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June 25, 2011

"Gov. Brownback starts faith-based program for parolees"

The title of this post is the headline of this new article discussing an interesting initiative by the Governor of Kansas to improve reentry services.  Here is how it starts:

Kansas needs 5,000 volunteer mentors a year for paroled criminals, Gov. Sam Brownback said this week. He spoke Monday in Wichita at the launch of an effort to merge government resources, social services, churches, businesses and mentors to keep parolees from returning to prison.

He announced the Out4Life faith-based program at the start of three days of workshops in which service providers and others discussed re-entry approaches. The Kansas Department of Corrections will work with Prison Fellowship, a Christian group that created Out4Life about two years ago.

Brownback said he wants a mentor for each released criminal. “What we’re asking is for people of heart in all faiths and people of goodwill to come forward and help us out with this,” he said. “We get it right, the cost to the state goes down, crime goes down in the state.”

Kansas officials say they release about 5,000 inmates a year and about 40 percent of them will return to prison within three years.

As states struggle to offset budget cuts to their re-entry programs, Kansas becomes the 13th state to adopt the program, officials said. “As the states have cut back,” said Pat Nolan, a vice president with the Prison Fellowship, “Out4Life is a way of calling the community and the private sector to come alongside government.”

Alex Luchenitser, a lawyer with Americans United for Separation of Church and State, said such programs might coerce people into religion and cut out those who resist. “The states need to provide nonreligious re-entry programming that all inmates can comfortably take part in,” he said.

Nolan said, “We give them the goodness of the gospel,” but people do not have to accept it to get help with finding jobs, housing, substance abuse treatment and supportive relationships. “The mentoring is by far the most effective part,” he said. “A lot of these inmates have never had an adult in their life worth looking up to.”

June 25, 2011 in Reentry and community supervision, Who Sentences? | Permalink | Comments (4) | TrackBack

June 24, 2011

To resist capital prosecution, RI's Gov refusing to turn murderer over to feds

A real interesting federalism-and-the-death-penalty story is now brewing in Rhode Island, as detailed in this new local article headlined "Chafee refuses to give suspect to feds."  Here are the basics:

Governor Chafee is refusing to turn over a suspected murderer in state custody to the federal government, declaring that doing so would expose prisoner Jason Wayne Pleau to the death penalty, a penalty he says has been “consciously rejected” by Rhode Island, even for the most heinous of crimes.

In a letter dispatched to U.S. Attorney Peter F. Neronha Thursday afternoon, Chafee said he is not going to allow the transfer of Pleau, who has been accused of robbing and killing gas station manager David D. Main as he prepared make a deposit at a Citizens Bank branch in Woonsocket on Sept. 20.

If prosecuted in the federal system, Pleau would fall under the Hobbs Act, in which conspiracy and robbery can be punishable by life imprisonment or death if a firearm was used in a crime that results in death.

In his letter, Chafee said his rejection of the federal request “should in no way minimize the tragic and senseless nature of Mr. Main’s murder,” and declared that “the person or persons responsible for this horrific act must, and will, be prosecuted and punished to the full extent of the law.  I extend my deepest sympathy to Mr. Main’s family for their unspeakable loss.”

At the same time, he said Rhode Island would not impose the death penalty.  “In light of this long-standing policy, I cannot in good conscience voluntarily expose a Rhode Island citizen to a potential death-penalty prosecution.  I am confident that Attorney General [Peter F.] Kilmartin and Rhode Island’s criminal justice system are capable of ensuring that justice is served in this matter.”

Chafee has been a longtime opponent of capital punishment.  In an August 2006 debate with Cranston Mayor Steven Laffey, Chafee was asked if he would support the death penalty for Osama bin Laden if he were caught and convicted of masterminding the Sept. 11, 2001, attacks.  “It’s a highly emotional issue,” he said.  “Rhode Island executed an innocent man in the 19th century, and I oppose the death penalty.”...

Jarad Goldstein, a professor of constitutional law at Roger Williams University, said it’s possible Chafee was within his legal rights to turn down the request, given that the federal government didn’t get a court order that would have mandated it be given custody, but made the request under another agreement that allows states to request an interstate retainer. 

“This agreement gives each state the discretion to decline a request from another state. It may be that the state is within its rights, though it is still not clear to me whether a state can decide not to turn over a defendant because it disagrees with the federal policy,” Goldstein said. “Usually, federal law trumps state policy but, in this case, I think an argument can be made either way.”  Goldstein said the federal prosecutors could get an order from a federal judge that state officials could not ignore.

Jim Martin, a spokesman for the U.S. Attorney, said Neronha was faxed a copy of Chafee’s letter prior to his getting a plane to Rhode Island after attending a daylong conference in Washington.  He said Neronha told him that his office plans to “move forward with the prosecution” and had other ways of gaining custody....

Ironically, Pleau’s case came up last year as an example of competing federal-state jurisdictions.  At a program at the Roger Williams University School of Law in November 2010, Neronha and then-Attorney General Patrick C. Lynch used the case — the killing had occurred just about two weeks before — as an example of competing state and federal interests.

Lynch and Neronha said they would review cases to determine which office had stronger case and better chance to win.  Sometimes, state or federal law allows more leeway, or permits more evidence for a particular type of crime, they said, and sometimes the greater sentence available was a factor.

With Pleau, Rhode Island had an interest in the murder of one of its citizens, Lynch said, and one of the defendants in the case had a suspended sentence for a previous state conviction.  Neronha said the federal government had traditionally taken an interest in crimes involving banks. “Banks are important to the United States,” he said. “People who use them are important to the United States.”

Some additional layers to this interesting story comes from this follow-up local report, headlined "Man Chafee shielded from death penalty plans guilty plea," which reports these details about how the defendant hopes this case will get resolved:

A day after Governor Chafee, citing a possible federal death penalty, refused to hand murder suspect Jason W. Pleau over to U.S. authorities, Chafee's office on Friday released a letter from the public defender stating that Pleau wants to plead guilty in return for a sentence of life with no parole.

John J. Hardiman, public defender, notified assistant state Attorney General Randall White of the development on May 17, according to a copy of Hardiman's letter supplied by the governor's office.  On Thursday Chafee rejected the U.S. Government's request for temporary federal custody of Pleau, who is charged with murder in the case of a Woonsocket gas station owner killed on the steps of a bank.

And the headline of this additional local story highlights yet another element of, and perspective on, this interesting case: "Murdered man's family 'outraged' at gov"

June 24, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (44) | TrackBack

Conrad Black has more federal time to do after resentencing

As detailed in this Reuters piece, which is headlined "Ex-media mogul Conrad Black sent back to prison," today's highest-profile federal sentencing did not result in merely a time-served outcome.  Here are the particulars:

A U.S. judge on Friday ordered former media baron Conrad Black to serve 13 more months in prison for his fraud and obstruction of justice conviction.  Judge Amy St. Eve of U.S. District Court, who sentenced Black to 6-1/2 years following his 2007 trial, ordered the 66-year-old member of Britain's House of Lords to serve a total of 42 months, of which 29 months has already been served.

Black's wife, Barbara Amiel Black, collapsed immediately after St. Eve ruled, and was assisted out of the courtroom by medical personnel.  Black was released from prison in July 2010 based on a successful appeal to the U.S. Supreme Court.  The high court narrowed the scope of the federal honest services law used to help convict him.

St. Eve said she took into accounts letters from inmates who had served time with Black, which said he had tutored and mentored them.  But she said she also took into account the harm Black did to shareholders of Hollinger International, the media company he had controlled. "You had a duty of trust.  The shareholders put their trust in you. And you violated that trust," St. Eve said.  She said the sentence would "send a message to executives in your position to show respect for the law."...

Black was convicted of scheming with partner David Radler and other executives to siphon off millions of dollars in proceeds from the sales of newspapers as they unwound Hollinger International, then the world's third-largest publisher of English-language newspapers.  It once operated the Chicago Sun-Times, the Jerusalem Post, London's Daily Telegraph and dozens of other newspapers across North America.

June 24, 2011 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (2) | TrackBack

Eleventh Circuit panel rules FSA's lower crack terms apply to defendants sentenced after enactment

Big ruling on crack sentencing today from the Eleventh Circuit on an issue that has divided district courts and is starting to see numerous circuit courts weigh in.  Here is how the opinion in US v. Rojas, No. 10-14662 (11th Cir. June 24, 2011) (available here).

The issue in this appeal is whether the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter.  We conclude that it does.

In May 2010, Carmelina Vera Rojas pleaded guilty to one count of conspiring to possess with the intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and two counts of distributing 5 grams or more of cocaine base, in violation of § 841(a)(1).  Her sentencing was scheduled for August 3, 2010, which as it so happened, was the date on which President Obama signed the FSA into law.  The district court granted the parties a continuance to determine whether Vera Rojas should be sentenced under the FSA.  After considering the parties’ arguments, the district court concluded that the FSA should not apply to Vera Rojas’s offenses; in September 2010, the court sentenced Vera Rojas to ten years’ imprisonment.

On appeal, Vera Rojas argues that the district court erred in refusing to apply the FSA to her sentence.  Because she had not yet been sentenced when the FSA was enacted, Vera Rojas believes that she should benefit from the FSA’s provision raising the quantity of crack cocaine required to trigger a ten-year mandatory minimum sentence.  Further, Vera Rojas contends that the FSA falls within recognized exceptions to the general savings statute, 1 U.S.C. § 109.  Relying in large part on the general savings statute, the government contends that Congress’s omission of an express retroactivity provision requires that the FSA be applied only to criminal conduct occurring after its August 3, 2010, enactment.  We conclude that the FSA applies to defendants like Vera Rojas who had not yet been sentenced by the date of the FSA’s enactment.  The interest in honoring clear Congressional intent, as well as principles of fairness, uniformity, and administrability, necessitate our conclusion.  Accordingly, we reverse and remand to the district court for re-sentencing.

Some posts on this FSA pipeline issue:

June 24, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

Sentencing meets the First Amendment in DC Circuit material witness ruling

An interesting issue of sentencing proceedure, victims' rights and the First Amendment is addressed today by a DC Circuit panel in US v. Brice, No. 10-3079 (DC Cir. June 24, 2011) (available here).  Here is how the opinion starts:

Jaron Brice was a pimp who prostituted under-age girls, among others. He was convicted of various federal sexual abuse crimes, and he was sentenced to 25 years in prison. At his sentencing hearing, the District Court referred to sealed material witness proceedings concerning two victims of Brice’s activities.  After sentencing, Brice asked the District Court to unseal the records of those two material witness proceedings.  The District Court denied the request.  Brice appeals that denial, claiming that the First Amendment guarantees a right of access to material witness proceedings.  See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564-80 (1980).  We assume arguendo that the qualified First Amendment right of access to judicial proceedings extends to material witness proceedings.  Even so, under our First Amendment access precedents, the public was not entitled to the records here, which contained “substantial amounts of material of an especially personal and private nature relating to the medical, educational, and mental health progress” of the victims.  United States v. Brice, Nos. 05-405 & 05-406, slip ops. at 2 (D.D.C. Aug. 6, 2010) (orders denying motions to unseal); see Washington Post v. Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991).  We affirm the orders of the District Court

June 24, 2011 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

Any predictions for Conrad Black's federal resentencing?

As effectively detailed in this National Post piece, the high-profile trial, sentencing, appeals and now resentencing comes to an end today in a federal district court in Chicago. Here is the backstory:

Today, Lord Black, 66, returns to Judge St. Eve’s courtroom in the Everett McKinley Dirksen Federal courthouse, where the trial judge will mete out a new punishment for his diminished slate of convictions. It is widely expected to be a more lenient sentence than the 78-month prison term in a U.S. federal minimum-security penitentiary in Florida, where she dispatched him in March, 2008.

Still, it won’t be the complete vindication he sought — and promised — since his legal ordeal began six years ago. Instead, in the wake of a partial victory at the U.S. Court of Appeals for the Seventh Circuit, the former international press baron now faces the stark prospect of returning to prison for a shorter stint, or deportation from the United States.

“This was going to be the capstone for this U.S. Attorney’s office efforts to fight white-collar crime. And instead of the big bang, this is a case that is hanging on by its fingernails on the fraud charges,” observed Hugh Totten, a Chicago-based criminal lawyer who monitored the case closely.

Given that U.S. prosecutors originally sought a jail term of between 24 to 35 years after his 2007 convictions on three counts of mail and wire fraud and one count of obstruction of justice – he wound up with 6½ years – it would seem reasonable to anticipate the federal judge won’t likely force Lord Black back to the Coleman Federal Correctional Complex to complete his term, as the U.S. government has strenuously urged.

Rather, some legal experts expect Judge St. Eve, who presided over the four-month criminal trial, to follow the guidelines set out in a pre-sentencing report by the U.S. Probation department, which recommends a term of between 33 to 41 months. If that happens, Lord Black can claim victory, since his lawyers have argued for time served based on the 29 months he’s already served plus a three-month credit for good behaviour.

“No way he’s going back to jail with that PSR [pre-sentencing report],” predicts Jacob S. Frenkel, a criminal lawyer and former U.S. attorney based in Potomac, MD. “There will be a lot of posturing and bluster, which will have no effect on the judge. The bottom line is that she has made up her mind and the hearing is to go through the motions to give him credit for time served and wrap this thing up as far as the court is concerned.”

Others, such as Chicago lawyer Andrew Stoltmann, disagree: “Conrad Black is heading back to serve the entirety of the rest of his term,” he wrote in an e-mail. “While U.S. District Judge Amy St. Eve has some discretion in overturning the ruling, Black has many factors working against him.”

Most expect there will be passionate arguments before the judge, but few surprises. Sentencing hearings are generally brief because most of the reasonings have been laid out in court submissions filed by both sides weeks ago.

If Judge St. Eve decides to release Lord Black from prison for time served, as his lawyers have requested, she could still attach any number of conditions, including probation time and fines. In that case, the Canadian-born media baron who famously relinquished his Canadian citizenship to become a British peer in 2001, would be arrested by the U.S. Immigration department and become subject to deportation proceeding....

In court filings, U.S. prosecutors have practically begged Judge St. Eve to send Lord Black, who once controlled the world’s third largest English-language newspaper empire including the National Post, back to Coleman to complete his 78-month sentence noting his defiance and lack of remorse.

Even after acknowledging the former businessman was a model prisoner, prosecutors still attempted to portray him as a haughty inmate unworthy of release by filing contradictory testimony from Coleman prison staff alleging Lord Black “demanded special treatment” and was a lax tutor, even though the same employees described him as “not intimidating or condescending” and “always polite and respectful” in prison progress reports and to the probation officer.

The unflattering depictions of Lord Black outlined in the sworn testimony from prison staff “are not allegations Black will want hanging over his head going into the re-sentencing,” said Mr. Frenkel, because the Supreme Court noted that Lord Black’s behaviour while in prison and on bail could be factored into re-sentencing.... To support his case for a full release, there are 18 letters from former prison inmates and staff espousing Lord Black’s positive contributions to prison life.

The Montreal-born businessman, who was released on bond last July pending his appeals, and three other Hollinger International Inc. executives were convicted in 2007 of misappropriating US$6.1-million in the form of non-competition payments. Lord Black was also found guilty of obstruction of justice for removing 13 boxes from his Toronto head office during the U.S. government’s investigation in 2005.

UPDATE As reported in this new post, Black ended up getting 42 months of imprisonment at his resentencing, and thus he now has 13 months left to serve in the federal pen.

June 24, 2011 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (5) | TrackBack

"Gaming the System: How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies"

Gaming_the_system-cover-full The title of this post is the title of a new report (available here) from the folks at The Justice Policy Institute. This press release provides background on the report:

Over the past 15 years, the number of people held in all prisons in the United States has increased by 49.6 percent, while private prison populations have increased by 353.7 percent, according to recent federal statistics.  Meanwhile, in 2010 alone, the Corrections Corporation of America (CCA) and the GEO Group, the two largest private prison companies, had combined revenues of $2.9 billion.  According to a report released [this week] by the Justice Policy Institute (JPI), not only have private prison companies benefitted from this increased incarceration, but they have helped fuel it.

Gaming the System: How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies, examines how private prison companies are able to wield influence over legislators and criminal justice policy, ultimately resulting in harsher criminal justice policies and the incarceration of more people.  The report notes a “triangle of influence” built on campaign contributions, lobbying and relationships with current and former elected and appointed officials.  Through this strategy, private prison companies have gained access to local, state, and federal policymakers and have back-channel influence to pass legislation that puts more people behind bars, adds to private prison populations and generates tremendous profits at U.S. taxpayers’ expense.

“For-profit companies exercise their political influence to protect their market share, which in the case of corporations like GEO Group and CCA primarily means the number of people locked up behind bars,” said Tracy Velázquez, executive director of JPI.  “We need to take a hard look at what the cost of this influence is, both to taxpayers and to the community as a whole, in terms of the policies being lobbied for and the outcomes for people put in private prisons.  That their lobbying and political contributions is funded by taxpayers, through their profits on government contracts, makes it all the more important that people understand the role of private prisons in our political system.”

Paul Ashton, principle author of Gaming the System, noted, “This report is built on concrete examples of the political strategies of private prison companies. From noting campaign donations, $835,514 to federal candidates and $6,092,331 to state-level candidates since 2000, to the proposed plan from Ohio Governor John Kasich to privatize five Ohio prisons followed by the appointment of a former CCA employee to run the Department of Rehabilitation and Corrections, Gaming the System shows that private prison companies’ interests lie in promoting their business through maintaining political relationships rather than saving taxpayer dollars and effectively ensuring public safety.”...

If states and the federal government are interested in providing cost-effective, proven public safety strategies, investments in private prison companies will not help achieve that goal.  Gaming the System includes a number of recommendations for criminal justice policies that are cost-effective and will improve public safety:

  • States and the federal government should look for real solutions to the problem of growing jail and prison populations.  A number of states are already utilizing innovative strategies for reducing the number of people behind bars in their state. Reducing the number of people entering the justice system, and the amount of time that they spend there, can lower prison populations, making private, for-profit prisons unnecessary, and improving public safety and the lives of individuals.
  • Invest in front-end treatment and services in the community, whether private or public.  Research shows that education, employment, drug treatment, health care, and the availability of affordable housing coincide with better outcomes for all people, whether involved in the criminal justice system or not.  Jurisdictions that spend more money on these services are likely to experience lower crime rates and lower incarceration rates.  An increase in spending on education, employment and other services not only would improve public safety, but also would enhance and enrich communities and individual life outcomes.
  • Additional research is needed to effectively evaluate the cost and recidivism reduction claims of the private prison industry.  With conflicting research on both the cost savings and recidivism reduction of private prisons, additional research is needed to determine the accuracy of such claims.  Moreover, a clearer dialogue surrounding the difficulties of comparative research between private and public facilities would also be beneficial in providing a better understanding of the implications of prison privatization.

June 24, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

June 23, 2011

Ron Paul and Barney Frank introduce bill to let states set pot policy

As explained in this CNN piece, a federal bill introduced on Thursday reveals that "Republican presidential candidate Ron Paul and outspoken Massachusetts Democrat Barney Frank want to get the federal government out of the marijuana regulation business."  Here is more:

The bill would allow the Feds to continue enforcing cross-border or inter-state smuggling, but states would set their own laws, and people could grow and sell marijuana in places that choose to make it legal.

The bill is, of course, a longshot. But making it a law isn't the whole point, according to Morgan Fox, communications manager at the Marijuana Policy Project. "A bill like this is going to get talked about quite a bit," Fox said.  "I think it will spark a strong debate in the media, and we hope to get some [House] floor time for it."

The bill is co-sponsored by Democratic Reps. John Conyers of Michigan, Steve Cohen of Tennessee, Jared Polis of Colorado and Barbara Lee of California.

The bill's introduction comes 40 years after the United States began its "war on drugs" and just a few days after former President Jimmy Carter wrote an op-ed in the New York Times titled "Call Off the Global Drug War."...  Meanwhile, Ron Paul's status as a declared candidate for the presidency is likely to bring attention to the bill.

Via google news, one can see that this story is getting lots of hits and already generating a buzz --sorry, I could not resist some wacky weed wordplay -- but this effective post at The Volokh Conspiracy reports that House Judiciary Committee Chairman Lamar Smith has already said his panel would not consider the bill.  I guess he is just another one of those big federal government Republicans.

Some recent related posts:

June 23, 2011 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack

Another take on the consequences of SCOTUS crack retroactivity work in Freeman

A thoughtful reader sent me and allowed me to post here his take on today's Freeman ruling by the Supreme Court (basics here, opinion here), which seeks to counter my first-cut, from-the-gut reaction that that because of the 4-1-4 split of the Justices "few other defendants will benefit from [Freeman's] win." Here is that take:

In Freeman v. U.S., (plurality opinion) (available here), the Supreme Court reversed the Sixth Circuit’s ruling that a defendant who entered into a Rule 11(c)(1)(C) plea agreement was ineligible for a reduction of sentence under 18 U.S.C. § 3582(c)(2) based on a retroactive amendment to the Sentencing Guidelines that lowered the Guideline range.

The plurality reasoned that because, even in cases where the sentence imposed varies from the Guideline range, a sentencing judge is required to consider the Guidelines when deciding whether to accept and impose the specific sentence agreed upon by the parties in an 11(c)(1)(C) plea, an 11(c)(1)(C) sentence is "based on" the Guidelines.  Because § 3582(c)(2) applies in cases when a sentence was "based on" a subsequently amended Guideline range, an 11(c)(1)(C) defendant is therefore eligible for § 3582(c)(2) relief.

[Note: Justice Sotomayor provided the decisive fifth vote in a separate concurrence, based on different grounds from the plurality opinion: Justice Sotomayor concluded that Freeman was entitled to § 3582(c)(2) relief because his plea agreement expressly provided that his sentence was based on the Guidelines.  Justice Sotomayor stated that in the future, "[n]othing prevents the Government from negotiating with a defendant to secure a waiver of his statutory right to seek sentence reduction under § 3582(c)(2), just as it often does with respect to a defendant’s rights to appeal and collaterally attack the conviction and sentence."  In the future, citing Marks v. U.S., 430 U.S. 188, 193 (1977), the government may invoke Justice Sotomayor’s concurrence (and her view that § 3582(c)(2) rights are waivable) as expressing Freeman’s holding, on the ground that her concurrence expressed the "narrowest grounds" for the decision.

The Supreme Court, however, has questioned MarksSee, e.g. Nichols v. U.S., 511 U.S. 738, 745 (1994) (declining to follow Marks’ approach).  The "narrowest ground" approach is arguably inapposite in cases like Freeman, where, as Justice Sotomayor’s concurrence states, the conclusions "differ as to the reason why," that is, the rationales for the plurality and the concurrence are not "nested" within one another like "Russian dolls."  See Note, Plurality Decisions in the Supreme Court of the United States, A Reexamination of the Marks Doctrine After Rapanos v. United States, 41 Suffolk U. L. Rev. 97, 113 (2007) (citing King v. Palmer, 950 F.2d 771, 781-82 (D.C. Cir. 1991) (en banc)).  Arguably, in cases like Freeman, "lower courts should treat plurality decisions as binding only for the result that a majority of the court would support based on their stated rationales." Id. at 130 (citing Rapanos v. U.S., 547 U.S. 715, 810 (2006) (Stevens, J., dissenting). In Freeman, the majority agreed only to reject the dissenters’ view that 11(c)(1)(C) defendants are categorically ineligible for § 3582(c)(2) relief.  Whether some of these defendants might be ineligible on the separate grounds stated by Justice Sotomayor (because there is no mention of Guidelines in their plea agreement, or because there is an express waiver of § 3582(c)(2) in their plea agreements) remains an open question.]

June 23, 2011 in Implementing retroactively new USSC crack guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Lengthy new article/study on the costs of California's capital system now available

Regular readers likely recall this post from earlier this week reporting on news reports of a forthcoming law review article that examined state, federal and local expenditures for California capital cases over three years and estimated that the additional costs of capital trials, enhanced security on death row and legal representation costs California's $184 million each year.

A helpful reader has now sent me this link to the now available full text of the 184-page article by Judge Arthur L. Alarcón and Paula M. Mitchell titled "Executing the Will of the Voters: A Roadmap to Mend or End the California Legislature's Multi-Billion-Dollar Death Penalty Debacle."  Here is the full abstract from the piece:

Since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions. The current backlog of death penalty cases is so severe that most of the 714 prisoners now on death row will wait well over 20 years before their cases are resolved. Many of these condemned inmates will thus languish on death row for decades, only to die of natural causes while still waiting for their cases to be resolved. Despite numerous warnings of the deterioration of California’s capital punishment system and its now imminent collapse, the Legislature has repeatedly failed to enact measures that would improve this death row deadlock.  At the same time, voters have continued to expand the death penalty through the direct voter initiative process to increase the number of death-eligible crimes.

This Article uncovers the true costs of administering the death penalty in California by tracing how much taxpayers are spending for death penalty trials versus non–death penalty trials and for costs incurred due to the delay from the initial sentence of death to the execution.  In addition, the Article examines how the voter initiative process has misled voters into agreeing to the wasteful expenditure of billions of dollars on a system that has been ineffective in carrying out punishment against those who commit the worst of crimes.  Our research reveals that in every proposition expanding the list of deatheligible crimes between 1978 and 2000, the information provided by the Legislative Analyst’s Office in the Voter Information Guides told voters that the fiscal impact of these initiatives would be “none,” “unknown,” “indeterminable,” or “minor.”  Relying, at least in part, on this information, Californians have used the voter initiative process to enact “tough on crime” laws that, without adequate funding from the Legislature to create an effective capital punishment system, have wasted immense taxpayer resources and created increasingly serious due process problems.

Finally, this Article analyzes corrective measures that the Legislature could take to reduce the death row backlog, and proposes several voter initiatives that California voters may wish to consider if the Legislature continues to ignore the problem.  It is the authors’ view that unless California voters want to tolerate the continued waste of billions of tax dollars on the state’s now-defunct death penalty system, they must either demand meaningful reforms to ensure that the system is administered in a fair and effective manner or, if they do not want to be taxed to fund the needed reforms, they must recognize that the only alternative is to abolish the death penalty and replace it with a sentence of life imprisonment without the possibility of parole.

Recent related post:

June 23, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Defendant barely wins in Freeman, as SCOTUS clarifies/complicates guideline retroactivity rules

The final big federal sentencing case on the Supreme Court docket this term is Freeman v. US concerning the eligibility of some defendants to get the retroactive benefit of the Sentencing Commission reducing guidelines ranges.  Today Freeman prevailed, though what seems like a 4-1-4 opinion in his favor likely means few other defendants will benefit from his victory.  Here are the basics coming from the start of the first opinion in Freeman:

JUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN join.

The Sentencing Reform Act of 1984, 18 U. S. C. §3551 et seq., calls for the creation of Sentencing Guidelines to inform judicial discretion in order to reduce unwarranted disparities in federal sentencing. The Act allows retro-active amendments to the Guidelines for cases where the Guidelines become a cause of inequality, not a bulwark against it. When a retroactive Guideline amendment is adopted, §3582(c)(2) permits defendants sentenced based on a sentencing range that has been modified to move for a reduced sentence.

The question here is whether defendants who enter into plea agreements that recommend a particular sentence as a condition of the guilty plea may be eligible for relief under §3582(c)(2). See Fed. R. Crim. Proc. 11(c)(1)(C) (authorizing such plea agreements). The Court of Appeals for the Sixth Circuit held that, barring a miscarriage of justice or mutual mistake, defendants who enter into 11(c)(1)(C) agreements cannot benefit from retroactive Guideline amendments.

Five Members of the Court agree that this judgment must be reversed. The Justices who join this plurality opinion conclude that the categorical bar enacted by the Court of Appeals finds no support in §3582(c)(2), Rule11(c)(1)(C), or the relevant Guidelines policy statements. In every case the judge must exercise discretion to impose an appropriate sentence. This discretion, in turn, is framed by the Guidelines. And the Guidelines must be consulted, in the regular course, whether the case is one in which the conviction was after a trial or after a plea,including a plea pursuant to an agreement that recommends a particular sentence. The district judge’s decision to impose a sentence may therefore be based on the Guide-lines even if the defendant agrees to plead guilty under Rule 11(c)(1)(C). Where the decision to impose a sentence is based on a range later subject to retroactive amendment, §3582(c)(2) permits a sentence reduction.

Section 3582(c)(2) empowers district judges to correct sentences that depend on frameworks that later prove un-justified. There is no reason to deny §3582(c)(2) relief to defendants who linger in prison pursuant to sentences that would not have been imposed but for a since-rejected, excessive range.

JUSTICE SOTOMAYOR would reverse the judgment on a different ground set out in the opinion concurring in the judgment. That opinion, like the dissent, would hold that sentences following 11(c)(1)(C) agreement are based on the agreement rather than the Guidelines, and therefore that § 3582(c)(2) relief is not available in the typical case.  But unlike the dissent she would permit the petitioner here to seek a sentence reduction because his plea agreement in express terms ties the recommended sentence to the Guidelines sentencing range.

June 23, 2011 in Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (38) | TrackBack

Defendant wins in Bullcoming, the latest (greatest?) SCOTUS Confrontation Clause case

In part because the Confrontation Clause has been deemed inapplicable at sentencing, I have not followed too closely the post-Crawford line of decisions on this facet of the Sixth Amendment.  Nevertheless, the line-up of Justices as well as the pro-criminal-defendant SCOTUS ruling today in Bullcoming v. New Mexico should interest anyone who follows closely modern criminal procedure issues.  First, here is the line up in the 5-4 ruling for the defendant:

GINSBURG, J., delivered the opinion of the Court, except as to Part IV and footnote 6. SCALIA, J., joined that opinion in full, SOTOMAYOR and KAGAN, JJ., joined as to all but Part IV, and THOMAS, J., joined as to all but Part IV and footnote 6.  SOTOMAYOR, J., filed an opinion concurring in part.  KENNEDY, J., filed a dissenting opinion, in which ROBERTS, C. J., and BREYER and ALITO, JJ., joined.

Now here is how Justice Ginsburg's opinion for the Court gets started:

In Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009), this Court held that a forensic laboratory report stating that a suspect substance was cocaine ranked as testimonial for purposes of the Sixth Amendment’s Confrontation Clause.  The report had been created specifically to serve as evidence in a criminal proceeding.  Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the statements made in the report.

In the case before us, petitioner Donald Bullcoming was arrested on charges of driving while intoxicated (DWI).  Principal evidence against Bullcoming was a forensic laboratory report certifying that Bullcoming’s blood alcohol concentration was well above the threshold for aggravated DWI.  At trial, the prosecution did not call as a witness the analyst who signed the certification. Instead, the State called another analyst who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test on Bullcoming’s blood sample.  The New Mexico Supreme Court determined that, although the blood-alcohol analysis was “testimonial,” the Confrontation Clause did not require the certifying analyst’s in-court testimony.  Instead, New Mexico’s high court held, live testimony of another analyst satisfied the constitutional requirements.

The question presented is whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification — made for the purpose of proving a particular fact — through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in thecertification.  We hold that surrogate testimony of that order does not meet the constitutional requirement.  The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.

I will be especially grateful for any and all comments explaining whether and how this ruling could possibly have some sentencing bite.

June 23, 2011 in Procedure and Proof at Sentencing | Permalink | Comments (14) | TrackBack

June 22, 2011

Federal habeas grant finds Ring problem in Florida death sentence

As reported in this new AP piece, in a habeas ruling from earlier this week, a "federal judge has declared that Florida's method of imposing the death penalty is unconstitutional because jurors are not required to make specific findings on the aggravating factors that increase a sentence from life in prison to death."  Here is more:

The ruling by U.S. District Judge Jose E. Martinez applies only to the case of a convicted murderer currently on Florida's Death Row, but legal experts say it will likely spark a series of challenges across the state in death cases.  They also say it could be used to seek stays of execution. "It could have a dramatic impact, a life or death impact," said Kendall Coffey, a former federal prosecutor now in private practice.  "It says that essential elements in criminal cases have to be found by a jury, not by a judge."

In Florida death penalty cases, jurors who voted to convict a defendant of murder are then asked whether to recommend death or life as punishment. The judge then gives "great weight" to the recommendation but is not required to follow it. The recommendation is by majority vote. But jurors are not asked to make specific decisions on aggravating factors necessary to impose death, such as whether it was a crime for money or was particularly heinous and cruel. Those particular rulings are left to the judge.

In his 94-page ruling Monday, Martinez said Florida's system violates a 2002 U.S. Supreme Court decision that voided Arizona's method of imposing death sentences.  That ruling, Martinez said, makes clear that jurors must determine which specific aggravating factors apply in each case. "The defendant has no way of knowing whether or not the jury found the same aggravating factors as the judge," Martinez wrote.  "Indeed, the judge, unaware of the aggravating factor or factors found by the jury, may find an aggravating circumstance that was not found by the jury."

Florida is the only state with this exact system, although many others have hybrids that involve both jury and judge.  Martinez said the Florida Supreme Court has not found that the state's method of imposing capital punishment violates the Constitution, even in light of the 2002 U.S. Supreme Court decision....

The ruling does not automatically void Florida law, but other judges could follow it if lawyers challenge the system around the state. There could also be attempts to modify jury instructions to comply with the decision. In addition, if the state appeals as is likely, a decision upholding Martinez's ruling by the 11th U.S. Circuit Court of Appeals would have the effect of striking down Florida's sentencing system in death cases, Coffey said.  The office of Attorney General Pam Bondi did not immediately comment on whether it would appeal.

A helpful reader forwarded me a copy of the lengthy habeas ruling in Evans v. McNeil, No. 2:08-cv-14402-JEM (S.D. Fla. June 20, 2011), which I have made available for downloading below. The Ring-related discussion begins on page 78 of the pdf, and the facts of the case and the reasoning of this opinion includes some nuances that may preclude every Florida capital defendant from benefiting from the ruling.  Nevertheless, almost a decade after the US Supreme Court's Ring ruling, it now appears that at least some Florida capital sentences are finally running into some Sixth Amendment difficulties.

Download Evans habeas grant

June 22, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Judge Davis laments drug war's damage and costs in concurrence requiring LWOP for druggie

A couple of helpful readers altered me to a notable concurring opinion authored by Judge Davis of the Fourth Circuit in US v. Gregg, No.10-4198 (4th Cir. July 17, 2011) (available here). Here are snippets from this opinion, which merits a full read:

The distinguished district judge was aghast that the now forty-year-old Tony Gregg would spend the rest of his life in federal prison for selling small amounts of crack cocaine over a period of several weeks out of a hotel room in a run-down section of Richmond...

[P]rior to trial, Gregg was offered a plea agreement for a twenty-year sentence; when he rejected the government’s offer, the government went all out for the life sentence found to be unjust by the district court. Of the government’s four non-law-enforcement witnesses at the one-day trial below, all four were women who were themselves, like Gregg, users and sellers of crack cocaine and heroin who worked with Gregg to sell crack cocaine.

Understandably, perhaps, to many, Gregg is not a sympathetic figure; they will think: he got what he deserved. To many others, perhaps, matters are not so clear. Indeed, many would say that Tony Gregg seems to be one more of the drug war’s “expendables.” See Nora V. Demleitner, “Collateral Damage”: No Re-Entry for Drug Offenders, 47 Vill. L. Rev. 1027, 1050 (2002).

This case presents familiar facts seen in courts across the country: a defendant addicted to narcotics selling narcotics in order to support his habit.  Unfortunately for Gregg and countless other poorly-educated, drug-dependant offenders, current drug prosecution and sentencing policy mandates that he spend the rest of his life in prison....

The mass incarceration of drug offenders persists into the second decade of the twenty-first century despite the fact that research consistently demonstrates that the current approach to combating illegal drug use and drug trafficking is a failure.... Even the U.S. drug czar, a position created by the Anti-Drug Abuse Act of 1988, admits the war on drugs is failing, stating that after 40 years and $1 trillion, “it has not been successful ... the concern about drugs and drug problems is, if anything, magnified, intensified.” Martha Mendoza, After 40 Years and $1 Trillion, Drug Use Is Rampant and Violence Pervasive, Associated Press, May 13, 2010.

I share the district judge’s dismay over the legallymandated sentence he must impose in this case. While the controlling legal principles require us to order the reimposition of a sentence of life without parole in this case, the time has long passed when policymakers should come to acknowledge the nation’s failed drug policy and to act on that acknowledgement.

As a nation, we are smart enough to do better.

June 22, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

DPIC releases new anti-DP report on 35th anniversary of Gregg ruling

Sblcover The Death Penalty Information Center has just released this big new report on the state of capital punishment in the US.  The report is titled "Struck By Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Re-instatement in 1976," and it seems to cover all of the modern hot topics surrounding the administration of the death penalty.  Here is the report's executive summary:

The United States Supreme Court approved the re-instatement of the death penalty 35 years ago on July 2, 1976.  Although the death penalty had earlier been held unconstitutional because of its arbitrary and unpredictable application, the Court was willing to sanction new systems that states had proposed to make capital punishment less like “being struck by lightning” and more like retribution for only the “worst of the worst” offenders.  The Court also deferred to the statesʼ judgment that the death penalty served the goals of retribution and deterrence.

After three and a half decades of experience under these revised statutes, the randomness of the system continues.  Many of the countryʼs constitutional experts and prominent legal organizations have concluded that effective reform is impossible and the practice should be ended.  In polls, jury verdicts and state legislative action, there is evidence of the American peopleʼs growing frustration with the death penalty.  A majority of the nine Justices who served on the Supreme Court in 1976 when the death penalty was approved eventually concluded the experiment had failed.

Four states have abolished the death penalty in the past four years, and nationwide executions and death sentences have been cut in half since 2000.  A review of state death penalty practices exposes a system in which an unpredictable few cases result in executions from among thousands of eligible cases.  Race, geography and the size of a countyʼs budget play a major role in who receives the ultimate punishment.  Many cases thought to embody the worst crimes and defendants are overturned on appeal and then assessed very differently the second time around at retrial.  Even these reversals depend significantly on the quality of the lawyers assigned and on who appointed the appellate judges reviewing the cases.  In such a haphazard process, the rationales of deterrence and retribution make little sense.

In 1976, the newly reformed death penalty was allowed to resume.  However, it has proved unworkable in practice. Keeping it in place, or attempting still more reform, would be enormously expensive, with little chance of improvement.  The constitution requires fairness not just in lofty words, but also in daily practice.  On that score, the death penalty has missed the mark.

June 22, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0) | TrackBack

Justice Department creates great new evidence-based criminal justice resource

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I am extremely pleased to see (thanks to this item at The Crime Report) that The U.S. Justice Department has created an important  new website, Crime Solutions.gov, to enable all of us to better assess the effectiveness of state and local criminal justice programming.  Here is more background vie The Crime Report:

The site, unveiled yesterday at the National Institute of Justice’s annual crime research conference near Washington, D.C., was billed by federal officials as a “single, credible, online resource to inform practitioners and policymakers about what works in criminal justice, juvenile justice, and crime victim services.”

Laurie Robinson, Assistant Attorney General for Justice Programs, started the project when she returned to government service in 2009.  A team of experts from her office and the Maryland-based private firm Development Services Group (DSG) assembled the database by reviewing academic studies that have reviewed hundreds of anticrime programs under accepted scientific standards.

Each program was classified in one of three categories: effective, promising, or no effects. Officials emphasized that the CrimeSolutions.gov site is a work in progress, with new evaluations added almost daily.  In the last week before the NIJ conference, the number listed jumped from 125 to 145.

The programs are divided into eight categories. As of yesterday, crime and crime prevention had the most evaluations (24) while drugs and substance abuse had the fewest (8).  Other categories are corrections and prisoner reentry, courts, forensics and technology, juvenile justice, law enforcement, and victims and victimization.

Many programs didn’t make the cut, either because they were judged ineffective or there wasn’t enough evidence to make a judgment.  Phelan Wyrick, an assistant to Robinson, said good but unproved programs would not have to make the list to qualify for federal funding.  “We must continue to support innovation,” he told the NIJ conference.

A few clicks over at Crime Solutions.gov already has me very impressed and very overwhelmed.  This FAQ page provides some more important background about this important new resource:

CrimeSolutions.gov is intended to be a central, reliable, and credible resource to help practitioners and policymakers understand what works in justice-related programs and practices.  Its purpose is to assist in practical decision making and program implementation by gathering information on specific justice-related programs and reviewing the existing evaluation research against standard criteria.

It is important to note the CrimeSolutions.gov Web site does not constitute an endorsement of particular programs, nor does it conduct original research. The programs reported upon favorably are being recognized for their accomplishments in support of the mission of the Office of Justice Programs (OJP).  Furthermore, it is not intended to replace or supersede informed judgment and/or innovation.  CrimeSolutions.gov recognizes that rigorous evaluation evidence is one of several factors to consider in justice programming, policy, and funding decisions.  OJP also recognizes the importance of encouraging and supporting innovative approaches that may not yet have extensive evidence of effectiveness.

June 22, 2011 in Data on sentencing, Detailed sentencing data, Purposes of Punishment and Sentencing | Permalink | Comments (15) | TrackBack

Texas executes murderer despite evidence suggesting mental retardation

As detailed in this Reuters article, "Texas executed on Tuesday a man convicted of fatally shooting two people and paralyzing a third near Houston in 1998, despite evidence that he was mentally disabled." Here is more:

Milton Mathis, 32, was sentenced in 1999, before the U.S. Supreme Court ruled it unconstitutional to execute inmates with mental disabilities. His supporters had been trying for years to argue that he should be spared. On Tuesday, a final plea to the Supreme Court to hear evidence of his mental disability was denied, and he was executed by lethal injection....

Mathis was the 23rd person executed in the United States this year and the sixth executed in Texas, the most active death penalty state in the nation. Shortly before he died, Mathis criticized the Texas death penalty as a "mass slaughter. The system has failed me. This is a miscarriage of justice," he said.... Mathis was convicted in September 1999 of opening fire on a home in Fort Bend County, west of Houston, and killing Travis Brown and Daniel Hibbard. [Melanie] Almaguer, then 15, was also shot in the head. Mathis also turned the gun on Almaguer's mother, who was in the home, but ran out of bullets, according to the state attorney general's office. He looted the home before setting it on fire, fled in Brown's car, and later told a fellow inmate that he wished he had "killed them all," according to the attorney general's office.

Most U.S. inmates with mental disabilities have been spared execution since the Supreme Court in 2002 declared it unconstitutional, said Richard Dieter, executive director of the Washington-based Death Penalty Information Center, which tracks capital punishment cases. Those who have been executed were usually cases in which the inmate's claim of mental disability was in dispute, including the Mathis case, he said....

Mathis, who had an eighth-grade education when he was convicted, has scored in the low 60s on several IQ tests -- including a 62 on a test administered by the state's prison system, according to an essay on the Stand Down Texas website by Mark White, a former Texas governor who opposed Mathis' execution. Stand Down Texas supports a death penalty moratorium in Texas. Psychology experts have routinely put the standard for mental disabilities around a 70 IQ and lower....

Texas has a particularly high burden of proof for mental disability, said Keith Hampton, an Austin defense attorney who specializes in death penalty cases. It takes more than IQ tests, he said. Attorneys also have to prove that the inmate had disabilities before age 18, and that he or she has shown a deficit in adaptive skills, such as reading and writing and following directions.

June 22, 2011 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (13) | TrackBack

Budget realities leading Ohio republicans to embrace progressive prison reforms

As detailed in this Columbus Dispatch piece, headlined "Senate prepares to vote on 'get-out-of-prison-sooner' bill: Measure would shorten inmates' sentences and save Ohio $78 million a year," the republicans in Ohio, who control all the political positions in the state, are on the verge of enacting massive sentencing and prison reforms.  Here are the details:

Ohio's criminal-sentencing overhaul is growing, with provisions added by an Ohio Senate panel yesterday requiring prisons to justify why they are keeping inmates 65 or older, provide certificates to help former inmates get jobs, and create an instant diversion program for shoplifters.

The Senate Judiciary Criminal Justice Committee voted 6-3 late last night to pass a substitute version of House Bill 86 loaded down with new amendments.  The bill will be considered by the full Senate today.

Savings are estimated at $78 million annually on prison costs, by diverting nonviolent offenders to community programs and giving inmates credit that would reduce their sentences for participating in treatment and training.  It would provide the option of treatment instead of prison for low-level, nonviolent drug offenders, allow release of inmates who have served at least 80 percent of their sentences, and equalize penalties for crack-cocaine and powder-cocaine possession.

Gov. John Kasich supports the main provisions of the bill, which he called "common-sense improvements that are badly needed."

One change approved last night would require the Ohio Department of Rehabilitation and Correction to issue a report justifying why prisoners who are 65 should still be kept in prison.  The state now houses 320 prisoners 65 or older and nearly 1,900 inmates 60 or older.

Other changes include a provision that would give inmates who have completed certain programs a "certificate of achievement and employability."  That would shield potential employers from on-the-job liability if they hire ex-offenders.

Sen. Tim Grendell, R-Chesterland, the committee chairman, said another change would permit a sort of instant diversion program for shoplifters.  They would not be arrested, but could arrange a community program with the store in lieu of jail time.  "This ought to help us some and save money in the process," he said.

June 22, 2011 in Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Former CEO of big mortgage firm gets 40 months on fraud conviction

This Reuters story, headlined "Ex-CEO of mortgage lender sentenced to prison," reports on one (of many?) criminal justice echoes of the housing crash.  Here are the basics:

The former chief executive of one of the largest mortgage firms to collapse in the U.S. housing crash was sentenced to more than three years in prison on Monday for his role in a fraud scheme dubbed "Plan B" that federal prosecutors say cost investors $1.5 billion.

Paul Allen, 55, the former CEO of Taylor, Bean & Whitaker, or TBW, pleaded guilty in April to one count of making false statements and one count of conspiring to commit bank and wire fraud.  The Justice Department said the fraud scheme contributed to the failure of TBW, which was one of the largest privately held U.S. mortgage lending companies, as well as the bankruptcy of Alabama-based Colonial Bank, which was one of the 50 largest U.S. banks.

Former TBW Chairman Lee Farkas, who was convicted on April 19 on 14 counts of fraud for his role in masterminding the scheme, is scheduled to be sentenced on June 27....

Allen's co-conspirator Sean Ragland, a 37-year-old former senior financial analyst at TBW, was also sentenced today by Judge Leonie Brinkema to three months in prison.  Four other senior officials with TBW and Colonial Bank have also been sentenced to time in prison ranging from three months to eight years for their role in the fraud.

June 22, 2011 in Offense Characteristics, White-collar sentencing | Permalink | Comments (9) | TrackBack

June 21, 2011

Desperate sick man commits $1 bank robbery to get health care in prison

Throughout the modern health care reform debates, I have often joked with students that the United States has long had a single-payer health-care system for all persons in every jurisdiction, but one needs to commit a serious crime in order to get admitted to this (prison-based) single-payer system.  This joke has a serious side through this remarkable local story from North Carolina headlined "Bank robber planned crime and punishment."  Here are the details:

James Richard Verone woke up June 9 with a sense of anticipation. He took a shower. Ironed his shirt. Hailed a cab. Then robbed a bank.

He wasn’t especially nervous. If anything, Verone said he was excited to finally execute his plan to gain access to free medical care. “I prepared myself for this,” Verone said from behind a thick glass window in the Gaston County Jail Thursday morning. Verone spoke calmly about the road that led him to a jail cell he shares with a young man arrested for stealing computers....

Until last week Verone had never been in trouble with the law. Now he hopes to be booked as a felon and held in prison where he can be treated for several physical afflictions.

Verone worked for Coca-Cola for 17 years. He prided himself on keeping his nose to the grindstone. Don’t make enemies. Sell the product. Make your deliveries and stick to your schedule. When his career as a cola delivery man ended some three years ago, Verone was knocked out of his comfort zone.... Not his first choice, Verone became a convenience store clerk. But the bending, standing and lifting were too much for him. The Gastonia man’s back ached; problems with his left foot caused him to limp. His knuckles swelled from arthritis, and carpal tunnel syndrome made daily tasks difficult. Then he noticed a protrusion on his chest.

Strapped for cash, Verone looked into filing for disability. He applied for early Social Security. The only thing Verone qualified for was food stamps. The extra money helped, but he felt desperate. He needed to get medical attention, and he refused to be a burden on his sister and brothers. “The pain was beyond the tolerance that I could accept,” he said. “I kind of hit a brick wall with everything.”

A couple of months ago Verone started weighing his options. He considered turning to a homeless shelter and seeking medical help through charitable organizations. Then he had another idea: commit a crime and get set up with a place to stay, food and doctors.

He started planning. As his bank account depleted and the day of execution got closer, Verone sold and donated his furniture. He paid his last month’s rent and gave his notice. He moved into the Hampton Inn for the last couple of days. Then on June 9 he followed his typical morning routine of getting ready for the day. He took a cab down New Hope Road and picked a bank at random — RBC Bank.

Verone didn’t want to scare anyone. He executed the robbery the most passive way he knew how. He handed the teller a note demanding one dollar, and medical attention. “I didn’t have any fears,” said Verone. “I told the teller that I would sit over here and wait for police.”

The teller, however, did have some fears even though Verone never showed a weapon. Her blood pressure shot up and once Verone was handcuffed by police, the teller was taken to Gaston Memorial Hospital to be checked out. Verone said he was sorry for causing the woman any pain....

Verone says he’s not a political man. But he has a lot to say on the subject of socialized medical care. He suspects he wouldn’t be talking to a reporter through a metal screen wearing an orange jumpsuit if such an option were available in the U.S....

The man has high hopes with his recent incarceration. He has seen several nurses and has an appointment with a doctor Friday. The ideal scenario would include back and foot surgery and a diagnosis and treatment of the protrusion on his chest, he said. He would serve a few years in prison and get out in time to collect Social Security and move to the beach.

Because he only demanded $1, he was charged with larceny from a person. Still a felony, the count doesn’t carry as much jail time as bank robbery. The bearded, gray-haired man plans to represent himself in court. He’s trying not to get too confident about his knowledge of the legal system. He just wants to prepare a statement for the judge and then take whatever active sentence he is given. Verone is considering an ultimatum if the penalty isn’t great enough, he said. The crime will happen again.

The day Verone set out to commit his first felony, he mailed a letter to The Gazette. He listed the return address as the Gaston County Jail. “When you receive this a bank robbery will have been committed by me. This robbery is being committed by me for one dollar,” he wrote. “I am of sound mind but not so much sound body.”

Verone wanted to talk to a reporter to make sure people knew why he turned to crime. He figured he had nothing to lose. “I knew that a felony would not hurt me. I cannot work anymore,” he said. “That felony is going to hurt my reputation.”

June 21, 2011 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (40) | TrackBack