January 15, 2011
"Cost of sex offender program shocks lawmakers"
The title of this post is the headline of this interesting local article from Virginia. Here are excerpts:
Lawmakers expressed shock Friday over the exponentially rising cost of a program to keep some sex offenders locked up after they complete their criminal sentences. The annual operating cost of Virginia's Sexually Violent Predator Program is projected to hit $32 million next year - more than a tenfold increase in eight years.
The General Assembly created the program in 1998 to keep sex offenders deemed likely to re-offend off the streets after they finish their criminal sentences. The process is known as civil commitment.
The 300-bed Virginia Center for Behavioral Rehabilitation in Nottoway County, built just two years ago for $62 million, will be filled by this fall, the House Appropriations Committee was told Friday.
Gov. Bob McDonnell has proposed spending an additional $68.5 million this year to accommodate the growing number of offenders coming into the program, including $43.5 million in borrowed money to convert a closed prison in Brunswick County into a second 300-bed treatment center.
The numbers generated bipartisan alarm on the budget-writing panel. "This has just exploded," said Del. Chris Jones, R-Suffolk. "I worry about where we're heading," said Del. James Scott, D-Fairfax County....
The panel grilled Olivia Garland, deputy commissioner of the state Department of Behavioral Health and Developmental Services, about how and why the program has grown so dramatically.
Initially the pool of offenders was limited to four crimes: rape, forcible sodomy, object sexual penetration and aggravated sexual battery. In 2006, however, the Assembly expanded the list of crimes to 28. In addition, the state switched to a different screening test, which lowered the threshold for commitment.
As a result, Garland said, the number of offenders coming into the program, initially about one a month, now averages six to eight a month. There are 252 offenders in the program. So far, 11 have been released.
The average annual operating cost is $91,000 per resident. That's low compared to the cost in some of the other 19 states with similar programs, Garland said. In New York, for instance, the per-resident cost is $175,000. A big factor in the cost is the high staffing ratio required for such a program, she said: roughly two staffers for every resident.
Garland cited several reasons why Virginia's program is growing faster than those in many other states. Unlike most states, Virginia commits mentally ill offenders and those who have been judged "unrestorably incompetent to stand trial."
Also, most states require that an offender show a history or pattern of sexually dangerous behavior before becoming eligible for commitment. In Virginia, it takes only one offense. The department is exploring ways to curb the program's growth, Garland said....
Del. Rosalyn Dance, D-Petersburg, said the state needs to examine why so few offenders are being released. "We have an elaborate get-you-in system," she said. "I think we also need an elaborate get-you-out system."
California clemency controversy prompting talk of reform to clemency power
As detailed in this local article, which is headlined "Nunez sentencing controversy spurs legislation; Proposals would bar governors from 11th-hour sentence reductions," some legislators in California are talking about clemency reforms in response to what has been widely perceived as a clemency injustice by former Governor Arnold Schwarzenegger on his way out of office earlier this month. Here are the basics:
Assemblyman Marty Block says he will introduce legislation in the coming days that would give families of victims and district attorneys a 30-day warning that a prisoner may be set free early by the governor. The San Diego Democrat’s proposal is in response to former Gov. Arnold Schwarzenegger’s 11th-hour decision to reduce the prison sentence of Esteban Nuñez to seven years from 16 years in the 2008 stabbing death of Luis Santos at San Diego State University.
Schwarzenegger took the action the night before he left office. Nuñez had pleaded guilty to voluntary manslaughter and two counts of assault with a deadly weapon.
Block is not alone in offering legislation. Assemblyman Allan Mansoor, R-Costa Mesa, has also said he plans to carry a bill with similar requirements.
The surprise commutation of Nuñez’ sentence shocked the victim’s family and San Diego County District Attorney Bonnie Dumanis and earned Schwarzenegger nationwide scorn. It also drew sharp criticism for the appearance of political favoritism. Nuñez is the son for former Assembly Speaker Fabian Nuñez, a Los Angeles Democrat who worked with Schwarzenegger on budget issues and landmark legislation to combat global warming by reducing greenhouse gas emissions.
“I thought it was outrageous that he did so without first contacting the district attorney, the judge or the family,” Block said in an interview Friday afternoon. Asked if it was a politically motivated decision, Block said: “I don’t know but it certainly gives the appearance. We need to have the public confident in our system of justice. Actions like this erode confidence in our justice system.”
Block said he is still finalizing details, but expects the measure to require a prisoner or someone acting on behalf of a prisoner to notify the district attorney who handled the case and the victim’s family 30 days before submitting a plea for a reduced sentence or pardon. A governor would be precluded from acting on the request during that 30-day period....
Block said he is still weighing whether to require commutation requests to be made generally available to the public. “That’s something I will be discussing with the district attorney to get their opinions,” he said. “There may be some reason they don’t want it public.” However, he said he would not include a provision that would bar law enforcement or families form voluntarily disclosing the information....
Block said he was approached by Dumanis, who has no made secret that she is furious with the governor for his action. Mansoor, a freshman lawmaker, would require a governor to notify interested parties such as the prosecutor and victim’s family 30 days before acting. “We can’t go back in time and change what has already taken place, but we can ensure that this type of action never takes place again,” he told the Associated Press....
Earlier this week, Schwarzenegger sent a letter to the family of the slain Santos, a Mesa College student. He apologized for not notifying them, but defended reducing the sentence. “I understand why you may never comprehend or agree with my decision and I am profoundly sorry that my decision has added to your burden,” Schwarzenegger wrote.
Because I always favor greater transparency in all sentencing decision-making, I generally favor mandatory notice/disclosure provisions, even in the arena of clemency requests. Consequently, though I often worry about sentencing reforms inspired by one troublesome case, I am drawn to these kinds of reforms being discussed now in California.
That said, I am not sure I like the idea of a rigid waiting period that limits in all cases when an executive official can grant clemency unless there are some provisions allowing exceptions in extreme cases. What if a Governor is convinced of a death row inmate's innocence based on evidence that emerges only a week before a scheduled execution, but courts are unable or unwilling to grant relief for procedural reasons? Especially given the important role of executive clemency as a last-minute fail-safe for concerns of justice and mercy, I believe flexible standards are always to be preferred over rigid restrictions in this context.
January 14, 2011
Out-going PA Gov Rendell urges lawmakers to take look at state's death penalty
On the same day he signed six more death warrants, out-going Pennsylvania Gov. Ed Rendell wrote to his state's legislators to urge them to "re-examine the efficacy of the death penalty. This AP article provides some of the context for, and contents of, Rendell's capital comments:
Four days before his eight-year tenure ends, Rendell signed six more death warrants, bringing his total to 119. None of those convicted murderers are close to potential execution, which the Democratic governor attributed to "a system of endless appeals."
Pennsylvania has put to death three people since the last contested execution in 1962, and all three had willingly given up on the appeals process. There are currently 213 men and four women on the state's death row....
Rendell, a former prosecutor, remains a supporter of capital punishment as a deterrent. But he said the existing system frustrates police, costs taxpayers and robs the victims' families and friends of peace of mind.
"A 15-, 20- or 25-year lapse between imposition of a death sentence and the actual execution is no deterrent," Rendell wrote in a letter to members of the General Assembly on Friday. "In the public's eye, the crime and the victim may be long forgotten."
He said lawmakers should look for ways to significantly shorten the amount of time for appeals while ensuring the facts and the law are thoroughly reviewed. If that proves impossible, he said, the Legislature should consider instituting a new form of punishment: life without any chance of parole, pardon or commutation, a change that may require amending Pennsylvania's constitution....
Andy Hoover with the Pennsylvania ACLU, who attended Rendell's death penalty news conference, called the current system "torturous and long" but said the governor's proposals would not be an improvement. "If we streamline the process, we increase the risk of innocent people being executed, and the governor didn't address that at all," Hoover said.
A spokesman for the state district attorneys' association said the group was developing proposals to cut the length of appeals, but declined to provide specifics.
The full text of the Gov. Rendell's two-page letter is available at this link.
Infamous 93-year-old crime boss gets eight-year federal sentencing
As detailed in this New York Daily News piece, "Colombo underboss John (Sonny) Franzese could be out prison for his 100th birthday -- with time off for good behavior." Here is why:
The 93-year-old gangster was sentenced Friday to eight years for shaking down the Hustler and Penthouse strip joints and a Long Island pizzeria.
Federal Judge Brian Cogan said he was troubled by handing the mobster what could amount to a life sentence, but assistant U.S. Attorney Cristina Posa said that's exactly what the murderous mobster deserves.
"He has never held an honest job for a day in his life," Posa told the judge. "He's essentially lived as a parasite off the hard work of others by shaking them down." The prosecutor said it was disturbing that Franzese is constantly referred to as a "legend" in films and newspaper articles.
"He is largely responsible for the glamorization of the Mafia over the past century. For him to die now as a criminal in jail is not an inappropriate response to the lifestyle he lived."...
Although he was never convicted of murder, Franzese told an informant he had participated in at least 60 gangland killings. The informant taped Franzese instructing him on how to get rid of corpses: dismember the victim in a kiddie pool, then cook the bones in a microwave oven.
Three years ago when Franzese found out his son, John Jr., was an FBI informant, he thought about whacking his own flesh and blood, FBI agent Vincent D'Agostino said yesterday. "He told \[the informant\] that there would come a time to call his son and \[Franzese\] gestured with his forefinger and thumb…indicating that they would kill him," D'Agostino said.
The son wasn't killed and went on to testify against Franzese last year, helping to convict him of racketeering and extortion charges.
Defense lawyer Richard Lind said his client's hearing aid wasn't working so it wasn't clear how much he took in. When it was his turn to speak, Franzese grumbled: "What am I gonna say? I didn't get a fair...I never got a ruling in my favor." Lind quickly covered the microphone mouthpiece with his hand and told the judge that Franzese had nothing to say....
Franzese, who looks 20 years younger than his age, is confined to a wheelchair and had several illnesses. He could have gotten up to 15 years in prison.
Lots of (very little?) new guideline amendments proposed by US Sentencing Commission
As detailed in this official public notice now up on the USSC's website, "the United States Sentencing Commission is considering promulgating certain amendments to the sentencing guidelines, policy statements, and commentary." Helpfully, this notice sets forth not only the proposed amendment, but "a synopsis of each proposed amendment, and several issues for comment." Here is a summary from the document of what's covered:
The proposed amendments and issues for comment in this notice are as follows:
(1) a proposed amendment on drug trafficking, including (A) a proposal to repromulgate as a 2 permanent amendment the emergency, temporary amendment in response to the Fair Sentencing Act of 2010, Pub. L. 111–220, regarding offenses involving crack cocaine and regarding certain aggravating and mitigating circumstances in drug trafficking cases, and (B) a proposed change to §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to implement the directive in section 4 of the Secure and Responsible Drug Disposal Act of 2010, Pub. L. 111–273, and related issues for comment on drug trafficking;
(2) a proposed amendment on firearms, including proposed changes to §2M5.2 (Exportation of Arms, Munitions, or Military Equipment or Services Without Required Validated Export License) regarding certain cases involving small arms and ammunition crossing the border and related issues for comment, including whether revisions to §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) and related guidelines may be appropriate to address concerns about firearms crossing the border and straw purchasers;
(3) a proposed amendment to Appendix A (Statutory Index) in response to the Dodd-Frank Wall Street Reform and Protection Act, Pub. L. 111–203, and issues for comment regarding the directives in section 1079A of that Act;
(4) a proposed amendment to §2B1.1 (Theft, Property Destruction, and Fraud) to implement the directive in section 10606 of the Patient Protection and Affordable Care Act, Pub. L. 111–148, and a related issue for comment;
(5) a proposed amendment on supervised release, including a proposed change to §5D1.1 (Imposition of a Term of Supervised Release) on cases in which the court is required by the guidelines to impose supervised release and a proposed change to §5D1.2 (Term of Supervised Release) on the minimum lengths required by that guideline for a term of supervised release, and related issues for comment;
(6) a proposed amendment to §2L1.2 (Unlawfully Entering or Remaining in the United States) that would provide a limitation on the use of convictions under §2L1.2(b)(1)(A) and (B) in certain circumstances;
(7) a proposed amendment to §2J1.1 (Contempt) that would address a circuit conflict on the applicability of a specific enhancement in a case involving the willful failure to pay court-ordered child support;
(8) a proposed amendment in response to miscellaneous issues arising from legislation recently enacted and other miscellaneous guideline application issues, including proposed changes to the policy statement at §6B1.2 (Standards for Acceptance of Plea Agreements) in light of United States v. Booker, 543 U.S. 220 (2005), and proposed changes to Appendix A (Statutory Index) to address certain criminal provisions in the Coast Guard Authorization Act of 2010, Pub. L. 111–281; and
(9) a proposed amendment in response to certain technical issues that have arisen in the guidelines.
Other than the proposed amendment to make permanent the new crack guidelines (#1) and to tweak the unlawful entry guideline (#6), none of these other proposes amendments appear on the surface to be very consequential or important. But maybe practitioners can and will report that there is indeed a lot here of note.
Some notable comings and goings from prison
Thanks to Google News, I saw these interesting headlines concerning some interesting folks headed to and leaving from prison:
- Palin E-Mail Hacker Imprisoned Against Judge's Recommendation
- Wife of Massachusetts Rep. Tierney Sentenced To Prison
- Former Louisiana Gov. Edwin Edwards freed from prison
Alabama completes third execution of 2011 after brief SCOTUS stay
As detailed in this AFP article, "Alabama executed a convicted murderer late Thursday after the US Supreme Court denied a stay of execution for the man accused of killing his wife as she held their young child in her arms." Here is more of the story:
Supreme Court Justice Clarence Thomas had issued a temporary stay in order to give the court more time to review the case's legal arguments shortly before Leroy White was scheduled to die at 6:00 pm (2300 GMT).
But the high court later denied the request for a stay and White, 51, was put to death by lethal injection at Holman Correctional Facility in Atmore. He had spent 22 years on death row. Alabama Governor Bob Riley and the Alabama Supreme Court had earlier denied White's bid for clemency.
White was 29 years old in October 1988, when he murdered his wife with two gunshots because she wanted a separation. He also shot and wounded his sister-in-law. His lawyers said he did not have adequate representation and should have had the opportunity to plead guilty to get life without parole, in order to avoid the death penalty.
"Mr White's execution marks another step back from the commitment to heightened scrutiny and fair review that states and courts promised when the death penalty was reintroduced 35 years ago," White's lawyer Bryan Stevenson said in a statement....
The family of the victim opposed the execution, according to Stevenson. White's daughter, Latonya White, was just 17 months old when her mother was gunned down while holding her in her arms. "For a long time I was very angry with my father for taking my mother away from me," she wrote to the court. "I now have a very close relationship with my father. I am deeply opposed to my father's execution. Executing my father will do nothing to bring my mother back."
Two executions have been carried out in the US since the start of 2011, after 45 last year and 52 in 2009. In Alabama alone, 203 prisoners are on death row.
January 13, 2011
"The People’s Right: Reimagining the Right to Counsel"
The title of this post is the title of this interesting looking new article by Martin Guggenheim and now available via SSRN. Here is part of the abstract:
This Article re-imagines the Sixth Amendment’s right to counsel, which has been treated exclusively as an individual right enforceable through the Due Process Clause, as a collective right of the People. Building on the writings of Anthony Amsterdam and Akhil Amar, this Article argues that there are vital structural protections inherent in the right to counsel that go well beyond an individual’s due process rights. In particular, the Founders of the Constitution, above all else, contemplated a robust system of checks and balances when executive power was exercised. Perhaps the paradigmatic example of the exercise of such power is the arrest and prosecution of an individual. In the world inhabited by the Founders, the primary means by which executive power was to be checked was through the jury system.
In the modern crush of criminal justice, however, juries play a statistically insignificant checking power function. In the overwhelming majority of cases prosecuted in state court, defendants are not provided with an attorney who has the capacity to undertake any kind of meaningful investigation into the facts and circumstances of their cases.
Courts need to rely on a vital ally when performing their oversight responsibilities. They depend (we depend) on a robust indigent defense system which routinely investigates the underlying facts and circumstances of individual cases as the only truly meaningful check on executive power....
Separation of powers, which has long been a shield preventing courts from overseeing indigent defense systems, is now a sword by which courts are authorized to decide for themselves whether indigent defense systems are adequate to allow courts to do their duty. If courts find they are not, they would be constitutionally empowered to fix the problem by insisting that more money is made available for indigent defense.
An indigent defender system is widely understood as necessary to protect and enforce the rights of its clients. But taken as a whole, the indigent system becomes something much bigger. If the individual defense attorney may be seen as a private attorney general enforcing the rights of his or her client, the collective defense system should be seen as the investigative arm of the judiciary providing meaningful oversight on executive power. Without a robust indigent defense system, one with the capacity to investigate cases on a regular basis, the executive branch ends up with a license to act which would have been unthinkable to the Framers of the Constitution who worked so carefully to ensure that executive power would be checked on a regular basis
Lawrence Taylor cuts a deal on NY state charges to avoid prison time after sex with 16-year-old
As detailed in this Bloomberg story, "[f]ormer New York Giants linebacker Lawrence Taylor will avoid jail time after pleading guilty to two misdemeanor charges for having sex with a prostitute." Here are more of the unsavory details:
Taylor, 51, was charged with having sex in May with a 16-year-old runaway from the Bronx who was brought by a pimp to a hotel in Suffern, New York, where the former player was staying. Police said Taylor paid the victim $300 after having sex with her.
Taylor pleaded guilty today to sexual misconduct and patronizing a prostitute, the Rockland County, New York, District Attorney’s office said in a statement. Taylor is expected to be sentenced to six years of probation on March 22 and register as a sex offender, the DA’s office said.
Taylor previously pleaded not guilty to third-degree rape, which involves sexual intercourse with a minor; patronizing a prostitute; sexual abuse; and endangering a child....
Rockland County District Attorney Thomas Zugibe said Taylor has cooperated with his office and the U.S. Attorney in a probe of sex trafficking in the New York area.
Zugibe said the 16-year-old girl told investigators she was verbally threatened, physically assaulted and brought to Taylor’s hotel room by Rasheed Davis, who was arrested by the New York City Police Department and is facing federal charges.
“We made a decision to aggressively prosecute this case, notwithstanding a defendant in the public eye,” Zugibe said. “Today’s agreed-upon plea reflects that.”...
Taylor has had a history of off-field problems and admitted in an autobiography to heavy cocaine use. He underwent rehabilitation for abuse of the drug in 1985 and three years later was suspended by the NFL for 30 days after a second positive test for the substance.
In 1995, Taylor spent time in drug-rehabilitation facilities. He was arrested in 1996 and 1998 for trying to buy crack cocaine from undercover police officers.
Taylor pleaded guilty to tax evasion in 2000 and received a $10,000 fine and five years probation. In November 2009, he was arrested in Hialeah, Florida, after crashing into another motor vehicle and leaving the scene.
As is often possible (and frequently happens) after this kind of deal, we could and perhaps should start a discussion about whether this celebrity defendant got a special form of celebrity justice. Given the significant sentencing breaks often given to those who actively cooperate with state and local prosecutors, the fact that LT was allowed to just plead to misdemeanor charges is perhaps not too surprising. But given his (extensive?) criminal history, I do think he may be getting a bit better treatment than would an unknown involved in the same kind of crime.
Seventh Circuit affirms 210-month prison sentence for child porn dowloader/purveyor
Ayone who follows closely the discussion and debate over federal child pornography sentencing terms will want to be sure to check out today's work by the Seventh Circuit in US v. Mantanes, No. 10-1590 (7th Cir. Jan. 13, 2011) (available here), which affirms a within-guideline 210-month sentence for a defendant found with a collection of "1,380 images and 141 videos of children engaged in sexually explicit conduct." There are various interesting aspects of Mantanes, including this discussion of the Second Circuit's work in the Dorvee case:
Mantanes also argues that his sentence was substantively unreasonable. He urges us to follow the reasoning of the Second Circuit in Dorvee. But Dorvee is easily distinguishable. In remanding for resentencing in Dorvee, the Second Circuit expressed concern that the sentencing judge assumed that the defendant was likely to assault a child (although he was convicted of a noncontact offense), and that this assumption motivated the sentencing judge to place “unreasonable weight” on the need to protect the public. Dorvee, 616 F.3d at 183.
Although Mantanes was also convicted of a noncontact offense, the judge here did not place unreasonable weight on the need to protect the public from Mantanes; it was just one of the many factors considered at sentencing. In evaluating this factor, the judge found it telling that Mantanes’ own expert concluded that he was a pedophile with ongoing fantasies. The judge also received victim impact statements from some of the then-children pictured in the pornographic images traded by Mantanes, as well as a statement from Mantanes’ estranged wife about the on-going damage his behavior has caused her family.
Illinois Gov. Pat Quinn not yet telling (and perhaps not yet sure?) whether he will sign death penalty repeal
As detailed in this Chicago Tribune article, which is headlined "Quinn refuses to be pinned down on death penalty repeal," the governor of Illinois is being coy about whether he will sign or veto the death penalty repeal bill passed by his state's legislature. Here are the details:
Gov. Pat Quinn said Wednesday that he would "follow my conscience" in deciding whether to sign a bill abolishing the death penalty that has been approved by the General Assembly. With the matter solely in his hands after historic votes by the state House and Senate, Quinn declined to give a firm answer on the direction he plans to take.
But the governor did point to the state's history of "serious problems" with the death penalty, which he said could have resulted in "terrible tragedies" if inmates wrongfully condemned to die had not been exonerated.
Quinn also said the opinions of legislators are "very serious indeed. These are men and women who went before the voters and got elected in their districts, and they voted their conscience."
In Chicago, Mayor Richard Daley made his position clear, saying certain crimes "should be handled" by the death penalty. "I have met parents, that their child has died, and this person has been out of prison," Daley said on Wednesday. "I mean, how do they live with that?"...
As Quinn pondered, a capital murder case in DuPage County moved forward, while the judge on a potential death penalty case in Lake County agreed to a delay at the defense attorney's request....
The Illinois Senate agreed to abolish the death penalty on Tuesday, five days after the House approved the measure. If the bill is signed by Quinn, Illinois would become the 16th state to end executions. The legislation follows years of controversy over the state's history of flawed prosecutions in capital cases.
A moratorium on the death penalty in Illinois, which reinstated capital punishment in 1977, has been in place since 2000. Even if Quinn signs the bill, the fate of 15 death row inmates remains unclear, according to the state Department of Corrections.
January 12, 2011
New report on the consequences for kids with parents in prison
As detailed on this webpage, the folks at the research organization Justice Strategies have a new report focused on the nearly two million minor children with a parent in prison. The full report, which is available here, is titled "Children on the Outside: Voicing the Pain and Human Costs of Parental Incarceration." Here is a snippet from the start of the executive summary:
The pain of losing a parent to a prison sentence matches, in many respects, the trauma of losing a parent to death or divorce. Children “on the outside” with a parent in prison suffer a special stigma. Too often they grow up and grieve under a cloud of low expectations and amidst a swirling set of assumptions that they will fail.
Fifty-three percent of the 1.5 million people held in U.S. prisons by 2007 were the parents of one or more minor children. This percentage translates into more than 1.7 million minor children with an incarcerated parent.
African American children are seven and Latino children two and half times more likely to have a parent in prison than white children. The estimated risk of parental imprisonment for white children by the age of 14 is one in 25, while for black children it is one in four by the same age.
"Ohio man accused of having sex with a corpse says he didn't know woman was dead"
The headline of this AP story not only is impossible for this blogger to resist, but also is certain to be fodder for late-night talk-show hosts. Readers are, of course, welcome to come up with their own punchlines (and alternative sentencing proposals) given these basic facts:
Police say an Ohio man accused of having sex with a corpse told investigators he didn't at first realize the woman was dead. Fifty-five-year-old Richard Elwood Sanden of Geneva, Ohio, was being held on $500,000 bond Wednesday in the Daviess County Jail in Washington, Ind., on charges including abuse of a corpse and possession of marijuana.
The Washington Times-Herald reports police arrested Sanden on Saturday night after they were called to the dead woman's apartment. The newspaper reports Sanden told police he was having sex with the 48-year-old woman whom he had known for a few months when he realized she wasn't breathing. He told police he administered CPR and called an ambulance.
Oral argument transcript in Sykes ACCA case
I am cautiously hopeful that the transcript of today’s Supreme Court oral argument in Sykes v. United States, which is now available here, will get me more excited about the eventual resolution of this case (backstory here). If/when it does, I will report back in this space.
Texas Court of Criminal Appeals calls permanent halt to trial court capital hearing
As detailed in this local article, the "highest criminal court in Texas this morning permanently halted a Houston judge's hearing on the constitutionality of the state's procedures surrounding the death penalty." Here's more of the basics:
State District Judge Kevin Fine began what was expected to be a two-week hearing about the death penalty last month after he declared the death penalty unconstitutional in March. He rescinded his March ruling and decided to hear evidence before making his decision.
Two days into the December hearing, the Court of Criminal Appeals agreed to reconsider a motion by the Harris County District Attorney's Office to stop the hearing and halted the proceedings until further notice.
The decision, released this morning, agrees with the district attorney's office that there is no basis under Texas law to conduct a pretrial evidentiary hearing to determine the constitutionality of a law.
The decision of the Texas CCA is available at this link, and it makes for an interesting read.
An appellate amicus brief in the Rubashkin case on sentencing issues
As regular readers may recall, and as detailed in this prior post, last summer a federal district court in Iowa decided to give Sholom Rubashkin a 27-year federal prison sentence for his leadership in a financial fraud involving his kosher meat-packing plant. Having spent some time looking at various facets of this high-profile case, I was troubled by the severity of this sentence and the district court's decision-making and I decided to help put together an amicus brief on sentencing issues as the case was appealed to the Eighth Circuit.
I am pleased to report that the Washington Legal Foundation (WLF) help me put together and file this amicus brief, as is detailed in this press release and this blog post from the fine folks at WLF. The full Rubashkin amicus brief and be downloaded at this link, and the WLF blog posting by Stephen Richer does an especially nice job spotlighting why I wanted to get involved and also what the brief argues:
Consider a man who has ten kids, is an active participant in his town, runs a business that provides a needed service for his religious community, and has never before been accused of a crime. Imagine that this man is convicted of financial fraud that is tenuously linked to large societal monetary loss. The alleged fraud served to keep the community business afloat, not to fund personal extravagances.
What type of punishment would this man deserve? A prison sentence? If so, how long? One year? Three years? But what about 27 years?...
That’s the penalty recently imposed by a judge in the Northern District of Iowa on Sholom Rubashkin, owner of Agriprocessors, a Kosher meat processing plant in Potsville, Iowa....
Washington Legal Foundation, representing 18 noted law school deans and professors, former federal judges, and former prosecutors, added its voice to the opposition on Monday, January 10th by filing a brief asking the U.S. Court of Appeals for the Eighth Circuit to vacate the sentence and remand it to another federal trial judge for resentencing....
WLF’s brief makes three arguments: First, that the district court’s calculation of the guideline range was contrary to the Sentencing Guidelines’ instruction and related jurisprudence; second, that the district court largely ignored the Supreme Court’s repeated admonition that a district court must not presume reasonable a sentence within the calculated Guidelines range; and third, that the functional life sentence given to Mr. Rubashkin (who is currently 51 years old) is incompatible with his personally history and is substantively much greater than necessary to comply with the purposes of sentencing set forth by Congress.
Related posts on the Rubashkin case:
- "More Former AGs Question Sentence Sought in Bank Fraud Case"
- Can and should religious considerations influence bail decisions?
- Federal sentencing hearing starting in high-profile Rubashkin white-collar case
- Federal prosecutors now seeking 25-year prison term for Rubashkin
- Kosher plant chief Sholom Rubashkin sentenced to 27 years imprisonment
January 12, 2011 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack
"DeLay flunked attitude test?: Harsh penalty could be linked to lack of remorse, some experts say"
The title of this post is the headline of this intriguing article in today's Houston Chronicle, which follows up on the notable Texas prison sentence given to former House leader Tom DeLay. Here are excerpts:
The three-year prison sentence meted out to former U.S. House Majority Leader Tom DeLay in a political money laundering case is far harsher than sentences recommended for two other public offenders recently convicted in Central Texas.
There is, however, a high likelihood that DeLay's case will be overturned on appeal before he ever sees the inside of a prison cell, according to several criminal defense lawyers. DeLay's sentence may reflect more on his remorseless attitude before visiting District Judge Pat Priest than on the seriousness of the crime, they said. "Maybe DeLay flunked the attitude test in front of Pat Priest," William Allison, a criminal law professor at the University of Texas, said Tuesday. "It's likely he copped a pretty bad attitude."
DeLay was convicted last November and sentenced Monday on felony charges of conspiracy and money laundering in a scheme to give $190,000 in corporate money illegally to seven Republican state House candidates in 2002. Priest gave Delay three years in prison on the conspiracy charge and 10 years of probation on the money laundering charge.
Two other recent high profile Central Texas cases involved far less punishment: Former state Rep. Kino Flores, D-Palmview, received probation last month on four felony counts of not properly reporting his income on state ethics forms, income prosecutors said he received by using his official position to demand a 10 percent payment from his business associates. Flores was sentenced by District Judge Bob Perkins, whom DeLay's lawyers had removed from his case in 2005.
The former general manager of the Pedernales Electric Cooperative, Bennie Fuelberg, in December received a recommendation of probation from a jury on felony charges of illegally funneling hundreds of thousands of dollars in co-op money to his brother. A final sentence in that case has not been issued.
DeLay's defense lawyer, Dick DeGuerin of Houston, Tuesday said DeLay's sentence is unfair, especially when compared to the one Flores received. "This was a guy who was known as Mr. Ten Percent. He took a kickback on everything," DeGuerin said. DeLay "didn't steal any money. He didn't rob anybody. He didn't beat anybody up."
Prosecutors had asked Priest for a longer sentence, at least 10 years, so DeLay would have to start serving time immediately. They said they wanted to send a signal that just because someone wears a suit and a tie does not mean he is going to get probation....
Sam Bassett, who was Flores' defense attorney, ... said he "was a little surprised" that DeLay received a prison sentence instead of probation in the case. He said the case is very different from the financial fraud cases involving people such as Enron's Jeffrey Skilling. "No one was defrauded or harmed in a direct way," Bassett said.
- Any (creative) suggestions for Tom DeLay's upcoming sentencing?
- Texas law providing wide discretion in sentencing of former House leader Tom DeLay
- Tom DeLay gets three-year prison sentence for state conspiracy and money laundering convictions
January 11, 2011
Struggling to get psyched for Sykes, another ACCA case before SCOTUS
On Wednesday morning, the Supreme Court will hear oral argument in Sykes v. US, yet another case on the docket to resolve a circuit split over what prior crimes trigger the severe mandatory minimum prison terms in the Armed Career Criminal Act. As this SCOTUSblog page explains, at issue in Sykesis "[w]hether fleeing the police in a car, after being ordered to stop, constitutes a 'violent felony' within the meaning of the Armed Career Criminal Act, which imposes heightened sentences for such violent felonies."
I wrote a preview of the Sykes case for the American Bar Association’s PREVIEW of U.S. Supreme Court Cases, which can be accessed here. In that preview, I sought to play up how this latest ACCA case "implicates a number of cross-cutting jurisprudential and policy considerations." But, somewhat annoyingly, the Justices have not in their recent ACCA work spent much time expounding upon any broader jurisprudential and policy considerations, and the issue in Sykesstrikes me as especially narrow. Thus, as indicated in the title of this post, I am struggling to get psyched for this SCOTUS sentencing case. Perhaps readers can use the comments to note reasons why Sykes is worth watching with some excitement or anticipation.
SCOTUS blocks Texas execution, but Oklahoma completed second execution of 2011
As detailed in this AP story, Texas death row defendant "Cleve Foster’s lethal injection was stopped by the U.S. Supreme Court so it can further review [his] appeal. In the court’s brief order [which is available here], Justices Antonin Scalia and Sam Alito indicated they would have allowed the punishment to proceed."
Meanwhile, as detailed in this Reuters story, "Oklahoma put to death on Tuesday ... Jeffrey David Matthews ... [who] was convicted of murdering Otis Earl Short, 77, his great uncle, during a robbery of the elderly man's home."
As this DPIC webpage details, Oklahoma now has executed in the first few weeks of 2011 only one less person than the state put to death in all of 2009 and in all of 2010. Meanwhile, the last-minute stay in Texas means that the Lone Star State is now certain to go more than three full months without an execution. That long a period between Texas executions has not happened since the Baze-created SCOTUS moratorium three years ago, and had not happened before then for more than a decade.
Possible death penalty repeal in Illinois now in hand of Governor Pat Quinn
As detailed in this Chicago Tribune report, Illinois might soon add to the number of states that have legislatively repealed the death penalty in recent years. Here are the basics:
A historic measure to abolish the death penalty in Illinois passed the state Senate today after nearly two hours of impassioned debate.
The ban on executions goes to Democratic Gov. Pat Quinn, who must sign the legislation for it to become law. During last fall's campaign, Quinn said he supports "capital punishment when applied carefully and fairly," but also backs the 10-year-old moratorium on executions.
The Senate voted 32-25 to approve the ban, with two members voting present. The measure passed the House last week.... Sponsoring Sen. Kwame Raoul, D-Chicago, urged his colleagues to “join the civilized world” and end the death penalty in Illinois....
The action comes 10 years after then-Gov. George Ryan placed a moratorium on the death penalty in Illinois following revelations that several people sent to Death Row were later exonerated. Quinn has not said whether he would sign the ban, but during last year's campaign said the moratorium should stay in place to see whether reforms have worked....
Only days before he left office in January 2003, Ryan granted clemency to 164 Death Row inmates even though sources on the Illinois Prisoner Review Board said the panel recommended clemency for no more than 10. There are 15 people on Death Row in Illinois, officials said.
Knowing nothing about the political lay of the land, I am inclined to predict that Governor Pat Quinn will sign this legislation. But maybe folks more knowledgeable concerning that state's politics might know reasons he would consider a veto.
Spotting some deep issues in potential capital prosecution(s) of Jared Loughner
This AP article, headlined "Insanity Defense Could Be Difficult for Ariz. Shooting Suspect," talks through some legal issues surrounding the capital prosecution(s) of a high-profile mass murderer:
In an earlier time, the emerging portrait of a deeply troubled young man might have given Jared Loughner's lawyers the basis of an insanity defense. But John Hinckley's successful insanity claim after shooting President Ronald Reagan led Congress to raise the bar, making the task harder.
The Justice Department has not said whether it will seek the death penalty against Loughner, the suspect in the shooting of Rep. Gabrielle Giffords and the deaths of a federal judge, a congressional aide and four other people. But federal prosecutors already are moving forward with charges, and veteran lawyers anticipate they will ask for him to be executed....
Before the attempted assassination of Reagan, Harvard Law School professor Alan Dershowitz said in a telephone interview Monday, "this would be a clear case of insanity, because the pre-meditation would not be seen as undercutting insanity, it would be part of demonstrating insanity." But under the post-Hinckley rules, he said, "that's a very uphill battle."
Public outrage over the jury's verdict in Hinckley's trial -- not guilty by reason of insanity -- prompted Congress to make it much more difficult to establish that claim in federal criminal trials.
Arizona also has modified the insanity defense so that a defendant in a state trial no longer can be found not guilty by reason of insanity. Instead, the jury can deliver a verdict of guilty but insane, said Pima County Attorney Barbara LaWall. "So the person is held at a state mental hospital, and if sanity somehow comes back, he's transferred to prison, not just let go," LaWall said.
The case against Loughner is at an early stage, as is his defense. His lawyers probably will spend their time making the strongest possible argument to dissuade prosecutors from pursuing the death penalty. "That's the task of his lawyer in the first instance," said Neal Sonnett, a Miami defense lawyer.
Among arguments that could be made is that, if not insane, Loughner was mentally impaired. That argument concedes that a defendant bears some responsibility for what he has done but lacks the guilt necessary to face the death penalty. The compromised state of mind sometimes is referred to as "diminished capacity."...
A veteran of death cases, San Diego attorney Judy Clarke, led the team that represented Loughner at his court appearance Monday. Clarke succeeded in negotiating a guilty plea and a life sentence for the Unabomber, Theodore Kaczynski. She also helped spare the life of serial bomber Eric Rudolph and Susan Smith, convicted of drowning her two little boys....
Even if Loughner were to avoid a federal death sentence, he still could face state murder charges that carry with them the possibility of execution, lawyers said. "It's often the case that both jurisdictions would file charges and then sort it out later," said John Canby of Phoenix, a board member of the state association of criminal defense lawyers. "If for some reason, the feds didn't want to go for the death penalty or didn't get it, it would be available at the state level perhaps."...
LaWall said her office would handle all the other charges against Loughner, including for four deaths of people who were not federal employees, more than a dozen wounded and dozens more who were in the line of fire but not injured. Her staff is researching whether state charges have to wait until the federal prosecution is complete. "If it takes two years to prosecute in the federal system, I don't want to make all these witnesses and victims wait," she said.
LaWall said the lead prosecutor from her office on the case has handled dozens of capital trials and that a team of prosecutors would weigh whether to seek the death penalty. She said at least two factors were present in favor of it -- multiple victims and, with the death of 9-year-old Christina Taylor Green, a victim under the age of 15.
I am not aware of any rigid doctrines that would prevent the local prosecutor from seeking to start a state capital prosecution ASAP for the murder of state citizens even though federal charges for other crimes are underway. I can, however, imagine a number of challenging practical issues arising from state charges going forward now: would the feds need to release Loughner to state authorities to enable him to appear in state court to respond to state charges? would a team of state lawyers need to be appointed to defend him on state charges?
More fundamentally, as charges unfold in either or both jurisdictions, the apparent mental instability of Loughner and the huge media attention surrounding this case will create challenging legal issues in any capital trial: can he get a fair trial in Tucson or anywhere in Arizona? can/will his lawyers raise a (novel?) claim that the Supreme Court's work in Atkins suggests that not merely the mentally retarded but also the mentally ill should be categorically ineligible for the death penalty?
I could go on and on, but I am sure that we will all have lots and lots of time to discuss and debate these issues and many others in the Loughner case. I will be (pleasantly) surprised if any capital trial gets started before 2012, and it will surely be many years before Loughner gets anywhere near an execution (unless he were to waive all his appeals and be found competent to make this decision).
Related recent posts:
- An obvious and ultimate case for the federal death penalty
- Father of slain 9-year-old in Tucson calling for execution of shooter
En banc Sixth Circuit struggles through relationship between 35(b) and 3553(a)
The full Sixth Circuit has a lot of interesting things to say about sentencing procedure and practice in a lot of opinions today in US v. Grant, No. 07-3831 (6th Cir. Jan. 11, 2011) (available here). Here is how the opinion for the majority gets started:
Defendant–appellant Kevin Grant pled guilty to possession of a firearm, conspiracy to commit money laundering, and operation of a continuing criminal enterprise. The district court sentenced Grant to twenty-five years in prison, the mandatory minimum sentence for those charges. After Grant’s sentence was affirmed by a panel of this court, the government filed a motion pursuant to Federal Rule of Criminal Procedure 35(b) to reduce his sentence based on his substantial assistance in the prosecution of others. The district court granted the motion and reduced Grant’s sentence to sixteen years. Grant now appeals. He claims first that the district court erred by not considering the 18 U.S.C. § 3553(a) factors when deciding the Rule 35(b) motion. Second, Grant claims that the district court erred in its calculation under the United States Sentencing Guidelines during his original sentencing. For the following reasons, we affirm.
This first paragraph from the principal dissent highlights why there is so much to this federal sentencing case:
In an apparent attempt to craft a tacit compromise, the en banc majority and concurring opinions shift their focus away from Petitioner and instead create an unmanageable legal standard. Because the district court erroneously concluded that it may not consider the factors enumerated in 18 U.S.C. § 3553(a) on a Rule 35(b) motion, this Court should vacate the district court’s decision and remand for reconsideration. Without deciding whether the district court was required to consider § 3553(a), it is clear, as the panel majority found, that a district court is not prohibited from doing so. In finding that it was prohibited from doing so, the district court committed legal error. I therefore respectfully dissent.
January 11, 2011 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
A (partial) account of deep split over application of FSA's new statutory terms to pipeline cases
US District Judge Gregory Presnell, whose first opinion on the application of the new Fair Sentencing Act to pending cases was posted here, has issued now another interesting FSR order entered earlier this week in US v. Green, Case No. 6:08-cr-270-Orl-31KRS (M.D. Fla. Jan. 7, 2011) (available for download below). This opinion notes and summarizes the district court divisions regarding the application of the FSA to offenses committed before its enactment:
[T]he Court has now obtained a survey from counsel in a related case, United States v. Smith, No. 6:10-cr-202 (Doc. 54), which summarizes all written opinions dealing with application of the FSA to defendants whose conduct occurred before August 3, 2010, when the FSA was enacted, but who were sentenced after its enactment. That survey is attached [and can also be downloaded below].
In sum, there have been no circuit court opinions dealing with the application of the FSA to defendants in the same position as this defendant -– i.e., who were sentenced after August , 2010, for offenses committed before that date. There are, however, eighteen district court opinions that fall into this category. Eleven of these opinions, from nine states and ten districts, have held that the FSA should be applied in this circumstance. Seven opinions from three states and four districts have held otherwise.
I am not certain that accounting of 18 written district court opinions on the application of the FSA to these pipeline cases is the entire universe of written opinion on this issue and I am certain that there have been a lot of addition on-the-record resolutions of these issues by various district judges going both ways without the production of a written opinion. Thus, Judge Presnell's survey is just a partial account of the deep split in the district courts over this issue, which is highly consequential to lots and lots of defendants in lots and lots of courts around the nation.
As explained in this prior post, I remain troubled that the Department of Justice persists with its advocacy policy calling for the unfair and now reformed old crack sentencing statute to be applied for as long as possible to as many defendants as possible. That concern is enhanced by the reality that this advocacy position is contributing to deep disparity in the sentencing of pipeline crack cases (and my view that DOJ ought to be using its litigation resources and energies on other issues). It will be interesting to keep an eye on these issues of law and advocacy as they eventually moves to the circuits and possible the US Supreme Court.
First public meeting of the new US Sentencing Commission
As detailed in this public notice, a public meeting of the US Sentencing Commission is scheduled for this afternoon. The public notice reveals that the USSC has one especially notable item on its agenda: "Possible Votes to Publish Proposed Guideline Amendments and Issues for Comments."
In addition to this one notable agenda item, this public meeting is a big deal because it will be the first public event run by Judge Patti B. Saris, whom the Senate confirmed as a Commissioner and the new USSC Chair just a few weeks ago (noted here). For that reason and others, this also presents a good time for me to remind everyone the Federal Sentencing Reporter is still seeking and accepting commentaries for its forthcoming Special Issue designed to to provide "Advice for the U.S. Sentencing Commissioners." Details about this publication opportunity are available here.
Missouri Governor commutes death sentence to LWOP based on innocence concerns
As detailed in this local article, "Missouri Gov. Jay Nixon on Monday commuted the death sentence of a convicted murderer to life in prison without parole." Here is more:
Richard Clay was scheduled to be executed Wednesday for a 1994 murder in New Madrid County, in Missouri’s Bootheel region.
In a statement announcing the decision, Nixon said he remains convinced of Clay’s involvement in the murder and supports the guilty verdict. “I have concluded, however, to exercise my constitutional authority and commute Richard Clay’s sentence to life without the possibility of parole,” Nixon said in the statement. “Richard Clay’s involvement in this crime is clear, and he must, and will, serve the remainder of his life behind bars for his role in this heinous act.”
A spokesman for Nixon said the governor would not offer any additional details about his decision. Attorney General Chris Koster also released a statement, saying he respects Nixon’s decision. Mel Carnahan was the last governor to commute a death sentence in Missouri. That came in 1999.
Clay got the news in a phone call from his attorney, Jennifer Herndon, who said he was “obviously relieved.” “It’s a fabulous step in the right direction,” said Herndon, who added that she remains convinced that Clay is innocent.
Herndon said that she will continue to work to have Clay cleared. “It’s not over,” she said. “It’s the first step.”
A jury in Callaway County found Clay guilty in the 1994 killing of Randy Martindale. Clay was sentenced to death in 1995.
Martindale’s estranged wife, Stacy Martindale, and a man she was having an affair with at the time, Charles Sanders, also were charged in the murder-for-hire plot. Stacy Martindale was convicted and sentenced to 15 years in prison. Sanders, who testified against Clay, got probation.
Feds make case to Third Circuit that corruption sentence too low for state senator
As detailed in this local article, which is headlined "Prosecutors argue for stiffer sentence for Fumo," a real interesting sentencing appeal is heating up in the Third Circuit. Here are the basics:
Federal prosecutors Monday again ripped into a judge's decision to reduce former State Sen. Vincent J. Fumo's sentence for corruption in return for what the judge called Fumo's "extraordinary" public service.
Drawing upon an FBI investigation of Fumo's travel, the prosecutors said the claim that Fumo toiled tirelessly for the public was both a cliché and a myth. In fact, Fumo "devoted a huge amount of time to vacationing and leisure activities," spending a quarter of his time on holiday in Martha's Vineyard and Florida.
The two prosecutors noted that besides serving as a Democratic legislator, Fumo worked as a "rainmaker" for a Philadelphia law firm and was the chairman of a bank. The firm paid him nearly $1 million yearly to drum up business, and the bank also compensated him heavily....
On Monday, the prosecutors fired their final salvo, a 204-page brief, in their fight to have Fumo hauled back into court to face a resentencing in his 2009 corruption conviction.
In a decision that stirred widespread public outrage, U.S. District Judge Ronald L. Buckwalter sentenced Fumo to serve 55 months in prison for his crimes. A jury found Fumo guilty on every count in a massive indictment that charged the once-powerful legislator with defrauding the state Senate and two nonprofit organizations, and with leading the cover-up to try to thwart the FBI's probe.
The government sought a much stiffer term, agreeing with a conclusion by the U.S. Probation Office that Fumo's wrongdoing meant he should face up to 27 years behind bars under nonmandatory federal sentencing guidelines.
Buckwalter interpreted the guidelines far differently. He said they called for Fumo to receive a punishment of at most 14 years. Then, he gave the Democrat a big break because of his record in office over 30 years. "You worked hard for the public, and you worked extraordinarily hard, and I'm therefore going to grant a departure from the guidelines," the judge said.
Fumo, 67, has now served 17 months of his sentence, at a prison in Kentucky. After one more filing from the defense and probable oral arguments, he and the public will likely learn later this year whether the U.S. Court of Appeals for the Third Circuit will affirm his sentence or order a new sentencing hearing.
In a defense filing last month, Fumo's legal team said that Buckwalter was on firm legal ground in crafting the sentence and that the Third Circuit court should not second-guess the judge.
In Monday's brief and an even longer one filed last year, the prosecutors said Buckwalter had made numerous errors in calculating the guidelines applicable to Fumo and a codefendant, former Senate aide Ruth Arnao. Arnao is now free, having served her sentence of one year behind bars. Buckwalter, they wrote in Monday's filing, made "fundamental mistakes, on the basis of no stated reasoning, which contributed significantly to the grossly lenient sentences imposed in this case."
Citing a Third Circuit precedent, they said that the judge had failed to heed a rule that corrupt officials should not get special credit for "civic and charitable work," because "we expect such work from our public servants." Such credit should only be given when the official "goes well beyond the call of duty and sacrifices for the community," the appellate court ruled.
But Fumo, the prosecutors said, did not work especially hard. And, they added, "he presented no evidence that he sacrificed in any other way; rather he used his public position to gain great riches (and steal more), and gave almost none of it to charity."
Related posts concerning Fumo sentencing and appeal:
- State senator Fumo gets below-guideline sentence of 55-months imprisonment on corruption charges
- Comparing white-collar apples and drug dealing oranges at sentencing
- "Feds seek to appeal 'unreasonable' Fumo sentence"
- Continued buzzing about the (soft?) sentence given to Fumo
- High-profile below-guideline political corruption sentence headed to Third Circuit
- An amusing spat in the Third Circuit over a not-very-brief sentencing brief
January 10, 2011
Tom DeLay gets three-year prison sentence for state conspiracy and money laundering convictions
As detailed in this local report, "[f]ormer U.S. House Majority Leader Tom DeLay today was sentenced to three years in prison for his conviction on a charge of conspiracy to commit political money laundering. He also was sentenced to five years in prison on a money laundering conviction, but the judge probated that to 10 years of community supervision." Here is more:
DeLay was taken into custody by Travis County deputies, but will be released on $10,000 bail pending appeal.
DeLay pleaded for himself before visiting District Judge Pat Priest. "I don't feel remorseful for something I don't think I did," DeLay told the judge.
Prosecutors urged Priest to sentence DeLay to prison immediately. But defense lawyer Dick DeGuerin said the case destroyed DeLay's political career and life and that was punishment enough. DeGuerin promised to appeal DeLay's conviction.
DeLay was convicted of conspiracy and money laundering last November for his participation in a scheme to circumvent Texas elections laws banning the use of corporate money in candidate campaigns.
I know precious little about Texas sentencing law, policy and procedure, but this sure seems like a relatively stiff sentence under all the circumstances. Perhaps readers have some insights as to whether this notable sentencing decisions "feels right" and also about whether DeLay might have been better off seeking a jury sentencing proceeding (as I believe Texas law permits) rather than leaving this sentencing to the state judge.
Notable lengthy dissent about Commerce Clause after denial of cert in criminal case
As detailed in this new post by Lyle Denniston at SCOTUSblog, two Justices "in a dissent that may reveal a new division in the Court over Congress’s power to pass legislation under the Commerce Clause, on Monday accused the Court majority of silently accepting 'the nullification' of the Court’s recent rulings on that power." Astute Court watchers will surely not be surprised to learn that it is Justices Scalia and Thomas who lodge this dissent.
Justice Thomas is the one who took pen to paper in this eight-page dissent in Alderman v. US, a case in which the defendant challenged a federal law which makes it a crime for a convicted felon to possess a bulletproof vest or other body armor that had traveled across state lines. Justice Thomas's dissent begins and ends with these paragraphs:
Today the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence. Joining otherCircuits, the Court of Appeals for the Ninth Circuit has decided that an “implic[it] assum[ption]” of constitutionality in a 33-year old statutory interpretation opinion“carve[s] out” a separate constitutional place for statuteslike the one in this case and pre-empts a “careful parsing of post-Lopez case law.” 565 F. 3d 641, 645, 647, 648 (2009) (citing Scarborough v. United States, 431 U. S. 563 (1977)). That logic threatens the proper limits on Congress’ commerce power and may allow Congress to exercise police powers that our Constitution reserves to the States. I would grant certiorari....
Fifteen years ago in Lopez, we took a significant steptoward reaffirming this Court’s commitment to properconstitutional limits on Congress’ commerce power. If the Lopez framework is to have any ongoing vitality, it is up tothis Court to prevent it from being undermined by a 1977 precedent that does not squarely address the constitutional issue. Lower courts have recognized this problem and asked us to grant certiorari. I would do so.
Louisiana judges not using authority to order chemical castration for sex offenders
This local article from Louisiana, headlined "New law for sex offenders not used; chemical castration available, unapplied," reveals one reason why it is hard to find out if a chemical response to sex offending is really worth trying:
Few, if any, judges appear to be taking advantage of a 2008 law that allows them to sentence sexual offenders to chemical castration.
Pam LaBorde, spokeswoman for the state Department of Public Safety and Corrections, said she could not find any inmates who must undergo castration as part of his sentence for a sex crime under the new law.
The law, which was heralded by Gov. Bobby Jindal, gives judges the option of ordering injections of medroxyprogesterone acetate, which suppresses a man’s sex drive by reducing testosterone levels.
The law applies to the crimes of aggravated rape, forcible rape, second-degree sexual battery, aggravated incest, molestation of a juvenile when the victim is under age 13 and aggravated crime against nature. The injections are mandatory on a second offense.
Previously, certain offenders could be ordered to undergo chemical castration only if they had two or more convictions of a sex-related crime or their victim was 12 or younger. Jindal said in a statement that he wanted to create a deterrent to “heinous and disgusting crimes. We think it’s critical to give the judicial system and our law enforcement officials every tool possible to punish these monsters and keep them away from our children,” the governor said.
Assistant District Attorney Sue Bernie, who prosecutes sex crimes for the East Baton Rouge District Attorney’s Office, said she is unlikely to request that a judge sentence an offender to chemical castration under the new law. “Quite frankly, the legislation is ill-advised,” she said. “It’s not that simple. It doesn’t cure it.”
Bernie said she knows of no one in East Baton Rouge Parish who has been ordered to undergo chemical castration. She said the process fails to cure offenders of their deviant urges.
Former Democratic state Sen. Nick Gautreaux, who sponsored the legislation, disagrees. He said the process works as long as it is coupled with therapy.
Gautreaux said judges likely are not using the law because they are unfamiliar with it. “It’s a new law. It just got passed,” he said. Gautreaux said offenders should be chemically castrated regardless of whether they molest one child or 20.
Prosecutor Roger Hamilton with the 15th Judicial District in Vermilion, Acadia and Lafayette parishes said he recently tried to use chemical castration as a bargaining chip with a repeat sex offender.
Hamilton said he offered Lance Barton 25 years in prison as long as he agreed to be chemically castrated for in the molestation of a 10-year-old girl. Barton rejected the offer and pleaded not guilty. He was convicted and sentenced to 25 years in prison. Barton had prior sex crime convictions in Alexandria, Baton Rouge and Livingston Parish — making him eligible for prosecution as a habitual offender.
After the latest conviction, Hamilton said, he opted to bring Barton back to court for prosecution as a habitual offender rather than push for chemical castration. Habitual offenders face life in prison. “With a life sentence, you will never be around kids again,” Hamilton said.
Father of slain 9-year-old in Tucson calling for execution of shooter
As detailed in this New York Post article, which is headlined "Father of child killed in Giffords rampage wants death penalty," at least one victim of the shooting rampage this weekend in Arizona is already calling for the ultimate punishment for the offender:
Devastated by the death of his only daughter in the bloody ambush on Rep. Gabrielle Giffords, John Green — son of former Mets manager Dallas Green — today lashed out at the crackpot killer. "I think they should execute him," said a broken-hearted John Green, whose 9-year-old child Christina Taylor was fatally shot when crazed gunman Jared Loughner, 22, opened fire at a political meet-and-greet hosted by Giffords yesterday.
Giffords was critically wounded in the attack; Christina and five others at the event were killed....
The devastation has been overwhelming, John Green told The Post, unable to hold back tears. "She was born on 9/11, so when you look at the bookends of her life, they were pretty tragic," he said. "But everything in the middle was the best."...
The grieving dad [said] his daughter loved baseball, dancing, swimming and horseback riding. He feels nothing but disgust for the shooter who ended her life. "It would be a waste of millions of dollars" to keep him alive, he said. "They should use the money to help kids in school instead of some idiot."
As this long article in the Politico details, John Green's wish may get fulfilled. The piece is headlined "Federal charges could carry death penalty."
Texas law providing wide discretion in sentencing of former House leader Tom DeLay
As detailed in this local article, which is headlined "Sentencing hearing to begin in Tom DeLay trial," former U.S. House Majority Leader Tom DeLay could soon get life imprisonment or get merely probation as a sentence following his recent state corruption convictions. Here are the intriguing details:
The former Houston-area Republican congressman will be back in court on Monday for the sentencing phase of his trial after his Nov. 24 conviction on charges of money laundering and conspiracy to commit money laundering in a scheme to illegally funnel corporate money to Texas candidates in 2002.
Unlike DeLay's trial, which lasted nearly a month, the sentencing hearing is expected to take about two days. DeLay has chosen Senior Judge Pat Priest to sentence him. Priest says he is likely to make a quick decision after both prosecutors and defense attorneys finish presenting witnesses.
While he faces up to life in prison on the money laundering charge and up to 20 years on the conspiracy charge, DeLay is also eligible for probation. "Of course we will ask the judge to grant probation," said Dick DeGuerin, DeLay's lead attorney. "This is not a matter of economic loss, not a matter of anyone being injured or of any evil intent."
Up to nine witnesses are expected to testify on DeLay's behalf, including former U.S. House Speaker Dennis Hastert and others who worked with him. DeLay's lawyers also submitted more than 30 character and support letters from friends and political leaders, including Israeli Prime Minister Benjamin Netanyahu and eight current U.S. congressmen. Most of the letters ask for leniency in the sentencing.
Steve Brand, one of the prosecutors, said they planned on calling several witnesses. He declined to comment on what the witnesses would testify about or what sentence the Travis County District Attorney's Office planned to request. Some legal experts believe DeLay will likely receive little, if any, prison time.
"Diehard Democrats will want to see the book thrown at him and his conservative supporters will feel (any) sentence will be unjust," said Bradley Simon, a New York criminal defense attorney who's followed the case. "No matter what the judge says, he is unlikely to please anybody."
In this prior post, a number of commentors had a number of creative suggestions for the sentencing judge in this notable case. Folks should, of course, feel free to make some more suggestions now.
January 10, 2011 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack
January 9, 2011
"Separate But Unequal: The Federal Criminal Justice System In Indian Country"
The title of this post is the title of this new article available via SSRN. Here is the start of the abstract:
In this Article, Troy Eid, a former United States Attorney for the District of Colorado, and Carrie Covington Doyle conclude that the federal criminal justice system serving Indian country today is “separate but unequal” and violates the Equal Protection rights of Native Americans living and working there. That system discriminates invidiously because it categorically applies only to Native Americans and then only to crimes arising on Indian lands. It is unequal because it is largely unaccountable, needlessly complicated, comparatively under-funded, and results in disproportionately more severe punishments for the same crimes, especially for juveniles.
An obvious and ultimate case for the federal death penalty
The title of this post is my sentencing reaction to the tragic events that unfolded yesterday in Arizona when a young angry man went on a shooting rampage at the political event of Congresswoman Gabrielle Giffords. This CBS report on the victims of the incident details that the "six people who died in Saturday's assassination attempt of an Arizona Congresswoman ranged from a highly-esteemed Federal judge to a child born on September 11, 2001" and that a total of 19 people were wounded at the shooting in Tucson.
Early reports suggest that the shooter had some mental issues, but it does not appear that he would/will qualify as legally insane. And, no matter what the back-story of the offender, this kind of offense would appear to be exactly the kind of horrific violent senseless crime that calls for pursuing the ultimate punishment that a nation has. In the United States, it has long been clear that the people want the death penalty as an ultimate punishment, and I expect that this will be the way in which US Attorney General Eric Holder plans to seek justice.
UPDATE AND CLARIFICATION: As detailed in this DOJ press release, "the United States Attorney for the District of Arizona, Dennis K. Burke, announced today that his office filed a federal complaint against Jared Lee Loughner [who] is suspected of shooting U.S. Representative Gabrielle Giffords, Chief Judge John Roll, Giffords' staff member Gabriel Zimmerman and approximately 16 others Saturday in Tucson, Ariz. The federal complaint alleges five counts against Loughner." The counts in the complaint are detailed in the DOJ press release.
I wish to clarify that the purpose of my initial post was to indicate that the kind of crimes for which Loughner is accused are the sort that ought, in my view, clearly be the basis for a federal death penalty prosecution. I did not mean to rush to judgment and assert at this early stage that Loughner can/should/must be sentenced to death and executed. Rather, my intented point was that the kinds of crimes allegedly committed by Loughner and the kinds of crimes that justify, in my mind, the U.S. Department of Justice to pursue a federal prosecution that includes the threat of the ultimate federal punishment authorized by law.