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May 14, 2011

"The Bird man of prison" now regrets playing at sentencing

The Boston Globe has this story on the regrets of a Larry Bird fan who asked for extra time in prison to honor his favorite basketball player.  Here is how it starts and ends:

Just about everyone thinks Eric Torpy is a birdbrain.  In October 2005, Torpy asked an Oklahoma County judge to tack on three more years to his 30-year prison sentence for armed robbery and two counts of shooting with intent to kill.

"He said if he was going down, he was going to go down in Larry Bird’s jersey," Oklahoma District Judge Ray Elliott told the Associated Press back then.  "He was just as happy as he could be."  But after sharing a 10-foot-by-15-foot cell at the Davis Correctional Facility for the last six years, Torpy regrets asking for the extra time.

"Now that I have to do that time, yes I do," says Torpy.  "I kind of wished that I had 30 instead of 33. Recently I’ve wisened up.  "That three is a big deal, you know?  Three years matters." Torpy will turn 33 this year and is not eligible for parole until 2033....

Torpy said the district attorney and judge should never have lengthened his plea bargain agreement. "In my mind, they became unprofessional," he says.  "Why feed into my game? I’m a criminal."

But at least he’s a famous criminal, he says. In his cell is a scrapbook that contains a photo of Bird and news clippings about himself, including one from Playboy magazine (prison authorities didn’t let him keep the photos).  He says he was on ESPN, and that Jay Leno made fun of him. "I know that I went down in glory and fame, but truthfully, I didn’t know that all of that was going to happen," Torpy says.  "It wasn’t intended. It just all came about."

May 14, 2011 in Celebrity sentencings, Who Sentences? | Permalink | Comments (1) | TrackBack

May 13, 2011

"Exclusive: Pornography found in bin Laden hideout"

The title of this post is the headline of this breaking news via Reuters.  Here are the prurient details:

A stash of pornography was found in the hideout of Osama bin Laden by the U.S. commandos who killed him, current and former U.S. officials said on Friday.

The pornography recovered in bin Laden's compound in Abbottabad, Pakistan, consists of modern, electronically recorded video and is fairly extensive, according to the officials, who discussed the discovery with Reuters on condition of anonymity.

The officials said they were not yet sure precisely where in the compound the pornography was discovered or who had been viewing it. Specifically, the officials said they did not know if bin Laden himself had acquired or viewed the materials.

Reports from Abbottabad have said that bin Laden's compound was cut off from the Internet or other hard-wired communications networks. It is unclear how compound residents would have acquired the pornography....

Three other U.S. officials familiar with evidence gathered during investigations of other Islamic militants said the discovery of pornography is not uncommon in such cases.

Of course, my first reaction and question in response to this story is whether the discovered porn was all just legal stuff or contraband kiddie porn.  (If is was the illegal kiddie stuff, Bin Laden might have scored a record-high on the federal sentencing guidelines had he been captured and tried in a civilian court.  After all, mass murder scores high on the federal sentencing guidelines, but mass murder plus possession of kiddie porn could really set a record.)

Needless to say, on a Friday afternoon, readers are encouraged to fill the comments with (tasteful?) Bin Laden porn jokes.  To get you all started, consider this closing line from a media post titled "Debbie Does Abbottabad: Bin Laden Had A Porn Stash":

OBL’s porn locker does prove one thing, however: Hollywood and its influence may have a mixed perception globally, but the San Fernando Valley is loved the world around.

May 13, 2011 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (13) | TrackBack

Is the time right for candidate Ron Paul to lead withdrawal from the "war on drugs"?

As detailed in this ABC News piece, Representative Ron Paul officially announced his bid for the Presidency saying that "the time is right" for his candidacy for the Republican nomination to take on President Obama in the 2012 election.  This is necessarily important news for anyone like myself concerned about the so-called "war on drugs" because Paul has been a consistent and vocal critic of the drug war and in a recent debate even defended the use of heroin as "an exercise of liberty."

In response to Paul's announcement, the New York Times is rightly asking "Does the Tea Party Make Ron Paul Mainstream?".  And, as detailed in these links below, other serious media folks are already talking about Paul's criticism of the drug war:

Combined with the official entry into the 2012 race of the now-smart-on-crime New Gingrich, I am wondering and hoping that years from now we might look back on this week in May as the official tipping point when talk about retreating from the federal war on drugs became serious. 

Though I am not too optimistic that Paul or Gingrich will get lots of good publicity or traction on these matters, I am hopeful that their advocacy will help allow (and perhaps even force) the Obama Administration to be somewhat more progressive on a number of drug-war crime and punishment issues.  Especially if folks on the left and in the media start playing up the liberty-enhancing, budget-saving aspects of what Paul and Gingrich are saying on these issues, it could (and should) become much easier for both policy and political folks in the Obama Administration to be a little less cautious on issues ranging from medical marijuana to crack sentence reduction to clemency decision.

Some recent and older related posts on modern politics of the drug war and related sentencing issues:

May 13, 2011 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"Two Truths and a Lie: Stories at the Juncture of Teen Sex and the Law"

The title of this post is the title of this interesting-looking paper on SSRN by Michelle Oberman.  Here is the abstract:

Contemporary laws governing adolescent sexuality are internally incoherent and chaotically enforced, and contemporary legal scholarship on the subject shies away from the core problem of addressing and remedying adolescents’ vulnerability in sexual encounters.  In order to posit a meaningful relationship between the criminal law and adolescent sexual encounters, one must examine what we know about the nature of adolescent sexuality both from the academic literature on the subject and also from the perspective of the adults who control the criminal justice system’s response to teens’ sexual interactions.

This essay illuminates the intersection between coercive adolescent sexual encounters and the criminal justice system via an in-depth study of a 2003 rape prosecution involving two seventeen year-olds.  Using the case as a map, I explore the broader implications of the prosecution by interviewing a variety of experts and by analyzing the contemporary literature on sexual norms among youth.  Against this backdrop, I relate a series of interviews conducted with the major players involved in the prosecution: the prosecutors, the defense lawyer, the trial court judge and both appellate lawyers.  Examining this single case from a variety of perspectives permits a deeper understanding of how the law endeavors to regulate adolescent sexual encounters and of why it fails.

May 13, 2011 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Fourth Circuit crisply rejects application of Confrontation Clause at sentencing

Late yesterday the Fourth Circuit issued an interesting and thoughtful opinion in US v. Powell, No. 09-4012 (4th Cir. May 12, 2011) (available here), concerning the application of the Confrontation Clause at sentencing. Here is the start of the panel opinion and a key paragraph from the ruling:

Solomon Powell was convicted of mail fraud, wire fraud, and attempted destruction of evidence because of his business of selling merchandise over the Internet and then pocketing the money without sending along the products.  At sentencing, the district court relied on hearsay in concluding that Powell’s scheme harmed more than ten people and caused just under $200,000 in damage, subjecting him to an increased advisory Guidelines sentence.  He contends that because the Confrontation Clause applies with full force to sentencing proceedings, his sentence must be vacated.

We disagree. In accordance with our sister circuits, we conclude that the Confrontation Clause does not apply at sentencing proceedings like Powell’s.  This holding respects the traditional distinction between trial and sentencing, the sentencing court’s need to consider a wide variety of evidence in choosing an appropriate sentence, and the sentencing judge’s ability to properly evaluate that evidence.  The judgment of the district court is therefore affirmed....

If the Supreme Court had wished to extend confrontation rights to sentencing, it would hardly have done so by carefully describing those rights as protecting accused defendants during the determination of their guilt or innocence.  Moreover, even if we thought that Crawford somehow cast doubt on Williams’s rejection of confrontation-based challenges at sentencing, it is the Court’s job, not ours, to overrule its precedents, see Agostini v. Felton, 521 U.S. 203, 237–38 (1997), especially where all indicators suggest it still embraces the precedent’s basic holding, see, e.g., Pepper, 131 S. Ct. at 1239–40 (quoting extensively from Williams in describing a sentencing court’s broad evidentiary discretion).

Ever since Blakely and Crawford were first handed down in 2004, I have been hoping the Supreme Court might consider anew whether the Confrontation Clause ought to apply in modern fact-driven sentencing schemes.  But the Booker remedial opinion quickly took some of the steam out of this interesting issue, and I now doubt there are even a few SCOTUS votes to take up this issue, let alone the five votes that would be needed to chart a new path on the Confrontation Clause's application at sentencing.

May 13, 2011 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

If "most egregious and horrific" kiddie porn offender gets 15 years, what should mere downloaders get?

The question in the title of this post is inspired by this local article concerning a federal sentencing in Pittsburgh yesterday, which is headlined "Tough sentence ends 'Stephen's Group' child pornography case." Here are the basics:

The eighth and final person found guilty of participating in an international child pornography ring wept and apologized in federal court in Pittsburgh yesterday.  "It was outrageous, my conduct, and I deeply regret having done it," said Dave Dean, 43, of Texas and Arizona.  "It's clear I have a serious problem."

Dean's regret didn't keep him from receiving one of the tougher punishments handed out to the eight members of "Stephen's Group": 15 years in prison and a lifetime of [supervised release].  U.S. District Judge Arthur Schwab said Dean's case was the "most egregious and horrific" of the child pornography cases heard in his court. "The court is not willing to risk the chance that the defendant will re-offend," he said in handing out the sentence.

Dean and the others were part of a cabal led by Stephen Sims, 57, of San Leandro, Calif. Sims was the self-professed "den mother" who vetted people wanting to join the Internet group and had them send him images and videos of child pornography to prove they weren't police officers.  The group used social networking sites to exchange images and videos.

John Morton, director of U.S. Immigration and Customs Enforcement, which is involved because many images came from overseas, said after Dean's sentencing that the group traded images of children as young as infants being raped and tortured.  "There is little in this world that is more depraved than this," he said.

I am not prepared to assert without more information about this case that the "depraved" defendant involved in the "most egregious and horrific" kiddie porn offense here was lucky to only get a 15-year prison term.  But I know that there are lots of far less aggravated child porn downloading cases in which the federal sentencing guidelines call for prison terms much longer than 15 years, and thus this case provides yet another example of the challenges of developing and imposing consistent and proportional sentencing terms in these types of cases. 

May 13, 2011 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

May 12, 2011

Uncertainty prompts Ohio Parole Board to make unanimous recommendation to commute death sentence

As reported in thie new AP story, the "Ohio Parole Board on Thursday recommended mercy for a condemned killer of two scheduled to die in June, a relatively rare step by a board that generally sides with the state in its rulings."  Here are the details:

The final decision on whether to spare Shawn Hawkins now rests with Gov. John Kasich, who has allowed three executions to proceed since becoming governor but has yet to decide on a case where his parole board recommended in favor of the inmate.

The board by a 7-0 vote said it had no doubt Shawn Hawkins was involved in the 1989 slaying of two men in Cincinnati and likely shot the men but said it was troubled by many aspects of his conviction. “The Board is not confident in the death sentence in this case, but is also not convinced that Shawn Hawkins is innocent,” Thursday’s ruling said.

Hawkins, 43, was sentenced to die for the slayings of 18-year-old Terrance Richard and 19-year-old Diamond Marteen.  If granted clemency, his new sentence would be life without the possibility of parole.

Hawkins’ attorney applauded the board’s recommendation and said Hawkins and his family were confident Kasich would spare the inmate. “The death penalty is a fate that Shawn does not deserve,” said attorney Anthony Covatta of Cincinnati....

The board said it was bothered by several aspects of the case, including the possible involvement of other individuals who hadn’t been fully investigated. The board also cited conflicting statements by the sole eyewitness to the slayings and pointed out even police didn’t believe the crime occurred as the witness described.

The board also said it was troubled that Hawkins’ original attorney never presented evidence to the jury to argue against a death sentence but instead “chastised and alienated” the jury.  The Hamilton County Prosecutor’s Office had no immediate comment.

Barb Griffith, the mother of one of victim Terrance Richards, told the parole board last week she believes Hawkins killed her son and that he doesn’t deserve clemency. Griffith “doesn’t get to talk with her son, and her son has a child that he never knew and who did not get to know his father,” Thursday’s report said, summarizing Griffith’s comments.

Ohio has put to death 44 men since it resumed executions in 1999. The parole board has recommended clemency in only a handful of cases, the most recent of which was for Richard Nields in June 2010. Nields strangled his girlfriend during an argument but court decisions had questioned the appropriateness of the death sentence. Then Gov. Ted Strickland spared Nields.

The full 16-page clemency report in this case is available at this link.

It will be interesting to watch if either the local prosecutor or any of the victims' family members make a pitch to Governor Kasich to reject the parole board's recommendation for clemency.  If they do, this case could become high-profile in a hurry in a state that really only trails Texas in its actual use of the death penalty over the last decade.

May 12, 2011 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Houston Press runs story on "The 10 Hottest Women on the Texas Sex Offenders List"

I know next to nothing about the Houston Press, except that the publication got my attention today by running this feature on "The 10 Hottest Women on the Texas Sex Offenders List."  Here is the current run-up to the Houston Press's on-line posting of 10 mugshots:

You probably would not be too surprised to learn that the vast majority of people in the Texas Department of Public Safety's sex offender list are male.  And most are not good-looking.

But there are females on there, too.  Most of them are not good-looking, true, but who takes a good mugshot besides Tom DeLay?

We combed through 15 of the biggest counties in Texas and came up with the ten hottest women in the database.  Warning: In some cases, we picked out the best of a series of mugshots. Alternative choices were starkly different. So click on each link before you send any marriage proposals.

(Note: A lot of people riled up; in case you don't read the comments we posted this in response:

I can understand how some people might react to this.  On the other hand, it's a way of getting readers to look at the info, maybe get them to realize there are people out there like this and they all don't look like the obvious stereotypical pervert.

It's understood not everyone will agree.)

Some of the comments to this piece are as distasteful as the piece itself, while other rightly call out the Press for its (lack of) editorial judgment here.  This comment from "Houston Resident" especially stood out: "This piece of garbage is vile and disrespectful on a number of levels.  For shame."

UPDATE This follow-up piece from CBS News is headlined "Author of 'Hottest Sex Offenders' list apologizes."

May 12, 2011 in Sex Offender Sentencing | Permalink | Comments (20) | TrackBack

Federal appointment news and notes from inside the Beltway

The BLT has these two new entries providing updates on two important open federal positions that should be of interesting to sentencing fans:

The Prison Director story has the most sentencing bite, as the new head of BOP could potentially really shake up the back end of the federal criminal justice system.  Here is more from that story:

Representatives from the American Bar Association, National Association of Criminal Defense Lawyers and Human Rights Watch wrote Holder this month about the department’s search to replace Harley Lappin, who retired effective May 7.

NACDL president Jim Lavine said Holder should not focus exclusively on promoting from within.  Thomas Kane, an assistant BOP director since 1991, is now serving as acting director, overseeing more than 100 federal prisons.  “Since 1964, BOP’s director has been promoted from within its career ranks, with no evident attempt to recruit outside candidates,” Lavine said in a May 5 letter (PDF).  “We believe that developments in the past two decades, notably changes in BOP’s size and correctional mandate, argue for a broader search.”

Lavine of Zimmermann, Lavine, Zimmermann, & Sampson, in Houston, said the increase in BOP’s size “has not been accompanied by corresponding changes in management philosophy and institutional culture.”

“If agency size alone were the measure of importance, the search for a new BOP director would be as rigorous as the search for a new FBI director,” Lavine said.  “Quite apart from their comparable size, however, these two organizations are equally responsible in their respective spheres for keeping the American public safe and secure.”...

Bruce Green, chair of the ABA’s criminal justice section, urged Holder in a May 6 letter (PDF) to “cast a wide net in choosing a new director, and to make clear that professional independence will be the central and prized qualification.”

May 12, 2011 in Prisons and prisoners, Who Sentences? | Permalink | Comments (0) | TrackBack

The "district courts are not haberdasheries or money lenders" and its judges "are not like the supercomputer Watson"

The pearls of wisdom in the title of this post and lots of others can be found in a Sixth Circuit ruling yesterday in US v. Williams, No. 09-5256 (6th Cir. May 11, 2011) (available here).  And beyond these two amusing comments from the opinions in Williams, the case also covers some important legal ground.  The opinion for the court, for example, has the Sixth Circuit expressly join three other circuits in holding that "a district court may not conduct a sentencing hearing by video conference."  Here is part of the justification for this ruling:

The text of Rule 43 does not allow video conferencing.  The structure of the Rule does not support it.  As our sister circuits have recognized, and anyone who has used video conferencing software is aware, “virtual reality is rarely a substitute for actual presence.” Lawrence, 248 F.3d at 303.  While an individual may determine that the benefits of not having to travel outweigh the costs of having a meeting by video conference, we do not, and cannot, perform such a balancing with a criminal defendant’s rights.  Until such time as the drafters of the Rule instruct us otherwise, district courts may not conduct sentencing hearings by video conference.

In addition, Judge Thapur adds a thoughtful and extensive concurring opinion in order "to express [his] concern with a rule adopted in [the] circuits that allows parties to unilaterally waive plain error review."  Consequently, if you are interested in sentencing or appellate procedure (or just want to see the context for the quotes in the title of this post), be sure to give Williams a read. 

May 12, 2011 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

What insider trading sentence for Raj Rajaratnam would avoid "unwarranted" disparity?

I had not been following closely the trial of Raj Rajaratnam, but the conviction of the founder of the Galleon Group on all counts of insider trading (basics reported here) now turns the case into a interesting federal sentencing story.  And this new Reuters piece, headlined "Factbox: Prison sentences in insider trading cases," prompts the question in the title of this post.  Here are the facts reported by Reuters:

The Galleon Group founder could face up to 25 years in prison when he is sentenced in July, although prosecutors said on Wednesday that [Raj Rajaratnam] could get 15-1/2 to 19-1/2 years in prison under federal sentencing guidelines.  Following is a list of punishments meted out to defendants in other high-profile insider trading cases:

IVAN BOESKY -- Boesky, the famed Wall Street stock speculator of the 1980s, was sentenced to three years in prison in 1987 after pleading guilty to a criminal charge related to insider trading.  Boesky, who faced a maximum penalty of five years, cooperated with prosecutors in their probe of trading firms that resulted in charges against more than a dozen people.

MARK KURLAND, ROBERT MOFFAT AND ALI HARIRI -- All three pleaded guilty in the sweeping Galleon probe. Kurland, a former senior managing director at New Castle Funds LLC, was sentenced in May 2010 to two years and three months in prison. Kurland admitted to trading on information he got from Danielle Chiesi, also a former New Castle employee who became a central figure in the Galleon investigation.  Chiesi has pleaded guilty and is awaiting sentencing.  Moffat, a former International Business Machines Corp executive, was sentenced to six months in prison for tipping Chiesi about an impending IBM deal with Advanced Micro Devices Inc.  Hariri, a former executive at chipmaker Atheros Communications Inc. received an 18-month sentence in November for tipping a former Galleon employee.

SAM WAKSAL -- The founder of biotechnology company ImClone Systems Inc. was sentenced to seven years in prison after pleading guilty to insider trading in 2002.  The scandal also ensnared Waksal's father as well as lifestyle entrepreneur Martha Stewart, who was convicted of lying to federal agents about her sale of ImClone stock.  She served five months in prison.

JOSEPH NACCHIO -- Nacchio, the former CEO of Qwest Communications, was sentenced to six years in prison, later reduced by two months, after he was convicted in a 2007 trial of 19 counts of insider trading in selling $52 million in Qwest stock.  A judge also ordered Nacchio to forfeit $44.6 million and pay a $19 million fine.

JOSEPH CONTORINIS -- Contorinis, a former hedge fund manager, received a 6-year sentence in December for his role in providing tips on impending mergers, such as the 2006 buyout of the supermarket chain Albertsons Inc.

HAFIZ NASEEM -- A judge sentenced Naseem, a former Credit Suisse Group investment banker, to 10 years in prison after he was found guilty in February 2008 of participating in a $7.5 million scheme to leak inside information about pending corporate deals.

RANDI AND CHRISTOPHER COLLOTTA -- Randi Collotta, a former Morgan Stanley lawyer, received a sentence of 60 days in prison on nights and weekends for passing along tips to her husband about impending merger deals.  Her husband, Christopher, got a sentence of 6 months' home confinement.

So, based on this (incomplete) list, it appears that nobody has received more than a decade for insider trading and that sentences of six year or much less are more common for this crime.  Does this entail that the sentencing judges in Raj Rajaratnam's case ought to feel a special statutory obligation to impose a below-guideline sentence based on Congress's instruction in 18 USC 3553(a)(6) to consider at sentencing "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct"?

May 12, 2011 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (1) | TrackBack

California DA files suit hoping to undo controversial clemency grant

As detailed in this local piece, headlined "D.A. seeks to overturn reduced sentence of Esteban Nuñez in fatal stabbing," a county prosecutor is trying to break new lega ground by suing over a controversial clemency grant. Here are the details:

The San Diego County district attorney has filed a civil suit aimed at overturning former Gov. Arnold Schwarzenegger’s last-minute reduction of the prison sentence of the son of former Assembly Speaker Fabian Nuñez in the slaying of a college student.

On his last day in office, the governor reduced the sentence of Esteban Nuñez from 16 years to seven years.  The decision was made without consulting with prosecutors in the case -- angering Dist. Atty. Bonnie Dumanis and the family of the victim, Luis Santos.

In the civil suit, announced Wednesday, Dumanis argues that Schwarzenegger had a legal obligation to notify prosecutors and the families of the victims.  Santos was killed in a late-night street brawl outside San Diego State.  Nuñez pleaded guilty in 2010 to voluntary manslaughter and assault with a deadly weapon.

The suit is considered the first of its kind, Dumanis said....  The lawsuit names the governor, Nuñez, the director of the state Department of Corrections and Rehabilitation and the warden of Mule Creek State Prison, where Nuñez is serving his time.

Dumanis said Marsy’s Law, meant to protect the rights of crime victims, requires a governor to notify prosecutors and family members.  The civil suit could face a difficult legal precedent: that the right of governors to grant pardons and sentence reductions has been considered unlimited and not subject to review.

The governor, Dumanis said, is given that power to help correct miscarriages of justice. “Instead, this last-minute commutation made without all the facts or input from the parties only fueled the public mistrust of government and greatly diminished justice,” Dumanis said.

Though this novel lawsuit is seeking to undo a clemency decision that helped a criminal defendant, I suspect some defendants and their attorneys might like to see a ruling here that courts have authority to review and second-guess executive clemency decisions.  After all, the vast majority of such executive decisions involve the denial of clemency; I am sure defendants and their attorneys who believe clemency was justified in certain cases would welcome any means or opportunity to challenge clemency denials in court.

May 12, 2011 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

"A Paradox in Overcriminalization"

The title of this post is the title of this new piece by Ekow Yankah in the New Criminal Law Review. Here is the abstract:

Given that one of the central roles of political philosophy and criminal theory is illuminating the borders of justified state punishment, the modern crisis of overcriminalization is a painful defeat.  Generations of legal theory, grounded in liberalism, has done little to stem the tide of criminal law and the explosion of criminal punishment.

One notable island of decriminalization has been the retreat of criminal punishment surrounding marijuana consumption.  With the combination of medical marijuana regimes, reduction of punishment, and halting steps toward full decriminalization, marijuana stands in stark contrast to the highly visible war on drugs that has driven much contemporary overcriminalization.

This piece argues that opponents of overcriminalization have much to learn from the functional decriminalization of marijuana.  Marijuana decriminalization has not been successful because of a swing in public attitudes about marijuana use.  Rather, decriminalization is possible because advocates can marshal agreement across philosophical starting points, bringing both liberals and nonliberals into consensus.  This groundswell demonstrates that legal theorists concerned about containing state power must look beyond liberal theories.  Most importantly, this example reveals that legal theorists interested in turning back the tide of overcriminalization must do more than wait for areas of Rawlsian overlapping consensus; they must reach out to generate consensus with Rawlsian conjecture by viewing law not only from the liberal vantage point but from the nonliberal's perspective as well.

May 12, 2011 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

May 11, 2011

"Seattle courts to trade jail for ankle bracelets"

The title of this post is the headline of this local report on a notable technocorrections development in the pacific northwest.  Here is how the piece starts:

Alcohol-monitoring ankle bracelets, the unflattering fashion accessory worn by troubled actress Lindsay Lohan and a growing number of DUI offenders in Washington state, are coming to Seattle.

Seattle Municipal Court plans to begin using the bracelets to keep tabs on drunken-driving defendants.  The bracelets, which test alcohol exuded from a person's skin, are viewed as a cost-effective way to monitor the behavior of those convicted of drunken driving or awaiting trial on DUI charges.

Proponents, including a growing number of state judges, say they're cheaper than making offenders sit in jail.  "We were looking for ways to not put people in jail because of the continuing high cost of doing so," said Judge Brett Buckley of Thurston County District Court, which uses the bracelets.  "Our jails are overcrowded.  I'm sure Seattle's and King County's are the same."

The bracelets often are worn by defendants out of jail awaiting trial, and for those convicted of DUI and placed on probation.  Seattle Municipal Court Judges Steve Rosen and Ed McKenna say the court plans to use the bracelets in misdemeanor drunken-driving cases.

May 11, 2011 in Criminal Sentences Alternatives, Technocorrections | Permalink | Comments (2) | TrackBack

Efforts to abolish death penalty in Connecticut appear to be dying

As detailed in this new local report from Connecticut, "two Democrats in the state Senate that had previously supported a bill to abolish the death penalty in Connecticut have reportedly changed their minds after meeting with Dr. William Petit, the sole survivor of a brutal home invasion and an outspoken supporter of capital punishment."  Here is more:

Senate President Donald Williams, a Democrat who backs the repeal effort, said the vote is close in the chamber right now but he does not have a formal vote count....  Sen. John Kissel, the ranking Republican on the legislature's judiciary committee and a supporter of the death penalty, said whether the bill will come up for debate in the Senate "is very much in doubt."...

One key lawmaker is Sen. Edith Prague, said she asked Senate leaders to defer a vote on the bill out of respect to Dr. Petit. One of two defendants in the killings of Petit's family is slated to go trial later this year.

Prague, a Democrat from Columbia and longtime supporter of the death penalty who became an opponent in 2009, said she continues to continues to believe the capital punishment should be repealed. But after meeting with Petit and his sister-in-law, she decided she could not support repeal this year.

"I spoke with Dr. Petit and his wife's sister and they told me if we repeal the death penalty at this point in time, it would be more difficult to get the death penalty for Komisarjevsky.  And I cannot cause this man and his family any more stress so at this point I will not support repeal out of respect for that family,'' Prague said in a brief phone interview this afternoon between votes.

"I don't care what anybody says: I want to give this man a little ounce of consideration here and that's my reason at this point in time to not support repeal. I have to live with myself...I could not for one second cause this family any more stress.''  Prague said she met with the family once. "That was enough for me...All I had to do was look at his face.''

May 11, 2011 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (27) | TrackBack

High-profile developments in two high-profile cases

Because the MSM likely will cover these two (very different) criminal cases pretty well for the time being, I will be content here just to link to two stories covering today's developments in two high-profile cases:

May 11, 2011 in Celebrity sentencings, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Another high-profile example of undue leniency for a repeat drunk driver

Regular readers surely recall posts of mine complaining about the too-frequent tendency of sentencing judges to respond to repeat drunk drivers with a slap on the wrist.  This local story from Maryland, headlined "Ravens' Kindle gets no jail time for drunk driving; Howard County prosecutor decries sentence as too lenient after second offense," provides another high-profile example of the problem:

Baltimore Ravens linebacker Sergio Kindle will serve no jail time for a second drunken driving offense that occurred last year in Savage, a Howard County District Court judge ruled Tuesday.

The 23-year-old Kindle pleaded guilty to having a .17 blood alcohol level — over twice the legal limit in Maryland — as he drove a gold Cadillac sedan northbound on Route 1 near Route 32 in the early morning hours of Dec. 26. There were three passengers the vehicle.

Judge Neil Edward Axel, Howard County’s drug and DUI court supervisor, ruled that the five days Kindle spent at an alcohol abuse in-patient treatment facility, Right Turn of Maryland, in Owings Mills, would replace the five-day mandatory jail sentence for a second time DUI offender....

Howard County State’s Attorney Dario Broccolino said he was disappointed by the sentence, which was the most lenient judgment possible under state sentencing guidelines. “People need to get the message that a second-time offender should have more serious sanctions imposed on him. I don’t care if he’s a football player,” Broccolino said. “The entire sentence was lenient. End of story.”

Axel placed Kindle on two years of unsupervised probation, during which he is prohibited from drinking and required to attend self-help meetings. If Kindle violates his probation, he faces up to a year in prison. “I am very remorseful for my actions because I am held to a higher standard,” Kindle said in court, adding that the experience and his five-day treatment “has taught me a lot.”

Despite Kindle’s remorse, Broccilino said that probation was a far cry from the 30-day prison term Howard County Assistant State’s Attorney Meghan Skaggs requested, based on “the seriousness of the crime,” she said in court. The fact that he is a second time offender gives “us insight to his state of mind” and lack of “respect” for Maryland law, Skaggs said in court. “Punishment is necessary, and in-patient treatment... is not a jail cell.”

Some related posts on sentencing drunk drivers:

May 11, 2011 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (1) | TrackBack

Mississippi joins growing number of states with success using new execution drug

As reported in this Reuters piece, "Mississippi corrections officials on Tuesday executed a man convicted in the 1998 slayings of four people, the first inmate in the state to be put to death using a new drug as part of the lethal injection." here are more of the details:

Benny Joe Stevens was pronounced dead at 6:22 p.m. local time at the Mississippi State Penitentiary in Parchman, said state Department of Corrections spokeswoman Tara Booth....

He was executed with the drug pentobarbital, a sedative often used to euthanize animals, because of a nationwide shortage of sodium thiopental. Several states have switched to pentobarbital due to the shortage, and Texas and South Carolina used the drug to carry out executions last week.

Stevens was sentenced to death in 1999 for the murders of his ex-wife, her husband and two children in Foxworth, Mississippi. He also received a 20-year prison sentence for the aggravated assault of his daughter, who was shot in the back and then watched Stevens shoot her mother....

There are 59 inmates on death row in Mississippi, according to state prison records. Stevens was the 15th person executed in the United States so far this year, according to the Death Penalty Information Center. In 2010, 46 people were executed in the United States, six fewer than the previous year.

May 11, 2011 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

May 10, 2011

"Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct"

9780814787038_Full The title of this post is the title of this new book edited By Anthony Barkow and Rachel Barkow, which has just been released by NYU Press. Here is a summary of the book's coverage from the NYU Press website:

Who should police corporate misconduct and how should it be policed?  In recent years, the Department of Justice has resolved investigations of dozens of Fortune 500 companies via deferred prosecution agreements and non-prosecution agreements, where, instead of facing criminal charges, these companies become regulated by outside agencies. Increasingly, the threat of prosecution and such prosecution agreements is being used to regulate corporate behavior.  This practice has been sharply criticized on numerous fronts: agreements are too lenient, there is too little oversight of these agreements, and, perhaps most important, the criminal prosecutors doing the regulating aren’t subject to the same checks and balances that civil regulatory agencies are.

Prosecutors in the Boardroom explores the questions raised by this practice by compiling the insights of the leading lights in the field, including criminal law professors who specialize in the field of corporate criminal liability and criminal law, a top economist at the SEC who studies corporate wrongdoing, and a leading expert on the use of monitors in criminal law.  The essays in this volume move beyond criticisms of the practice to closely examine exactly how regulation by prosecutors works.  Broadly, the contributors consider who should police corporate misconduct and how it should be policed, and in conclusion offer a policy blueprint of best practices for federal and state prosecution.

Contributors: Cindy R. Alexander, Jennifer Arlen, Anthony S. Barkow, Rachel E. Barkow, Sara Sun Beale, Samuel W. Buell, Mark A. Cohen, Mariano-Florentino Cuellar, Richard A. Epstein, Brandon L. Garrett, Lisa Kern Griffin, and Vikramaditya Khanna.

May 10, 2011 in Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Notable Sixth Circuit opinion on resentencing requirements

The Sixth Circuit has a notable little opinion today in US v. Garcia-Robles, No. 09-1980 (6th Cir. May 10, 2011) (available here), covering lots of ground concerning resentencing procedures. Here is how the opinion starts:

This is defendant Julio C. Garcia-Robles’s second sentencing appeal.  In our prior opinion, we vacated Garcia-Robles’s sentence as procedurally unreasonable and remanded for resentencing in a general remand order.   However, on remand, over defendant’s objections, the district court resentenced defendant to the same sentence without holding a resentencing hearing.  In this appeal, Garcia-Robles claims that his resentencing was procedurally unreasonable because he was denied his right to be present and allocute.  We agree and hold that upon a general remand for resentencing, a defendant has a right to a plenary resentencing hearing at which he may be present and allocute.  We further hold that when a plenary resentencing hearing is held, the district court is required to state its reasons for the sentence “in open court.”

May 10, 2011 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (5) | TrackBack