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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

Pope joins rabbis in urging Florida Governor to commute murderer's death sentence

As detailed in this new local article, which is headlined "Pope calls for mercy for killer Martin Grossman as execution nears," an array of religious voices are now urging Florida Governr Charlie Crist to give condemned murderer Martin Grossman a sentencing break.  Here are the details of the latest plea for mercy and about the fascinating state criminal case now generating papal attention:

The Vatican is calling for mercy for a man scheduled to be executed Tuesday evening for killing a young Florida wildlife officer 25 years ago. But even the pope doesn't argue that Martin Edward Grossman is innocent.

Grossman, 45, who shot and killed Margaret "Peggy" Park, 26, on Dec. 13, 1984, "has repented and is now a changed person, having become a man of faith," wrote Archbishop Fernando Filoni on behalf of Pope Benedict XVI. He asked for "whatever steps may be possible to save the life of Mr. Grossman."

Filoni wrote the letter at the behest of the chief rabbi of Israel, Shear-Yashuv Cohen....

Activists against the death penalty took up Grossman's case, including several Jewish organizations that pleaded for clemency, asking Gov. Charlie Crist to commute his sentence to life in prison.  Amnesty International said it had "serious questions about the quality of his legal representation and compelling mental health evidence that was never presented to a jury."

More than 26,000 people signed an online petition asking that Grossman's life be spared. Nobel prize winner and Holocaust survivor Elie Wiesel also weighed in on his behalf.

Rabbis from groups including the Rabbinical Council of America, the Aleph Institute and the National Council of Young Israel wrote to Crist on Feb. 9 asking him to spare Grossman's life because he "has shown profound remorse and regret" for the officer's murder.  "He acted under the influence of drugs and alcohol. His fatal shooting of Ms. Parks was not an act of premeditation but of panic," the letter said.  "He has transformed himself from a deeply troubled teenager into a gentle and simple man, a proud practitioner of his faith and a humble servant of God."

A spokesman for the governor said that by Friday night the office had received more than 9,443 e-mails and more than 7,849 phone calls about the Grossman case.  "Signing a death warrant is a responsibility that Governor Crist takes very seriously," spokesman Sterling Ivey wrote in an e-mail to the St. Petersburg Times, "and the warrant for Martin Grossman was signed after a careful review."

Grossman would be the first inmate Florida has put to death for killing a law enforcement officer since the September 2006 execution of Clarence Hill.... Grossman, of Pasco County, was 19 when he killed Park as she tried to arrest him and 17-year-old Thayne Nathan Taylor in what is now the Brooker Creek Preserve in Tarpon Springs.

Grossman has spent the latter half of his life in prison for the murder. He is scheduled to die at 6 p.m., the first Florida execution of 2010 and the 69th since the death penalty was restored in 1976....

Park, a Florida Game and Fresh Water Fish Commission officer, found a stolen Luger pistol in the van Grossman and Taylor were in and tried to report it. But Grossman, fearing that the offense would violate his probation and land him back in prison, attacked the officer with her own flashlight as she used her radio. "I'm hit," Park yelled over the radio....

Grossman, 6 feet 4 and 225 pounds, overpowered the 5-foot-5, 115-pound officer. He broke her fingers wrenching [a gun] away from Park and shot her in the back of the head. The two men escaped but were arrested 11 days later. Grossman was convicted of first-degree murder and sentenced to death a year to the day of the murder. Taylor was convicted of third-degree murder and served two years of his seven-year sentence....

Park's brother, sister and mother, Peggy, 79, planned to attend the execution.  The mother came from Ohio despite a cardiologist's order not to travel.

Some related recent posts on the Grossman case and on religion and the death penalty:

February 16, 2010 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (12) | TrackBack

New York Times again a little off editorializing on "Justice Kennedy on Prisons"

The title of this post is the headline of this editorial appearing in today's New York Times.  Here are excerpts:

Justice Anthony Kennedy spoke out against excessive prison sentences this month in California, criticizing the state’s deeply misguided three-strikes law. It was a welcome message, delivered with unusual force.  Much of the blame for the law, however, lies with the Supreme Court, which upheld it in a decision on which Justice Kennedy cast the deciding vote....

Sentences in the United States are eight times longer than those handed out in Europe, Justice Kennedy said. California has 185,000 people in prison at a cost of $32,500 each per year, he said. He urged voters and elected officials to compare taxpayer spending on prisons with spending on elementary education.  Justice Kennedy took special aim at the three-strikes law, which puts people behind bars for 25 years to life if they commit a third felony, even a nonviolent one.  The law’s sponsor, he said, is the correctional officers’ union, “and that is sick.”

The criticism was on the mark.  The state’s prison population has soared as a result of harsh sentencing laws and parole rules.  California has been ordered by the courts to bring down the population of its prison system, which is badly overcrowded and unable to provide inmates with adequate medical care....

Justice Kennedy is right that elected officials and voters should pay more attention to overincarceration.  But courts also need to do their part by enforcing constitutional prohibitions on excessive punishment in cases involving people, as well as corporations.

As with many New York Times editorials, this piece raises important issues in an imperfect way.  Specifically, though I share the editorial's concern for the Supreme Court's tepid approach to the Eighth Amendment in non-capital cases, I find inane and pernicious the assertion that "[m]uch of the blame" for California's three-strikes law "lies with the Supreme Court."

Though one can (and I think should) fault the Supreme Court for problematic interpretations of various constitutional provisions, the Court does not merit any blame (let alone "much of the blame") for state decisions to pass stupid or harmful criminal laws and punishment.  Unless and until we collectively decide to give the Justices constitutional authority to be a super-legislature, they cannot and should not be legitimately "blamed" for failing to invalidate stupid or harmful criminal laws and punishments that states decided to adopt. 

Moreover, even if the Supreme Court had struck down one application of California's three-strikes law in the Ewing case, probably only a few hundred of the many tens of thousands incarcerated under this law would have gotten some form of legal relief.  In sharp contrast, the recent rulings by a special Ninth Circuit panel ordering a reduction in California's total prison population, has effectively forced elected officials and voters in California to "pay more attention to overincarceration."  Indeed, the Supreme Court has been asked by California to undo these ordered prison population reductions, and I suspect Justice Kennedy has played a key role in keeping the Justices from interfering with those important orders.

February 16, 2010 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Lots worth reading in the latest issue of "Justice Research and Policy"

Via e-mail, I receive notice of the publication of the latest issue of the journal Justice Research and Policy. Here is the summary I received via e-mail of some of the articles that sentencing fans might be eager to check out:

This issue of JRP includes articles on: 1) predictors of recidivism among registered sex offenders; 2) situational aspects of sexual offending and their implications for residence restriction laws; 3) organizational approaches to drug law enforcement by local police departments: specialized drug units or multi-agency task forces; 4) racial integration in California men's prisons; 5) the impact of citizen oversight of policing on the incidence of lethal force.

February 16, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

February 15, 2010

Any Presidents' Day advice for Prez Obama on likely upcoming SCOTUS nominations?

As detailed in this National Law Journal article from Tony Mauro, which is Talk Grows of 2 Openings at High Court: White House reportedly preparing for more Supreme Court exits," the buzz surrounding possible SCOTUS openning(s) continues to grow.  Here is the start of Tony's interesting and effective piece:

If two U.S. Supreme Court vacancies materialize this spring, they may have the same impact on the nation's capital that two heavy snowfalls have had this month: gridlock, paralysis and frayed tempers.

Stories raising the possibility that justices John Paul Stevens and Ruth Bader Ginsburg may leave at roughly the same time have suddenly become part of the Washington conversation, already fueling nightmare scenarios of dragged-out battles between a weakened President Barack Obama and a fiercely contentious Senate over possible replacements.

"Republicans are out for blood, and Democrats are out for a fight," said Steve Wermiel, professor at American University Washington College of Law. "We're close to a peak of partisan wrangling in Washington."

Speculation about potential nominees has already begun, with Solicitor General Elena Kagan and Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit winning the most mentions at this early stage. Secretary of State Hillary Clinton is also the subject of growing speculation as a possible nominee.

In a number of prior posts (some of which are linked below), I have urged readers to provide advice (or predictions) about whom President Obama should nominate for any open SCOTUS seat.  In this post, I would be eager to hear reader advice to President Obama concerning how he should try to respond to one or two open SCOTUS seats.

Specifically, do readers think Prez Obama should try to name a replacement for John Paul Stevens and/or Ruth Bader Ginsburg extra quickly after an announced retirement, or should he take a lot of time to try to build speculation and support around a particular short-lister?  Should Prez Obama actively reach out to Senators for suggestions (as I recall President Bush did before nominating Harriet Miers)?  Should Prez Obama be drawn to a more moderate nominee (as defined by reputation and work history) or toward a more exteme nominee?

Here's my two cents of advice:  I urge Prez Obama pick more "first" types of nominees, which could involve any varied combination of gender, racial, ethnic and/or professional and personal backgrounds.  I also urge him to nominate whichever "first" he thinks will make the best Justice, and to name this person as quickly as possible after a sitting Justice announces she or he is stepping down, and to urge hearings and a vote on this nominee ASAP.  I believe that following this script will, for all practical purposes, prevent a filibuster no matter what the perceived politics of the nominee.

Some related new and old posts:

February 15, 2010 in Who Sentences? | Permalink | Comments (16) | TrackBack

Six-month sentence for importing the wrong kind of comic books from Japan

Thanks to this post at How Appealing, I saw this interesting item on a Wired.com blog, which is titled "'Obscene' U.S. Manga Collector Jailed 6 Months."  Here are the particulars:

A U.S. comic book collector is being sentenced to six months in prison after pleading guilty to importing and possessing Japanese manga books depicting illustrations of child sex and bestiality. Christopher Handley was sentenced in Iowa on Thursday, almost a year after pleading guilty to charges of possessing “obscene visual representations of the sexual abuse of children.”

The 40-year-old was charged under the 2003 Protect Act, which outlaws cartoons, drawings, sculptures or paintings depicting minors engaging in sexually explicit conduct, and which lack “serious literary, artistic, political, or scientific value.” 

Handley was the nation’s first to be convicted under that law for possessing cartoon art, without any evidence that he also collected or viewed genuine child pornography.  Without a plea deal with federal authorities, he faced a maximum 15-year sentence.

Comic fans were outraged, saying jailing someone over manga does not protect children from sexual abuse. “I’d say the anime community’s reaction to this, since day one, has been almost exclusively one of support for Handley and disgust with the U.S. courts and legal system,” Christopher MacDonald, editor of Anime News Network, said in an e-mail....

The case began in 2006, when customs officials intercepted and opened a package from Japan addressed to Handley.  Seven books of manga inside contained cartoon drawings of minors engaged in sexually explicit acts and bestiality.

Additional information about this prosecution and sentencing can be found in this report from the Anime News Network, which is headlined "Christopher Handley Sentenced to 6 Months for 'Obscene' Manga."

Because I am not a First Amendment guru, I have no strong sense of whether Christopher Handley's prosecution and conviction for importing the wrong kind of comic books from Japan should be considered constitutionally problematic.  But, as a sentencing guru, I do have a strong sense that the threat of a much longer (guideline recommended?) sentence after any trial likely prompted Handley to plead guilty and to apparently forego whatever constitutional defenses he might have had available.

February 15, 2010 in Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

"Suspect plays ‘Dating Game’ video in murder trial"

The title of this post is the headline of this new AP article that seems to be a fitting macabre the day after Valentine's Day. Here is how the piece starts:

A convicted rapist who could face the death penalty in five alleged serial killings from the 1970s presented "The Dating Game" defense Tuesday during a surreal court session in which he questioned himself on the witness stand.

Rodney James Alcala, 66, who is acting as his own lawyer, played a clip from an episode of the game show that he won in September 1978 in an attempt to prove his innocence in one of the killings.

Alcala told jurors they could see a flash of two gold ball earrings in his double-pierced left ear as he gives the game show's signoff salute.  Prosecutors believe a pair of gold ball earrings found in a red pouch in a Seattle storage locker rented by Alcala belonged to the youngest of the alleged victims, 12-year-old Robin Samsoe of Huntington Beach, in Orange County.

But Alcala told jurors the clip proves he owned the earrings almost a year before Samsoe's disappearance on June 20, 1979.  In the segment, he can be seen dancing to the closing music while wearing a black bell-bottom pantsuit and open-necked white shirt....

Alcala, a photographer and UCLA undergraduate with a purported IQ between 160 and 170, made the highly unusual decision to represent himself in the potential death penalty trial and took the stand in his own defense.  During an often bizarre day of testimony, the defendant referred to himself as Mr. Alcala as he posed questions and then responded with long and sometimes rambling answers.  Prosecutors will begin their cross-examination Wednesday.

February 15, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

February 14, 2010

"Oldest US death row inmate dead at 94 in Arizona"

The title of this post is the headline of this new AP article.  Here are a few of the particulars:

Deaf, nearly blind, confined to a wheelchair and suffering from dementia and mental illness, the oldest death row inmate in the United States has died of natural causes at age 94. Viva Leroy Nash died late Friday at the state's prison complex in Florence, said an Arizona Department of Corrections spokesman....

Nash had been imprisoned almost continuously since he was 15, said one of his appellate attorneys, Thomas Phalen....  "He was born in 1915 and he was sent to prison in 1930," Phalen said. "Think about it — he had 15 years of life in southern Utah, at a time when Utah and Arizona was the wild, wild West — and he went to prison in 1930, and he remained in prison for the next 80 years, more or less."...  Phalen said his research shows that Nash grew up in southern Utah and was sent to the federal prison in Leavenworth, Kan., in 1930 for an armed robbery.

He spent 25 years in prison for shooting a Connecticut police officer in 1947.  In 1977, Nash was sentenced to two consecutive life sentences for a robbery and murder in Salt Lake City but escaped from a prison work crew in October 1982.

Three weeks later, on Nov. 3, 1982, Nash went into a coin shop in Phoenix and demanded money from employee Greggory West.  Nash shot West three times, killing him.  Another employee was in the line of fire but was not hit, according to the corrections department.  As Nash ran away, a nearby shop owner pointed a gun at him and told him to stop. Nash grabbed the weapon and the two men struggled over it until police arrived and arrested him.

He was convicted of first-degree murder, armed robbery, aggravated assault and theft, and sentenced to death in 1983.  The Arizona Supreme Court upheld the conviction in 1985 and Nash then filed a series of unsuccessful appeals in both state and federal court.

His most recent appeal was rejected by a U.S. District Court judge in 2006, but the 9th U.S. Circuit Court of Appeals ruled in September that he was entitled to a hearing to determine if he was competent to assist in his defense. Doctors who had examined him told the court he suffered from a delusional disorder and memory problems and was incompetent.

Is it inappropriate to suggest that the Ninth Circuit's most recent effort to keep Nash alive seems to now have been reversed by the ultimate higher authority?

February 14, 2010 in Death Penalty Reforms | Permalink | Comments (13) | TrackBack

Fascinating account of how new US Attorney got her job

The Detroit Free Press has this really interesting article about a new Michigan US Attorney. The piece is headlined "McQuade's plan for revamping office won her the U.S. attorney post," and here are excerpts: B

Barbara McQuade remembers the day she made up her mind to become the next U.S. attorney in Detroit. “It was the day I didn’t get the criminal chief job” in 2008, McQuade told the Free Press.

Disappointed that she hadn’t landed one of the office’s top leadership posts — yet confident that she had the skills to run the federal government’s 108-member law firm in Detroit — McQuade, then 43, spent the next two years canvassing judges, prosecutors, defense lawyers and community leaders to assess the performance of the U.S. Attorney’s Office.

She got an earful from critics who said the office files too few criminal cases, takes too long to bring them to trial and loses too many high-profile cases. McQuade said she used the critiques to create a detailed plan to overhaul the office. And her persistence paid off.

In November, President Barack Obama nominated her for the $155,500-a-year position. The Senate confirmed her on Christmas Eve. And she was sworn in Jan. 4 — the first woman to hold the job in the 34-county eastern half of lower Michigan....

More than two dozen lawyers applied to become the U.S. attorney in eastern Michigan.  But McQuade clinched the job because she wrote a detailed action plan to revamp the office. Then she gave it to screening committee members so they could ask sharper questions at her interview.

"What she did was virtually unheard of," one panelist said. The committee member, who didn't want to be identified because he wasn't authorized to talk publicly about the process, said McQuade was the only candidate to show up with a written blueprint for reform.

Now comes the hard part -- putting the plan in motion so the office can bring more cases faster. It remains to be seen how her staff will greet change....

During an interview last month, McQuade told Free Press editors and writers that she plans to create smaller working groups so the prosecutors will be more accountable for their time. She wants to prosecute more gun and violent crime cases that would relieve the load on county prosecutors and give her prosecutors more courtroom time to hone their trial skills.

She said the new groups likely will be headed by supervisors who shouldn't think about their positions as lifetime appointments.  "We've sort of promoted people for life and then they sort of sit there; and although they have a lot to offer, we haven't tried new ideas because people have been occupying the same places for a long time," she said.

February 14, 2010 in Who Sentences? | Permalink | Comments (2) | TrackBack

Intriguing (not quite) criminal past for mass killer at University of Alabama

This New York Times article, which is headlined "A Previous Shooting Death at the Hand of Alabama Suspect," discusses the notable history with the criminal law of the killer who went on a shooting spree at the University of Alabama.  Here is how the article begins:

The neurobiologist accused of killing three colleagues at the University of Alabama, Huntsville, on Friday fatally shot her brother in 1986 in suburban Boston, and the police there are now questioning whether their department mishandled that case when it let her go without filing charges.

Early Saturday, the police in Huntsville charged the neurobiologist, Amy Bishop, who they said was 45, with capital murder in the shootings Friday that also left three people wounded during a faculty meeting.  Dr. Bishop, who appeared to have had a promising future in the biotechnology business, had recently been told she would not be granted tenure, university officials said.

On Saturday afternoon, the police in Braintree, Mass., announced that 24 years ago, Dr. Bishop had fatally wounded her brother, Seth Bishop, in an argument at their home, which The Boston Globefirst reported on its Web site.  The police were considering reopening the case, in which she was not charged and the report by the officer on duty at the time was no longer available, said Paul Frazier, the Braintree police chief.

“The release of Ms. Bishop did not sit well with the police officers,” Chief Frazier said in a statement, “and I can assure you that this would not happen in this day and age.”  He said at a news conference on Saturday that the original account describing the shooting as an accident had been inaccurate and, The Globe said, that while he was reluctant to use the word “cover-up,” it did not “look good” that the detailed records of the case have been missing since 1988.

What's really interesting to consider in this case is what likely would have happened if criminal charges had been filed in 1986 after Bishop fatally shot her brother.  It seems likely she would have been able to plead, and also would have pleaded, guilty to some form of lesser homicide charge due to uncertainty about her criminal intent.  As a result, Bishop certainly would not have served more than a few years in prison, at most.  Thus, no one can sensibly assert that a tougher approach to her prior shooting would have prevented her from being free to commit another killing a quarter-century later.

And yet, had Bishop's earlier case been handed differently, it is really unlikely she would have had the professional and personal life that led her to become the "grant-winning scientist and a mother of four" who walked into a faculty meeting guns a-blazing.  Thus, one can sensibly assert that a tougher approach to her prior shooting would have changed the course of her life in ways that likely would not have brought her to the spot where she was driven to go on this particular Alabama shooting spree a quarter-century later.

Adding a final twist to this discussion of Bishop's criminal past is how this history should or will affect her criminal future.  When an Alabama prosecutor considers taking a plea to these capital charges or an Alabama jury considers a capital sentence, should Bishop's prior killing make them more eager to ensure she now gets the ultimate punishment?

UPDATE:  Still more intrigue has emerged surrounding Bishop, as detailed in this new Boston Globe report, which begins this way: "The professor who is accused of killing three colleagues at the University of Alabama on Friday was a suspect in the attempted mail bombing of a Harvard Medical School professor in 1993, a law enforcement official said today."

February 14, 2010 in Death Penalty Reforms, Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (6) | TrackBack

Explaining the virtues of focused prisoner commutations in Michigan

Michigan Governor Jennifer Granholm's legal counsel has this notable new commentary in the Detroit Free Press, which is headlined "Prisoner commutations have been rare and safe for public."  Here is how it starts and ends:

Last week, the Detroit Free Press reported on the clemency process and Gov. Jennifer Granholm's track record in exercising her constitutional authority to commute prison sentences ("Inmates released at record rate," Feb. 7).  The governor has exercised this authority sparingly. N inety-eight percent of commutation requests have been denied.

Over the past seven years, out of more than 6,200 requests for commutations, the governor granted 124.  Many of the inmates granted commutations suffered from debilitating medical conditions, were terminally ill or medically frail, or were deportable to another country. Twenty-four have since died.  None of those released was a serial murderer or rapist. Following release, none has committed a violent crime....

While the Free Press reported that the attorney general often expresses opposition, the record reveals that his office opposed commutation in less than half of the 124 cases where a commutation was granted.  For sentences issued in Wayne County, only 8 of 34 commutations granted were opposed by the county prosecutor.

The commutation process is extremely thorough and an important element in our system of constitutional checks and balances.  Before Gov. Granholm signs a commutation certificate, she and her legal advisers painstakingly endeavor to ensure that the person is safe to release -- and that commutation is simply the right thing to do.

February 14, 2010 in Clemency and Pardons, Who Sentences? | Permalink | Comments (0) | TrackBack