and flight from police – offences that ordinarily would have drawn six to 18 months in jail and a mandatory fine of $600.

At sentencing, he sought and won a reduced sentence because of the police misconduct.  The judge ruled police had violated his Charter rights and gave him two conditional 12-month discharges and banned him from driving for a year.

The Supreme Court agreed the police had used excessive force, violating his right to "life, liberty and security of the person" under the Charter. The high court said Nasogaluak's penalty was rightly reduced by the trial judge. LeBel said judges at sentencing may consider "not only the actions of the offender, but also those of state actors."

The full ruling in Regina v. Nasogaluak, 2010 SCC 6 (Canada Feb. 19, 2010), can be accessed at this link.

Some related posts:

February 20, 2010 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (6) | TrackBack

February 19, 2010

Noting the triple-digit impact of the Bernie Benchmark

Regular readers may recall my Bernie Madoff sentencing reaction-prediction that "though the choice of the magic sentencing number of 150 years — as opposed to 30 years or 50 years or 100 years — really means very little to Bernie Madoff, it could end up meaning a lot to the government and to some future defendants as a new white-collar sentencing benchmark."  Amir Efrati has this effective new piece on this topic at the WSJ Law Blog, which is titled "Possible Madoff Effect: Triple-Digit White-Collar Prison Sentences." Here are a few excerpts:

When Bernard Madoff last year received a prison sentence of 150 years for committing arguably the largest financial crime by an individual in U.S. history, the public cheered. “Symbolism is important,” said Denny Chin, a federal judge in Manhattan, at Madoff’s sentencing hearing.

Many legal experts believe Chin’s sentence likely empowered other judges to impose enormous, symbolic sentences for fraudsters.  Of course, there are a few examples of triple-digit sentences prior to Madoff.

But consider this: Since July, three fraudsters have joined the triple-digit club, receiving sentences of 100 years or longer and setting records in their respective federal judicial districts. It should be noted that only one of the judges in those cases mentioned Madoff during sentencing proceedings.

Earlier this week a new face joined the club: Robert Thompson, 43 years old, who led a large identity theft and bribery scheme while he was in a state prison for other charges. Earlier this week Thompson, who obtained more than $100,000 from the scheme, was sentenced by a Baton Rouge, La., judge to 309 years in prison. Here’s the story from the Advocate.

David Dugas, the U.S. attorney for the middle district of Louisiana, told the Law Blog that the federal judge in the case made no mention of Madoff and generally sticks to the federal sentencing guidelines, which in this case recommended a sentence of life.

In August of last year, Edward Okun, 58 years old, received a 100-year sentence after being convicted at trial of stealing $126 million from escrow accounts.... Robert Payne, the Richmond, Va., judge who sentenced Mr. Okun, said the defendant’s conduct “may not…have hurt as many people as…Mr. Madoff…but the impact is truly extensive and truly widespread and affects people all over this country.”   In September, Richard Harkless, 65, of Riverside, Calif., received a 100-year term after being convicted at trial of operating a Ponzi scheme that cost investors $39 million.

To some judges, former judges, and lawyers who study sentencing, sky-high prison terms set a bad precedent. Defendants who commit arguably worse crimes — such as second-degree murder — could receive sentences lower than fraudsters, they say. And defendants whose crimes pale in comparison to Madoff’s could receive unduly harsh punishment.

Some recent related posts:

February 19, 2010 in Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"Deciding When To Decide: How Appellate Procedure Distributes the Costs of Legal Change"

The title of this post is the title of this notable new piece from Professor Aaron-Andrew P. Bruhl that should be of extra interest to Blakely and Booker fans, as evidenced by this abstract:

Legal change is a fact of life.  The need to deal with legal change has spawned a number of complicated bodies of doctrine.  Some of these issues have been studied extensively, such as doctrines concerning the retroactivity of new law and the question whether inferior courts can anticipatorily overrule a moribund superior court precedent.  How such questions are answered affects the size and the distribution of the costs of legal change.  Less appreciated is the way that heretofore almost invisible matters of appellate procedure and case handling also allocate the costs of legal transitions. In particular, this Article focuses on lower courts’ discretionary decisions about when to decide the cases that come before them: should lower courts continue to decide cases in the regular course even when a change in law is in the offing, or should they delay adjudication until after the dust has settled?

The Article has both positive and normative aspects. It begins by drawing together several bodies of doctrine in order to present a unified account of what we can call our system’s law of legal change. The Article then presents a case study of the six-month interval between Blakely v. Washington, which invalidated a state sentencing scheme and cast substantial doubt on federal sentencing guidelines, and United States v. Booker, which then held Blakely applicable to the federal system. A majority of the appellate courts that addressed the question upheld the federal guidelines during this transitional interval.  Beneath the surface, however, the various courts upholding the guidelines managed cases very differently.  Some circuits bore much of the cost of legal change themselves, while others shifted some of the cost to litigants and other courts.

Based on the insights gleaned from this episode, I suggest a framework for evaluating and perhaps improving how courts process cases during transitional periods.  Case-management decisions are highly context-specific, which makes it difficult and perhaps undesirable to formulate general rules, but we might be able to improve courts’ handling of such matters by altering the institutional environment and modifying incentives.

February 19, 2010 in Applicability of Blakely to FSG, Blakely Commentary and News, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

US Sentencing Commission finally gets its first new Obama appointee

As detailed in this official press release, the US Senate has finally confirmed President Obama long-ago-nominated new person to serve on the US Sentencing Commission. Here are the details from the press release, which includes background on the new Commissioner:

The United States Senate confirmed Ketanji Brown Jackson as a member of the United States Sentencing Commission on February 11, 2010, and President Barack Obama designated her a vice chair on February 12, 2010.  President Obama nominated Ms. Jackson to serve on the Commission on July 23, 2009.

“We are extremely pleased to welcome Ketanji Brown Jackson to serve on the Commission,” said Chief Judge William K. Sessions III, chair of the Commission.  “Ms. Jackson brings with her many years of legal experience, and she will contribute significantly to the Commission’s work.”

Ms. Jackson currently is of counsel with the law firm of Morrison & Foerster LLP in Washington, D.C.  From 2005-2007, Ms. Jackson served as an assistant federal public defender in the appeals division of the Office of the Federal Public Defender in Washington, D.C.  From 2003-2005, she was an assistant special counsel to the United States Sentencing Commission.  Prior to serving on the staff of the Commission, Ms. Jackson was an associate at The Feinberg Group, LLP (2002-2003); Goodwin Procter LLP (2000-2002); and Miller, Cassidy, Larroca & Lewin, LLP (1998-1999).  Ms. Jackson also served as a law clerk to three federal judges, including Associate Justice Stephen Breyer (October Term 1999).

Ms. Jackson graduated cum laude from Harvard Law School in 1996 and magna cum laude from Harvard College in 1992.

Though President Obama has elevated Chief Judge Sessions into the USSC Chair position, the appointment of Vice Chair Jackson is the first new person to join the USSC in the Obama years.  And though it should not have taken the Senate more than half a year to confirm the well-qualified Ms. Jackson, she still arrives in time to help the US Sentencing Commission work through its dynamic and challenging agenda for the next few years.  I suspect and expect that Vice Chair Jackson will be an important new voice on the USSC as it works on a mandatory minimum report and important proposals to revise the guidelines with respect to alternatives to incarceration and the treatment of some offender characteristics.

February 19, 2010 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Ohio Supreme Court makes its October monthly reservation for the state's death chamber

As detailed in this local AP article, the "Ohio Supreme Court has set an October execution date for a condemned killer who beat his girlfriend with a pipe, threw her in a river and stole $400 from her bank account."   As further noted in this short piece, the top Ohio court "has scheduled one execution per month through October, putting Ohio on pace to execute a record number of inmates this year."

But, as I noted in this post a few weeks ago, Ohio has over 175 murderers currently on the state's death row, which means that, even at a steady pace of one execution per month, the state would not be able to carry out the death sentence on all of its condemned killers until about 2025.  Consequently, I continue to wonder if or when the Ohio Supreme Court will consider scheduling more than just one execution per month (and if or when any Ohio officials to family members of murder victims will start urging the Ohio Supreme Court to pick up the pace).

Some recent related posts:

February 19, 2010 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (3) | TrackBack

"Race and Gender as Explicit Sentencing Factors"

The title of this post is the title of this provocative new piece by Professor Carissa Byrne Hessick available via SSRN.  Here is the abstract:

This Symposium Article briefly traces the history of race and gender as explicit sentencing factors, identifies how the explicit treatment differed for race versus gender at sentencing, and explores how those differences persist in the modern discussion about sentencing policy. Historically, there were several differences between race and gender as sentencing factors, including the persistence of system-wide sentencing distinctions based on gender long after such distinctions based on race were prohibited.  And while system-wide distinctions tended to disadvantage both racial minorities and women, distinctions made by individual judges when sentencing specific defendants resulted in longer sentences for racial minorities while women generally received shorter sentences than men convicted of similar offenses.

Although modern sentencing systems do not permit the explicit consideration of race or gender, they continue to play roles in debates over modern sentencing policy.  Specifically, lawmakers are criticized for enacting policies that are thought to be based on racial stereotypes, and they are also criticized for failing to consider the differences between men and women when enacting other policies.  Given the different roles that race and gender play in the modern sentencing policy discussion, it appears that legal commentators who study gender at sentencing may be working at cross purposes with those who study race at sentencing.

February 19, 2010 in Offender Characteristics, Race, Class, and Gender | Permalink | Comments (2) | TrackBack

Notable suggestions from UK public on youth punishments

I came across this interesting sentencing article from across the pond, which is headlined "Flog Young Offenders And Put Them In Stocks."  Here are excerpts:

A new scheme asking for ideas on how to punish young offenders has been forced to reject many suggestions, including floggings and the stocks.  The Government asked members of the public in the North West to suggest jobs that youngsters could be ordered to carry out as part of their punishment.

In six weeks, 131 ideas were put forward including locking the youngsters in the stocks and pelting them with oranges.  One person suggested public floggings, saying: "They would soon lose all 'street cred' and NEVER re-offend again."

The drastic proposals were submitted through the Government website Making Good. Of the 131 ideas put forward 92 have been seen as "positive".  Sixty one of these gave specific details of a project to be undertaken.

The pilot scheme has been judged to be a success and is being rolled out across the country by Justice Secretary Jack Straw.  "Making Good will empower members of the public by giving them a say in how young offenders in their communities should make amends," he said. 

The scheme builds on existing community work programmes by allowing anyone to suggest jobs that teams of young offenders, aged from 10 to 17, could carry out.  The six-week pilot led to just 14 ideas being accepted, including putting up bird boxes in Liverpool parks and clearing a garden in a sheltered housing complex, while 13 others are being considered....

A spokeswoman for the Ministry of Justice said it had been assessed as a "high risk".  The publicity for the scheme warns: "Public suggestions will need to comply with a range of conditions and be subject to a thorough risk assessment."  Shadow justice secretary Dominic Grieve dismissed the scheme as an "X Factor style gimmick", and called on the Government to reduce re-offending rates instead.

February 19, 2010 in Criminal Sentences Alternatives, Offender Characteristics, Who Sentences? | Permalink | Comments (5) | TrackBack

February 18, 2010

Former NYC police chief Bernie Kerik gets (above-guideline) four year sentence

As detailed in this New York Times article, "Bernard B. Kerik, a former New York police commissioner who rose to national prominence, was sentenced to four years in prison on Thursday after pleading guilty to eight felony charges, including tax fraud and lying to White House officials."  Here are more details:

Under the terms of a plea agreement reached in November on the eve of his trial, the prosecution and the defense recommended that Judge Stephen C. Robinson sentence Mr. Kerik to 27 to 33 months in prison.  But the judge departed from the sentencing recommendations, giving Mr. Kerik a longer sentence.  “I think it’s fair to say that with great power comes great responsibility and great consequences,” Judge Robinson said.  “I think the damage caused by Mr. Kerik is in some ways immeasurable.”

The sentencing was the end of a legal saga in which federal prosecutors denounced Mr. Kerik, a former detective who rose to the upper echelons of power, as a corrupt official who sought to trade his authority for lavish benefits....

As the judge delivered the sentence, Mr. Kerik sat impassionately at the defense table, flanked by his lawyers. Behind him, his supporters — including Geraldo Rivera and Steven McDonald, a former New York City police officer who was paralyzed from the neck down in 1986 — filled the gallery.

Mr. Kerik will begin serving his sentence on May 17.  Prosecutors had requested that Mr. Kerik be sent to prison immediately, but Judge Robinson allowed him to surrender later to get his affairs in order in light of the longer sentence.  Mr. Kerik has awaited sentencing under strict house arrest at his home in Franklin Lakes, N.J.

February 18, 2010 in Celebrity sentencings, White-collar sentencing | Permalink | Comments (3) | TrackBack

"Judicial Discrection: A Look Back and a Look Forward Five Years After Booker"

The title of this post is the title of this terrific symposium about federal sentencing law in which I am participating today.  Though sponsored by the University of Utah, I am actually about to head to DC to participate in the event from inside the Beltway, along with some of the other of these impressive participants:

Here is how the promotional materials describe the event:

This symposium will explore issues surrounding judicial discretion and sentencing.  After opening remarks from Judge William K. Sessions III, Chair of the U.S. Sentencing Commission, panelists will explore the extent to which the sentencing guidelines continue to provide useful guidance to judges five years after the Supreme Court’s decision in United States v. Booker.  The panelists will also explore mandatory minimum sentencing schemes and ask whether they usefully impose tough punishment or inappropriately restrict the ability of judges to make the punishment fit the crime.  The symposium will conclude with a general discussion of sentencing issues and provide an opportunity to audience members to ask questions of the participants.

Excitingly, folks can watch this event live online (as well as comment below) thanks to the magic of the internet and a link at dashboard.law.utah.edu.

February 18, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Legislative Reactions to Booker and Blakely, Who Sentences? | Permalink | Comments (9) | TrackBack

Oklahoma legislature considering the creation of a meth registry

This new AP article, which is headlined "Bill calls for creation of meth registry similar to registry for convicted sex offenders," reports on a new registry idea being discussed in Oklahoma:

A House panel has passed a bill to create a registry of meth offenders similar to the state's sex offender registry.  The House Public Safety Committee on Wednesday approved the bill that would apply to anyone convicted of possession, manufacture or distribution of methamphetamine.

Anyone listed on the registry would be prohibited from purchasing or possessing pseudoephedrine, a common ingredient used to make meth.  The Oklahoma Bureau of Narcotics and Dangerous Drugs would maintain the registry... The bureau reports there has been an increase in meth lab seizures in recent years after a new recipe surfaced that requires smaller amounts of pseudoephedrine.

February 18, 2010 in Criminal Sentences Alternatives, Drug Offense Sentencing | Permalink | Comments (14) | TrackBack

A telling attack on mandating ignition interlocks for all drunk drivers

A local Tennessee paper has this interesting new commentary which is headlined "MADD's interlock proposal lumps all drinkers in same category."  The piece discusses and attacks a legislative proposal in Tennessee that would call for a specific sentencing response to all drunk driving.  Here are excerpts from the commentary:

This week, Mothers Against Drink Driving (MADD) voiced support for a bill to require ignition interlocks for all drunken driving offenders in Tennessee.  And while at first glance it might seem like a good way to get drunks off the road, readers should know that there is an important argument to be made against the mandatory use of these devices in the cars of all offenders....

[T]he proposed law supported by MADD would force judges to order low-BAC, first-time offenders — even those just one sip over the legal limit (and occasionally under the limit) — to install interlocks.  A 120-pound woman can reach the legal limit of 0.08 after two 6-ounce glasses of wine over a two-hour period. Under this new mandate, if she drives she will automatically be punished with an interlock for behavior that, according to studies, is equivalent to driving while talking on a "hands-free" cell phone. 

Mandating ignition interlocks for all DUI offenders is a one-size-fits-all approach that would punish that woman the same way as the hardcore abusers who cause the vast majority of alcohol-impaired fatalities. It eliminates a judge's ability to treat these very different offenders differently.

America's criminal justice system has a terrible record with universal sentencing guidelines. It's a lesson that the California legislature learned after a "three strikes" law sentenced a man to 25 years in prison for stealing a piece of pizza. Judges should be able to adjust some sentences based on circumstances and common sense....

In addition to targeting the wrong offenders, this mandate will cost millions of dollars to enforce. Based on estimates from the American Probation and Parole Association (APPA), it would cost Tennessee at least $10 million per year to ensure that offenders comply with the interlock mandate.

Most state legislatures have already made it clear that they favor judicial discretion for marginal DUI offenders by rejecting low-level first-offender mandates or passing ignition interlock bills that target high-BAC and repeat offenders. Tennessee should do the same....

MADD is trying to subtly encourage Americans to be supportive of such in-car alcohol-sensors by making interlock technology more ubiquitous. That's why requiring interlocks for all offenders is MADD's top priority in Tennessee.  Tennessee should reject this proposal to require interlocks for all offenders. Instead, the state should target the high-BAC and repeat offenders who pose the biggest threat to safety on the roads.

I do not believe I have previously seen the standard arguments against mandatory prison sentences marshalled against requiring ignition interlocks for all drunk driving offenders, and it is especially interesting to see here the blanket (and, in my view, inaccurate) assertion that "America's criminal justice system has a terrible record with universal sentencing guidelines."  Though I fully agree that a "one-size-fits-all approach" to most sentencing issues is a very bad idea, especially when costly incarceration is involved, I am not sure that the classic arguments against mandatory minimum prison terms are quite so strong with respect to a simply requiring a tailored alternative sentencing mechanism like ignition interlocks for drunk drivers which merely seeks to prevent repetition of a particular type of illegal behavior.

So, who exactly is making this attack on the proposed law supported by MADD in Tennessee?  Is it the folks at the organization Families Against Mandatory Minimums?  Is it a representative of a woman's group concerned that petite women might get punished "the same way as the hardcore abusers"?  Nope, it is Sarah Longwell, who is "the managing director of the American Beverage Institute in Washington."  I am pleased to learn that the American Beverage Institute is so troubled by mandatory sentencing provisions, but I am sorry that this concern only finds expression in a forceful commentary when those provisions are targetting drunk drivers.

Some related posts on sentencing drunk drivers:

February 18, 2010 in Criminal Sentences Alternatives, Mandatory minimum sentencing statutes, Offense Characteristics, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack

"State Court Standards of Review for the Right to Keep and Bear Arms"

The title of this post is the title of this timely piece now on SSRN from David Kopel and Clayton Cramer. For those of us thinking about how the Second Amendment should be applied after Heller (and especially if/when the big upcoming incorporation case brings Heller to the states), this piece looks like a must-read. Here is the abstract:

Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues.  Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means.  Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms).  Even when formally applying "reasonableness," many courts have used reasonableness as a serious, non-deferential standard of review.  District of Columbia v. Heller teaches that supine standards of review, such as deferring to the mere invocation of "police power," are inappropriate in Second Amendment interpretation. This article surveys important state cases from the Early Republic to the present, and explains how they may be applied to the Second Amendment.

February 18, 2010 in Second Amendment issues | Permalink | Comments (1) | TrackBack

February 17, 2010

Split Ninth Circuit affirms as substantively reasonable a probation sentence for "big time thief”

Distracted by another(!) snow day yesterday, I missed the very significant split sentencing ruling handed down by a Ninth Circuit panel in US v. Edwards, No. 08-30055 (9th Cir. Feb. 16, 2010) (available here). Here is how the majority opinion (per Judge Pregerson) gets started:

In 2004, Duncan W. Edwards pleaded guilty to one count of bankruptcy fraud in violation of 18 U.S.C. § 152(9) and one count of making a false statement to a bank in violation of 18 U.S.C. § 1014.  Although the advisory Sentencing Guidelines range called for twenty-seven to thirty-three months’ incarceration, the district court sentenced Edwards to five years’ probation (the maximum term of probation), seven months of which was to be served under house arrest, a $5,000 fine, and a special assessment of $100 on each count of conviction. After the Government appealed and the case was remanded to the district court, the district court imposed the same sentence.  After a second appeal and a second remand to the district court, the district court imposed the same sentence of probation but added a restitution order in the amount of $102,696.07.  For the third time, the Government challenges the district court’s sentence as substantively unreasonable.  Edwards cross-appeals from the district court’s order of restitution.

Judge Bea's partial dissent starts this way:

I agree with Judge Kleinfeld’s description of Edwards: he “is a big time thief.”  United States v. Edwards, 158 Fed. App’x 930, 931 (9th Cir. 2005) (Kleinfeld, J., dissenting).  Edwards was convicted of bank fraud in an Arizona state court after he stole more than $3 million.  While Edwards was on probation imposed as part of his sentence for the Arizona fraud conviction, he lied to another bank to obtain a new bank loan—he did not tell the new bank he had been convicted of defrauding the earlier bank.  He then filed for bankruptcy to avoid paying his new, fraudulently procured loan, but he knowingly did not fully disclose all of his assets and liabilities to the bankruptcy court, whose aid he had sought to avoid his loan obligations. When the government finally caught up with him and brought the fraud charges in this case, he pleaded guilty to bank fraud and to bankruptcy fraud.  The intended and actual losses from Edwards’s bank fraud and bankruptcy fraud totaled more than $500,000.   The advisory Guidelines sentencing range was twenty-seven to thirty-three months’ imprisonment, yet the sentence today approved by the majority will result in Edwards serving no time in prison.  The district court sentenced Edwards to sixty months’ probation— with seven months served under house arrest—and ordered him to pay just over $100,000 in restitution.  The majority concludes this sentence is substantively reasonable. But like Judge Kleinfeld, “I cannot see how a sentence anything like the one imposed could be reasonable under 18 U.S.C. § 3553(a)(2).” Id. Therefore, I respectfully dissent from the majority’s holding that Edwards’s below-Guidelines sentence is substantively reasonable.

Though one should never bank on en banc review, I have a feeling that this Edwards case may become the subject of still further activity in the Ninth Circuit.

February 17, 2010 in Booker in the Circuits, White-collar sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

First exoneration in North Carolina thanks to state's innocence commission

A helpful reader sent me this breaking local news piece from North Carolina which is headlined "Innocence panel sets Greg Taylor free." Here are the basic details:

Three judges voted today to give Greg Taylor his life back. The judges voted unanimously to undo Taylor's 1993 conviction of murdering Jacquetta Thomas, a prostitute in Southeast Raleigh. Their decision exonerates Taylor and releases him from a term of life in prison.

After the decision was read, Wake County District Attorney Colon Willoughby walked over to Taylor, shook his hand and apologized that he had been convicted. Taylor was then taken into a private room, where his leg shackles were removed, before he returned to reunite with his family. He met his son-in-law, Charles Puryear, for the first time and hugged Yolanda Littlejohn, sister of the woman he had been accused of murdering.

Taylor and his lawyers met with the media in the lobby of the Campbell University Law School in downtown Raleigh where the historical event occurred.  "We have been blessed in the state of North Carolina to make more progress as it relates to the system of justice. This is one those fantastic days. We all should look at this as a positive thing," said Joseph B. Chesire V, one of Taylor's attorneys.

After Chesire spoke, Taylor stepped up to the microphone and struggled for just the right words. Then he went into a litany of thanks. He then addressed a justice system that not only wrongly convicted him, but also freed him. "This is not about innocent people. This is about injustice," he said.

Taylor, 47, is the first person in North Carolina to be exonerated using a new process established to handle convicted people's claims of innocence. Last September, the North Carolina Innocence Inquiry Commission voted unanimously that Taylor's case warranted further review.

Three judges -- Wake County Superior Court Judge Howard Manning, District Judge Tanya Wallace of Rockingham and Mecklenberg County Superior Court Judge Calvin Murphy -- were appointed to consider Taylor's case this month.

Though this is not, obviously, a pure sentencing story, I find it interesting and important as an example of innovative ways to deal with innocence concerns.  Especially if/when abolitionists in a particular state contend that the death penalty should be eliminated because of innocence worries, I am now likely to respond that a better first response would be the creation of an Innocence Inquiry Commission.  Similarly, I think the frequent calls to reduce or restrict avenues for collateral attacks on convictions would be more compelling only if and when more jurisdictions create special bodies to deal with factually wrongful convictions (as opposed to legally wrongful convictions, which current forms of habeas can usually handle).

February 17, 2010 in Who Sentences? | Permalink | Comments (1) | TrackBack

Lots of good reading in NYU Center's "Prosecution Notes"

I am pleased to report on the publication of a cool new document from the Center on the Administration of Criminal Law at NYU School of Law.

Specifically, available here is the Center's first newsletter, "Prosecution Notes," which includes lots of notable substantive content.  Part of this content includes (1) an article by "Michael L. Volkov and Allyson Miller of the law firm Dickinson Wright PLLC [which] analyze[s] recent developments in the area of alleged prosecutorial misconduct and offer ideas for policy and legal reform," and (2) "summaries of all 27 criminal law decisions from the 2008-09 Supreme Court Term."

Check it out.

February 17, 2010 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Does everyone agree the guideline sentence recommended for mass credit card hacker "ludicrous"?

The question in the title of this post is prompted by this new (and new age?) sentencing story, which is headlined "Hacker Sentenced To Prison for Credit Card Scam."  Here are the interesting basics:

A San Francisco man who had more than 1.8 million stolen bank and credit card numbers on his home computers was sentenced Friday to 13 years in federal prison and ordered to repay $27.5 million to the banks and credit card companies he victimized.

Max Ray Vision, who legally changed his last name from Butler, had pleaded guilty in June to his role in an online clearinghouse where identity thieves shared stolen information.  A self-taught computer whiz who fell in love with the devices as an 8-year-old boy in his father's computer store, Vision told Senior U.S. District Judge Maurice B. Cohill Jr. that he was mesmerized by "the thrill of hacking, being addicted to it."

Bespectacled, soft-spoken and articulate, the 37-year-old Vision told the judge he had changed and realizes what he did was wrong. "You probably hear that a lot, but it's absolutely true," he said.

Cohill's sentence was based on a joint recommendation by federal prosecutors and Vision's public defender, Michael Novara.  Federal sentencing guidelines suggested a sentence of 30 years to life, which Novara called "ludicrous."

Still, Assistant U.S. Attorney Luke Dembosky said serious punishment was merited because of the scale of Vision's crimes. Dembosky agreed to the lesser sentence because Vision has continued to work with the government under terms that remain sealed.  All Dembosky would say is, "It could relate to a whole range of things."

Before his arrest in 2007, Vision had developed software to prevent hacking and had even worked as a volunteer who helped the FBI understand and prevent cyber crimes.  Dembosky agreed that Vision wasn't mean-spirited, but was more "wide-eyed" and "curious" about what he could accomplish behind a keyboard.  "Unfortunately, that curiosity took a dark turn and that's why we're here today," Dembosky said. "The amount of damage a person can cause with a keyboard in this day and age is astronomical."

Visa, MasterCard, American Express and Discover tracked more than $86 million in fraudulent purchases to the account numbers found on Vision's computers.  In all, 10,000 financial institutions were victimized, Dembosky said.  Vision was charged in Pittsburgh because he sold more than 100 credit card numbers and related information to a western Pennsylvania resident who cooperated with the investigation of a Web site called cardersmarket.com.  About 4,500 people worldwide could trade or access stolen credit information on the Web site from 2005 until it was shut down in 2007....

Although authorities found 1.8 million stolen credit card numbers on his computers, they said they were confident that Vision had obtained 1.1 million directly, Dembosky said.  The others might have come from other sources. Vision's $27.5 million restitution was calculated by multiplying the 1.1 million by the roughly $25 it costs banks and credit card companies to replace each stolen credit card number, Dembosky said. "No one should think that's the amount of money Max gained as a result of this misadventure," said Novara, who claims Vision likely netted less than $1 million from selling the numbers.

Given the facts of this case and the reality that, in the words of the prosecutor here, the "amount of damage a person can cause with a keyboard in this day and age is astronomical," I am not so ready or eager to assert that the guideline-recommended sentence of 30 to life really was "ludicrous."  Let me explain.

First, though maybe it is unfair to compare Max Ray Vision to Bernie Madoff, I do think it is reasonable to suppose that Vision may be among the "worst of the worst" financial hackers.  If the "worst of the worst" Ponzi schemer earned himself 150 years in prison, is 30 years for the "worst of the worst" financial hacker really so out of whack?  Moreover, I think the need for, and potential value of, general deterrence in this setting is pretty strong, especially with respect to others who may be inclined to join an "online clearinghouse where identity thieves shared stolen information." 

Finally, and perhaps most important, the threat of decades in prison no doubt was a primary reason Max Ray Vision was willing to plead guilty and has "continued to work with the government" to help bring down other financial hackers and identity thieves.  Though few are eager to either admit or endorse the value of extreme guideline sentences to induce pleas and cooperation, the threat of extreme sentences always serves to grease the wheels of the criminal justice system.

I absolutely do not mean this post to be a general defense of the guidelines' general approach to financial offenses, which I think are flawed in so many ways.  But, in light of the unique facts of this Vision case, I do wonder if others agree with the assertion that the guideline range suggested here was truly  "ludicrous."

February 17, 2010 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (8) | TrackBack

"Harsh Punishment Backfires, Researcher Says"

The title of this post is the headline of this piece from About.com's Crime/Punishment section.  Here is how it gets started:

The current prison system puts too much emphasis on harsh punishment and not enough on rehabilitation and simply doesn't work, according to a criminal justice expert. Focusing on reducing prison populations and offering job skill training could greatly reduce recidivism, research shows.

The current system only provides a breeding ground for more aggressive and violent behavior, according to Joel Dvoskin, PhD of the University of Arizona. "The current design of prison systems doesn't work," said Dvoskin, in a news release. "Overly punitive approaches used on violent, angry criminals only provide a breeding ground for more anger and more violence."

"Prison environments are replete with aggressive behaviors, and people learn from watching others acting aggressively to get what they want," Dvoskin said.  In his up-coming book, "Applying Social Science to Reduce Violent Offending," Dvoskin says behavior modification and social learning principles can work inside prison just as they do outside.

February 17, 2010 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (20) | TrackBack

February 16, 2010

Florida executes murderer despite pleas for mercy from many religious figures

As detailed in this local news article, Florida this evening carried out an execution of murderer whose death sentence had prompted many national and international religious figures to urge a grant of executive clemency.  Here are the details:

Martin Grossman was declared dead at 6:17 p.m. at the Florida state prison in Starke, 15 minutes after the start of his execution by lethal injection.

In a final statement, Grossman expressed remorse to the family of Peggy Park, the Florida wildlife officer he beat and shot to death more than 25 years ago. "I would like to extend my heartfelt remorse to the victim's family," Grossman said. "I fully regret everything that happened that night, everything that was done, whether I remember everything or not. I accept responsibility."

"I would like to say a prayer," the 45-year-old man added, then, lying on a gurney, hands strapped to arm boards and with needles in both arms, he began reciting a Jewish prayer called the Schma. It is the most sacred prayer in Judaism and the first prayer that Jewish children learn. Among its verses: "The Lord is our God, God is one."

Park's brother, sister and mother were among the 20 witnesses to the execution. They were seated directly in front of Grossman, who was visible through a window.

The Vatican, Jewish leaders as far away as Israel, and thousands of petitioners called for a stop to the execution on several grounds, including questions about whether the slaying was premeditated, Grossman's diminished IQ and his remorse for the crime. Grossman's religious adviser, Rabbi Menachem Katz, was with him in his cell throughout the day....

Last-minute efforts to spare Grossman's life extended to the Vatican, which sent a letter to Gov. Charlie Crist saying "the prisoner has repented and is now a changed person." The letter was sent in response to a request from Rabbi Shear-Yashuv Cohen, chief Rabbi of Haifa, Israel.

Grossman is the 69th person executed in Florida since the death penalty was reinstated in 1979, and the 25th by lethal injection. He was the fifth inmate executed under Florida Gov. Charlie Crist, who has been in office for three years.

Crist signed Grossman's death warrant Jan. 12. Since that time, his office has received about 49,000 letters, telephone calls or e-mails, according to a spokesman.

February 16, 2010 in Clemency and Pardons, Death Penalty Reforms | Permalink | Comments (10) | TrackBack

"Plea Bargaining in the Shadow of Terror"

The title of this post is the partial title of this timely new piece on SSRN by Lucian Dervan. The full title is "Plea Bargaining in the Shadow of Terror: Plea Bargaining During the War on Terrorism and the Dual Chambers of the Plea Bargaining Machine," and here is the abstract:

While obtaining the exact number of defendants who have pleaded guilty to terrorism or terrorism related charges since September 11, 2001 is impossible due to the federal government’s refusal to release such information, it is estimated that there have been several hundred convictions of which over 80% resulted from a plea of guilty.  While this plea rate for terrorism cases is certainly lower than the plea rate for other federal offenses, which on average has remained above 95% for almost every year since 1999, a plea rate in excess of 80% is remarkably high given the psyche of those who would engage in the acts being prosecuted.  This article seeks to understand why a terrorist would plead guilty and, by the same token, why the United States government would offer leniency to an admitted enemy in the war on terrorism in return for such a plea.  Through this analysis, a quarter century of plea bargaining theory will be reevaluated and the existing conflict between two competing theories of plea bargaining will be harmonized into a more encompassing theory that better explains the operation of the entire plea bargaining process.

This article is particularly timely as recently released information from the government indicates that the Christmas Day Bomber, Umar Farouk Abdulmutallab, is cooperating with the FBI and may be preparing to enter into a plea agreement.  If this is true, this will serve as yet another example of the significance of plea bargaining in the American criminal justice system and the importance of further examination of its operation.  Though this article focuses on terrorism prosecutions as a vehicle for exploring plea bargaining, the article’s proposed theory regarding the operation of the plea bargaining machine applies to all manner of criminal prosecution.  The author welcomes comments and suggestions regarding the article.

February 16, 2010 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack