April 12, 2011
Intriguing health-care fraud sentencing and restitution ruling from Sixth Circuit
Savvy federal criminal justice practitioners know that health-care fraud is a hot topic, and this morning brings a hot new ruling on heath-care fraud sentencing issues from the Sixth Circuit. The ruling in US v. Jones, No. 09-3664 (6th Cir. Apr. 12, 2011) (available here), covers an array of sentencing issues and these snippets provide a taste of some of the specifics:
There is no rule that a district court must rely upon statistical analysis in a situation such as this to determine the amount of loss pursuant to section 2B1.1. However, here, the district court relied solely upon a statistical analysis. Without a sound representative sample, that analysis was flawed. As a result, the amount of loss calculation was clearly erroneous. We remand this case so that the correct amount of loss may be established by a preponderance of the evidence....
In the context of mail fraud convictions, we have read [the mandatory restitutiuon] statutory definition of “victim” to allow for restitution for the loss attributable to all the victims of a defendant’s scheme to defraud, even when the defendant was not indicted or convicted of fraud with respect to each victim....
es’s indictment defined his scheme as a broad, over-arching plan “to defraud and to obtain money by means of false and fraudulent pretenses, representations and promises.” The indictment listed as components the more specific acts falling under that plan such as up-coding, billing for services not rendered to Carter and Tubbs, billing under Stewart’s Medicare Provider Number, and others. Therefore, the grand jury defined Jones’s scheme as a general plan to defraud Medicare and Medicaid by committing many different distinct acts. The scheme included not only the acts of which he was convicted, but also the ones of which he was acquitted.
Accordingly, once the district court correctly determines the amount of loss caused by Jones on remand, it may properly order him to pay restitution for both his convicted and acquitted conduct.
Ohio completes another uneventful single-drug execution
Ohio took over the state lead for executions in 2011 by completing another lethal injection this morning. This local article, headlined "Jailhouse killer Clarence Carter executed; Seven more executions scheduled this year," reports the details:
Clarence Carter paid the ultimate price today for going into a rage and killing a fellow inmate during a jailhouse fight more than 22 years ago. Carter, 49, of Hamilton County, was lethally injected at the Southern Ohio Correctional Facility near Lucasville. His time of death was 10:25 a.m.
He apologized to the family of his victim: "Let them know I'm sorry for what I did." But the victim's mother, Helen L. Bonner, said in a statement, "I have no animosity against him and I have forgiven him for taking my child from me...I am glad that justice is finally served, but my forgiveness toward him will never ease the pain of the loss of my son Johnny."
Carter was the third Ohioan to be put to death already this year. There are seven more executions scheduled through November....
On Dec. 28, 1988, while in the Hamilton County Jail Annex awaiting trial on a murder charge as a self-described "hit man" for a group of Cincinnati drug traffickers, Carter got into a fight with fellow inmate, Johnny Allen, 33. The muscular Carter choked, stomped, punched and kicked Allen during the 25-minute fight, beating him to the point that Allen's mother later said he was "so bruised he was unrecognizable." Carter paused long enough during the beating to wipe the blood from his boots, court records say.
Despite the brutality of the murder and his long, violent criminal record - Carter had strong support from several people who said his crime wasn't the "worst of the worst" for which the death penalty was intended. His backers included former Ohio Supreme Court Justice Herbert R. Brown and former state prisons director Terry Collins. But Gov. John Kasich, who rejected Carter's clemency plea, the Ohio Parole Board and courts at all levels saw things differently.
As revealed in this DPIC webpage, no other state has so far conducted more than two executions in 2011. And, though I am not on expert on yearly state-by-state execution statistics, I suspect it has been quite sometime since a state other than Texas was in the lead for the most executions in a single year this late into the "season." Based on this DPIC list of schedule upcoming executions, however, it looks like Texas is on pace to take back its usually leadship position by the summer.
"Beyond Budget-Cut Criminal Justice"
The title of this post is the title of this new article by Professor Mary Fan, which is now available via SSRN. Here is the abstract:
The criminal justice system is undergoing a massive jolt and potential transformation because of a perfect storm of severe budgetary shortfalls and courts awakening to the role of checking penal severity. A wave of reforms is sweeping the states as budgetary woes are leading to measures once virtually impossible or very difficult because of the political risk of looking soft on crime such as expanded early release, conversion of felonies to misdemeanors and scaling down sentences. The social meaning of ameliorating penal harshness is being redefined as a way to curb wasteful and destructive spending rather than being soft on criminals and garnering bipartisan support among conservative and liberal proponents. On the judicial front, the Supreme Court has resuscitated Eighth Amendment proportionality review in the noncapital context and granted appeal to consider the power of a three-judge court to order California to reduce its prison population and consider alternatives to incarceration. This article explores the future of penal law and theory after the turn to budget-cut criminal justice reform and the awakening of courts at the tipping point where the fiscal and human costs of maintaining the highest per capita incarceration rate in the world have become unsustainable.
The article argues that in this important historical moment, we need long-term guides beyond emergency-response for sustainable penal law and policy reform and a successful jolt out of incapacitation stagnation. We have a fomentation of reforms without orienting theory -- short-term reactions to the unbearable rather than sustainable long-term reorientation. The article lays the foundation for thinking beyond emergency-response by theorizing a turn to rehabilitation pragmatism and penal impact analysis in criminal legislation and politics. The article also sounds a caution about the need to ensure that the selective approach towards picking who benefits from rehabilitative pragmatism helps address rather than aggravate inequities in who bears the burdens of penal harshness and who benefits from measures of mercy.
What is the proper sex offender level for former NFL great Lawrence Taylor?
The question in the title of this post is the one facing a New York state court this morning, as explained in this AP piece:
A hearing is scheduled for Tuesday morning to determine whether Taylor is a Level 1, 2 or 3 sex offender. Taylor's not expected to attend. He was arrested in May after meeting a 16-year-old girl in a suburban hotel. He pleaded guilty in January to sexual misconduct and patronizing an underage prostitute. Taylor was sentenced last month to six years of probation.
He also has to register as a sex offender. His attorney has said Taylor should be at Level 1, or low risk. The state Criminal Justice Services Division says that among other differences, photos of Level 1 offenders aren't posted online. Levels 2 and 3 are posted.
UPDATE: As detailed in this AP article, "Lawrence Taylor, who pleaded guilty in January to sexual misconduct and patronizing a 16-year-old prostitute, was declared a low-risk sex offender on Tuesday, meaning there will be no photo of the former New York Giants linebacker on public online sex-offender registries."
Tennessee Supreme Court endorses expert testimony concerning IQ of condemned
As explained in this local article, on Monday the "Tennessee Supreme Court ruled ... that lower courts may look at more than IQ numbers in determining whether a death row inmate is intellectually disabled and thus ineligible for execution." Here is more on the ruling:
In ruling on the case of a Memphis man on death row for more than 30 years, the high court said judges also may consider expert witness opinions to determine whether a test score accurately reflects a person’s functional IQ.
“We find that (state law) does not require that raw scores on I.Q. tests be accepted at their face value and that the courts may consider competent expert testimony showing that a test score does not accurately reflect a person’s functional I.Q. or that the raw I.Q. test score is artificially inflated or deflated,” Justice William Koch Jr. wrote in the court’s unanimous opinion....
Under Tennessee law, mental retardation, now termed intellectual disability, means significantly below-average intellectual functioning with a functional intelligence quotient of 70 or below; deficits in adaptive behavior, and the intellectual disability must have been manifested by age 18.
The Supreme Court, however, said the law does not indicate what types of evidence may be considered and said there is no requirement that IQ scores be accepted at their face value. The court said the lower courts should have considered testimony from two defense psychologists who said Coleman is intellectually disabled.
The full 46-page ruling in Coleman v. Tennessee, No. W2007-02767-SC-R11-PD (Tenn. April 11, 2011), is available at this link.
New poll shows Californians want to lower punishments for drug users
As detailed in this new Los Angeles Times article, which is headlined "Most California voters say possessing small amount of illegal drugs should be misdemeanor, not felony," a new poll shows that most Californians do not want drug users to be subject to serious criminal sanctions. Here are the details:
A strong majority of California voters believe the penalty for possession of a small amount of an illegal drug for personal use should be reduced from a felony to a misdemeanor, according to a poll released Monday by organizations seeking to relax drug laws.
The survey conducted by a professional polling firm found that almost 75% of California voters likely to cast ballots in 2012 believe the crime should be downgraded to a misdemeanor. And 40% went even further, saying they think it should be dropped to an infraction, which is the equivalent of a speeding ticket and carries no prison time.
The poll did not define what is considered a small amount of a drug. Possession of controlled substances, such as cocaine and heroin, is a felony, although charges are sometimes reduced. Marijuana is treated separately, and possession of an ounce or less is an infraction.
A majority of voters also said California sends too many people to prison. And almost 75% agreed that in the midst of a budget crisis, the state should instead use the millions of dollars spent to imprison drug users on schools, healthcare and law enforcement.
"The point here is that this is an overwhelming majority of California voters," said Margaret Dooley-Sammuli, the deputy state director for Southern California for the Drug Policy Alliance, a national organization that supports efforts to reduce drug sentences. "Californians don't want to waste money on incarcerating people for drug possession. They'd rather see that money go for something else."
The poll was released by the Drug Policy Alliance along with the ACLU of Northern California in San Francisco and the Ella Baker Center for Human Rights in Oakland. It was designed and administered by Lake Research Partners, a Democratic polling firm....
Nearly a quarter of the voters surveyed said Californians caught with a small amount of an illegal drug for personal use should not spend any time behind bars, while 27% said they should be locked up for less than three months. Just 8% suggested incarceration for a year or more.
April 11, 2011
Who should be pleased the jury is still out regarding Barry Bonds?
Because I am not a trial lawyer, I am very bad at assessing what to take away from on-going jury deliberations. Thus, I hope some trial lawyers might opine in the comments on the import of this news today from a federal court in California:
The jurors in the Barry Bonds perjury trial deliberated a second day Monday without a verdict after reviewing testimony by a witness who said she saw Bonds’ personal trainer inject him in the navel.
The panel of eight women and four men listened attentively to a reading of the testimony of Kathy Hoskins, who has known Bonds since childhood and shopped for his clothing from 2001 to 2003.
Hoskins testified that she saw Greg Anderson, Bonds’ personal trainer, inject him in the navel in the 2002 season while she was packing Bonds’ clothes for a road trip. The jury heard evidence that human growth hormone is generally injected in the abdomen.
Bonds, 46, has remained at the courthouse with family and friends while the jury has been out.
Recent related Bonds post:
- Is Barry Bonds going to have to worry soon about federal sentencing realities?
- Is it clear that Barry Bonds would have a 15-21 months guideline range?
Monica Conyers makes impossible(?) sentence modification request from prison
This local piece coming from Detroit, headlined " Monica Conyers asks to serve remainder of her sentence at home," provides an interesting example of a high-profile federal prisoner making what seems to be an impossible sentencing request. Here are the details:
Former City Council President Monica Conyers wants out of "Camp Cupcake." The imprisoned wife of U.S. Rep. John Conyers, D-Detroit, has asked a federal judge to modify her 37-month prison sentence for bribery and let her serve time at home, according to a three-page handwritten letter filed today in U.S. District Court in Detroit.
In arguing for reconsideration, Conyers, 46, said a federal judge failed to consider her age, education, work skills, employment record, family ties and "likihood (sic)" she would commit another crime. Plus, her son's babysitter is returning to school soon, Conyers wrote in the letter to U.S. District Judge Avern Cohn.
Her bid is a long shot considering Conyers has filed an appeal, which is pending before the 6th U.S. Circuit Court of Appeals, said Peter Henning, a law professor at Wayne State University and former federal prosecutor. "You can ask," Henning said. "Barring extraordinary circumstances, I doubt he would reconsider."
The request comes seven months after Conyers reported to a federal women's prison camp in Alderson, W.Va. Dubbed "Camp Cupcake," the prison camp offers plenty of perks, including washers, dryers, microwave ovens, hair dryers, curling irons and cosmetology areas where inmate-to-inmate pedicures and manicures are allowed.
In a letter, Conyers said the court could, as an alternative, sentence her to home confinement, community confinement or intermittent confinement to "correct the blatent (sic) sentencing disparities." Conyers is serving the sentence after pleading guilty to accepting at least $6,000 for her deciding vote in the 2007 Synagro Technologies Inc. sludge contract.
After her sentence, Conyers tried to withdraw her guilty plea and appealed. She complained that she pleaded guilty because she was unable to resist pressure from her lawyer, the government and the news media, according to an appeal brief....
In a letter to The Detroit News this year, Conyers complained that Camp Cupcake doesn't live up to its cushy nickname, provides no second servings of food to inmates and has few education opportunities.
Those interested in seeing Monica Conyers' letter to the judge can check it out at this link. And, as the title to my post is meant to suggest, I am pretty sure Judge Avern Cohn lacks any legal authority to give Conyers' the relief she seeks even if he were moved by her request.
"Drug Policy in Context: Rhetoric and Practice in the United States and the United Kingdom"
The title of this post is the title of this notable new paper from Professot Richard Boldt now available via SSRN. Here is the abstract:
The history of narcotics use and drug control in the U.S. before passage of the Harrison Act in 1914 is similar in important respects to that in the U.K. during the same period. Although the two countries’ paths diverged significantly over the ensuing decades, there has been a convergence of sorts in recent years. In the United States, the trend lines have moved from an active “war on drugs” in which criminal enforcement and punishment have been the primary rhetorical and practical instruments of policy to an evolving approach, at least at the federal level, characterized by a somewhat more pragmatic tone and a more balanced set of interventions that mix enforcement, treatment and prevention. From the British side, the movement has been in the opposite direction, from a longstanding public health approach to an intensifying focus on criminal offending as the primary social risk posed by the misuse of drugs. Thus, just as the criminal justice system long has been the principle front in the U.S. assault on drug abuse, the shift in British drug policy has now made the criminal system in the U.K. a central focus in its efforts to combat the problem of drugs and drug addiction.
This pattern of convergence is likely to be incomplete. Even though actors in each country have been aware of developments in the other (and have even borrowed policy prescriptions from time to time), one critical difference in their parallel histories is likely to be determinative. The American move toward pragmatism, if it is to occur, must be executed against the inertial force generated by policy commitments and social practices of more than seventy-five years standing in which the most dominant feature has been an intense moral disapproval of drugs and those who use them. The British approach to drug policy, on the other hand, does not have to contend with this moral anchor, and therefore is likely to remain more pragmatic and therapeutic in orientation into the foreseeable future.
Rough day for defendants pressing sentencing appeals in Eighth Circuit
A set of opinions released today provide still more proof that, despite repeated SCOTUS post-Booker sentencing reversals, the Eighth Circuit continues to believe precious few defense sentencing arguments are convincing. My friends cut and paste help me provide these unofficial summaries of three notable defense losses from this official circuit webpage:
United States v. Rocio Ortiz, No. 10-1101 (8th Cir. Apr. 11, 2011) (available here) [PUBLISHED] [Riley, Author, with Bye and Melloy, Circuit Judges]: No error in allowing representatives of retailers victimized by defendant's shoplifting scheme to testify at sentencing regarding national losses; district court did not err in departing upward from criminal history category II to category VI or in adding a further offense level for criminal history; where court indicated it would impose the same sentence and for the same reasons, any procedural error in not discussing intermediate criminal history categories was harmless; district court adequately considered the 3553(a) factors and possessed a keen awareness of its authority to sentence outside the guidelines.
United States v. David Mills Becker, No. 10-2263 (8th Cir. Apr. 11, 2011) (available here) [PUBLISHED] [Kyle, Author, with Riley, Chief Judge, and Wollman, Circuit Judge]: District court's comments regarding his prior service on the North Dakota Board of Parole did not create a Rule 32 violation as the court's comments about what might happen in the state system were merely an academic discussion and did not affect its sentencing decision, which was based on the severity and nature of defendant's offense; district court did not err making defendant's federal sentence consecutive to his state time; Guideline Sec. 5G3.1(b) did not apply to defendant's sentence.
United States v. Victor Jones, No. 10-2667 (8th Cir. Apr. 11, 2011) (available here) [PUBLISHED] [Kyle, Author, with Riley, Chief Judge, and Wollman, Circuit Judge]: Defendant's argument that his 188-month was unreasonable is foreclosed by his plea agreement which agreed to a sentence within a 188 to 235 month range; in any event, the sentence was not substantively unreasonable.
These summaries lead me to believe the Oritz case my be the most interesting and consequential of this bunch, but perhaps readers will help me see if there is anything especially important jurisprudentially within this troika of sentencing rulings.
April 10, 2011
"Right-winger + hard time = compassion?"
The title of this post is the headline of this notable piece by Justin Elliot now up at Salon.com, which also has the cool graphic reprinted here and carries this subheading: "Some of the most eloquent advocates for prison reform are conservatives who find themselves behind bars." Here is how the piece gets started:
Last week, disgraced former congressman Duke Cunningham wrote a letter to several media outlets from the federal penitentiary where he has resided since 2006. In it, Cunningham, a conservative Republican who pleaded guilty in a public corruption case in 2005, waxed eloquent about an unlikely topic: prison reform.
"The United States has more more men & women in prison than any other nation including Russia and China," he wrote. "The largest growing number of prisoners, women -- 1-34 Americans are either on probation or in prison. The 95% conviction rate reached by threats of long sentences, intimidation, lies and prosecutorial abuse has got to be reckoned with now, not later." Cunningham also promised he would dedicate his life to prison reform.
We've seen transformations like this before. Cunningham is the latest in a string of conservative political figures to see the light on prison reform following a stint behind bars.
Right-wing media mogul Conrad Black, for example, did two years' hard time after being convicted in a 2007 fraud case. Following his release in 2010, Black has written passionately about prison reform.
While incarcerated, he learned "of the realities of street level American race relations; of the pathology of incorrigible criminals; and of the wasted opportunities for the reintegration of many of these people into society. I saw at close range the failure of the U.S. War on Drugs, with absurd sentences, (including 20 years for marijuana offences, although 42% of Americans have used marijuana and it is the greatest cash crop in California.)."
And, of course, Nixon aide Charles Colson devoted his life to criminal justice reform -- and spreading Christianity among prisoners -- after serving seven months in 1974 for obstruction of justice in a Watergate-related case. Colson's Justice Fellowship organization lobbies for better conditions in prisons and reform of sentencing and the criminal code. The head of Justice Fellowship is Pat Nolan, a former conservative law-and-order Republican in the California assembly who devoted himself to prison reform after serving 29 months for corruption in the 1990s.
The piece concludes with a Q&A intereview in which I speculate on some of the reasons why some conservatives start talking about sentencing and prison reform after they have seen the operation of the criminal justice system first hand.
Understanding the science and debates over lethal injection protocols
The New York Times has this helpful new piece in its "Week in Review" section about the controversies surrounding lethal injection drugs. The piece quotes from various medical authorities and is headlined "What’s in a Lethal Injection ‘Cocktail’?". Here are excerpts:
The latest controversy over the always controversial subject of capital punishment: the drugs used to execute people on death row....
[Recent] challenges have been prompted by a shortage of one of the drugs, sodium thiopental, an anesthetic. The American manufacturer of sodium thiopental, Hospira, recently announced that it would no longer produce the drug, and manufacturers in Europe do not want to supply the drug if it will be used in executions. Some executions have been postponed while states try to sort out the drug situation.
In Texas, which carries out more executions than any other state, the controversy is focused on the proposed switch from sodium thiopental to pentobarbital in a three-drug cocktail.
What is the difference? The two drugs come from the same family: barbiturates, drugs that depress the central nervous system. So, in general, said Dr. John Dombrowski, director of the Washington Pain Center and a board member of the American Society of Anesthesiologists, “it’s like if you ask me what’s the difference between Johnnie Walker Blue, Black and Red — they’re all scotch.”
But sodium thiopental has been commonly used as an anesthetic in hospitals. Pentobarbital has a few medical uses in humans, but is often used by veterinarians to anesthetize or euthanize animals. It has also been used in physician-assisted suicide in Oregon and in Europe....
Sodium thiopental is used in hospitals because it “has a relatively fast onset and it doesn’t last long,” Dr. [Mark A.] Warner [president of the American Society of Anesthesiologists] said. “You want a patient to go sleep and wake up pretty quickly.”
Pentobarbital is a long-acting drug.... used in hospitals in certain circumstances, like inducing a coma in brain-damaged patients because “that allows the brain to use more energy and oxygen to repair itself,” Dr. Warner said. He said it can also be used to stop seizures in patients for whom other drugs are ineffective.
Opponents of the death penalty object to either drug. Some say thiopental can wear off too quickly, allowing inmates to feel pain. Others object to using pentobarbital, because it is so infrequently used in humans.
In the three-step cocktail common in executions, a barbiturate is given with pancuronium bromide, a paralyzing drug, and potassium chloride, which induces cardiac arrest. Dr. [Scott] Segal said all three drugs can have lethal effects. “I’m not sure anyone knows which drug actually kills someone,” he said.
In fact, one can do the job. Ohio has used both barbiturates by themselves in executions.
Baltimore gun offender registry declared unconstitutional as operated
This local article, headlined "Judge says Baltimore gun registry unconstitutional: Decision chides "vague, overly broad" regulations," reports on an interesting and important ruling from Maryland's state courts late last week. Here are the details:
Baltimore's gun offender registry is unconstitutional, a Circuit Court judge ruled Friday, calling into question one of the city's signature programs against gun violence. Judge Alfred Nance said the Police Department had "failed or refused to comply" with establishing clear regulations for the registry, which required people convicted of gun crimes to provide addresses and other information with the city every six months for a period of three years.
The city judge also called the program, created in 2007, "unconstitutionally vague and overly broad." Among the data registrants must provide, according to a list, is "any other information required by the rules and regulations adopted by the Police Commissioner," language that Nance said appeared to give police "limitless discretion." The city said it was considering whether to appeal.
Though Nance's opinion is not binding on other judges, they might follow his lead, said University of Maryland law professor Douglas Colbert. "It will have an effect over anyone appearing before Judge Nance, and it could have an influential effect on his colleagues," said Colbert. "It's a ruling the state would likely not want to remain unchallenged."
Sheryl Goldstein, director of the mayor's Office on Criminal Justice, said city officials are pleased that the opinion reaffirmed that the program did not conflict with state laws, a complaint that had been raised when the program was being created. "This is one judge's opinion, and one of the first on the issue," she said. "We're considering all of our legal options, and in the meantime, we're going to keep the gun offender registry up and running."
The Office of the Public Defender brought the challenge in the case of Adrian Phillips, who was convicted of armed robbery and handgun offenses in 2008. He was charged in February with failing to register as a gun offender as a result of that sentence....
The law was modeled after a registry in New York City, and fueled by statistics showing that half of those charged with homicides in Baltimore had previous gun convictions. City officials say the program helps police keep close tabs on repeat offenders and other "bad guys with guns," as Police Commissioner Frederick H. Bealefeld III often calls them....
"The purpose of crafting the gun offender registry was to create a method of oversight and knowledge of gun offenders, with the idea of deterring future gun crime," Goldstein said. "Folks who are registered have a low rate of recidivism, period, and very low with respect to gun crime."
The law requires those convicted of shootings or other violations of gun laws to provide personal information to the police for a citywide database. Offenders must provide names, aliases, addresses and information about their convictions twice a year. Police also visit homes to verify addresses and connect offenders with social services.
Nance said the city could legally create a gun offender registry, but the Police Department had failed to give "reasonable guidance and fair notice to the public" on the specifics of the law. "The rules and regulations are not simply unclear, they are unknown and unreviewable outside of the walls of the Police Department," he wrote.
The ruling here apparently upholds the basic concept of a local gun offender registry, a concept which itself seems to have perhaps more empirical support as a contributor to public safety than sex offender registries. As a result, I hope that the folks in Baltimore (and perhaps in other communities with serious gun violence problems) will continue to refine this form of a registry in order to make its operation constitutionally sound.