July 19, 2011
Seeking information on large number “other government-sponsored departures” in federal child pornography cases
Among my projects for this summer is to try to better understand just how most federal child pornography cases are process and sentenced. An early bit of data-mining with the help of an able research assistant prompts the request/inquiry in the title of this post. Specifically, I am curious about the stories/reasons surrounding one notable data point from the US Sentencing Commission, namely the significant number of child porn cases involving so-called "other" government-sponsored downward departures.
As federal sentencing practitioners know, the vast majority of downward departures recommended by federal prosecutors stem from early pleas in "fast-track" districts under § 5K3.1 or from because a defendant provided "substantial assistance" and benefitted from a motion under § 5K1.1. But according to FY 2010 data from the USSC, zero child porn defendants got a fast-track break and only 57 of 1,886 child pornography cases (3%) involved a substantial-assistance downward departure.
But, these same FY 2010 USSC data document a comparative large number “other government-sponsored departures”: over 10% of child pornography cases in FY 2010 (195 cases out 1,886) involved a below-guideline sentence based on some "other" government-sponsored departure. (This represents roughly triple the number of such departures in all other cases in which only about 3.5% of dispositions involved an "other" government-sponsored downward departure.) Moveover, it appear that a trend toward regular use of "other government-sponsored [downward] departures" in child porn cases is picking up speed: in the USSC data for the first half of FY 2011, we see the government has sponsored "other" downward departures in nearly 15% of all cases (132 of 911 total cases).
Notably, Table 25 of the USSC 2010 Sourcebook of Federal Sentencing Statistics available here compiles the reasons given by sentencing courts for downward departures from the guideline range. The Commission makes no table publicly available reporting reasons given by the government for sponsoring an "other" downward departure. I asked my research assistant to see if cases reported on Lexis and Westlaw provide any qualitative information about these departures, but the online databases provide little insight on just when the government has sponsored a downward departure or the specific factors motivating the prosecutor to sponsor these types of departures.
These data and realities prompt a range of follow-up questions. I wonder if there any internal guidelines (or external transparency) concerning this growing group of cases. I wonder if prosecutors in certain districts or circuits use these kinds of "other" government-sponsored downward departures more than others. I wonder if the USSC can effectively identify and report (and codify) the reasons most often given for these kinds of departures. I wonder if this trend will continue and expand to other kinds of cases.
I could go on and on, but for now I hope I have with this post effectively explained the phenomenon I am trying to better understand. I also hope at least a few federal prosecutors and/or defense attorneys may with experiences with these kinds of departures may be able to help me understand just what is now often going on in these cases.
July 19, 2011 in Booker in district courts, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack
"No death penalty for 17-year-old accused of killing parents, partying"
The title of this post is the headline of this press report on the constitutional sentencing limits on the punishment that can be received by an already notorious teenage murder suspect. Here are the details of what is the latest high-profile Florida crime (largely because of how the defendant apparently "celebrated" killing his parents):
Because of his age, 17-year-old Tyler Hadley will not face the death penalty if he’s convicted in the brutal slaying of his parents, officials with the State Attorney’s Office confirmed Tuesday. If he's eventually convicted ... Hadley could be ordered to serve a maximum penalty of life in prison.
Hadley, the Port St. Lucie teen accused of posting an invitation to a party on Facebook, then killing his parents with a hammer, made his first appearance before a judge Tuesday morning.
Chief Assistant State Attorney Tom Bakkedahl said afterwards that the state's ultimate punishment can't be considered here because several years ago the U.S. Supreme Court determined "it would be cruel and unusual to subject minors to the death penalty."
"It’s simply off the table; it’s not a viable option," Bakkedahl said Tuesday. "Despite the fact that the case may otherwise in all respects warrant the death penalty, we are prohibited from seeking it as a result of him being approximately six-months short of his 18th birthday."...
Police accuse Hadley of killing his parents Blake and Mary Jo Hadley. Their bodies were found in their locked bedroom in the 300 block of Northeast Granduer Avenue on Sunday morning. Hadley was initially arrested as a juvenile, but Monday he was charged as an adult of two counts of 2nd-degree murder with a weapon and is being held on no bond at the St. Lucie County jail....
Bakkedahl, who was attending the Hadley autopsies at the Medical Examiner’s office in Fort Pierce, said state law requires the case be presented to a grand jury in order to seek first-degree murder charges.
Based on the criminal investigation conducted by Port St. Lucie police, Bakkedahl said evidence gathered supports charges of first-degree murder. "I think it’s going to be a clear first-degree murder case," he said. "The only difference between this and any other first-degree murder case is as a result of his age, he does not face the prospect of the death penalty."...
Early Sunday morning, Port St. Lucie police received an anonymous tip indicating a 17-year-old might have killed his parents and the bodies had been in the home during a party attended by as many as 60 people. Police went to the home about 4:20 a.m. Sunday. There police found a hammer between the bodies of Mary Jo Hadley, 47, and 54-year-old Blake Hadley. Tyler Hadley was arrested late Sunday....
"It was a merciless killing. It was brutal and the Facebook invitation — a party to have your friends and 40 to 60 people come over — I think speaks for itself," Port St. Lucie police Capt. Don Kryak said, standing at the scene Monday. "The blunt force trauma to the head and torso with a 22-inch framing hammer can effect a considerable amount of injury."
Police believe Tyler Hadley acted alone, but officials don't know a motive. The former St. Lucie West Centennial High School student made no incriminating statements.
Kryak said the Facebook party invitation was posted about 1:15 p.m. or 1:30 p.m. Saturday — before the homicides occurred. Investigators suspect Tyler Hadley's mother was killed first, and then his father, and that the slayings happened outside the master bedroom door of the single-story home in the 300 block of Northeast Granduer Avenue.
In addition to providing a high-profile example of the impact of the Supreme Court's Roper limit on the application of the death penalty, I can imagine this disturbing case having some indirect impact on post-Graham legislative and litigation efforts to prevent LWOP sentences for even juvenile killers.
Split Ninth Circuit panel reverses conviction based on online threats to then-candidate Barack Obama
Though not exactly a sentencing decision, I suspect readers of this blog will be interested in a split opinion from the Ninth Circuit today in US v. Bagdasarian, No. 09-5052 (9th Cir. July 19, 2011) (available here). Here is part of the start of the majority opinion in Bagdasarian, which was authored by Judge Reinhardt and joined by Chief Judge Kozinski:
Here, we review a district court’s conviction under 18 U.S.C. § 879(a)(3), which makes it a felony to threaten to kill or do bodily harm to a major presidential candidate. The defendant Walter Bagdasarian, an especially unpleasant fellow, was found guilty on two counts of making the following statements on an online message board two weeks before the presidential election: (1) “Re: Obama fk the niggar, he will have a 50 cal in the head soon” and (2) “shoot the nig.” These statements are particularly repugnant because they directly encourage violence. We nevertheless hold that neither of them constitutes an offense within the meaning of the threat statute under which Bagdasarian was convicted.
Here is the start of the partial dissenting opinion in Bagdasarian, per Judge Wardlaw:
I concur fully with the majority’s analysis of the law of “true threats.” The First Amendment prohibits the criminalization of pure speech unless the government proves that the speaker specifically intended to threaten. Thus, in every threats case the Constitution requires that the subjective test is met. Virginia v. Black, 538 U.S. 343 (2003). In this case, the statute at issue, 18 U.S.C. § 879(a)(3), also requires that a reasonable person would foresee that his statement would be perceived as a threat to harm a presidential candidate. Because there is sufficient evidence supporting a finding of objective intent, Jackson v. Virginia, 443 U.S. 307, 319 (1979), and because even under the heightened standard of review that we apply to constitutional facts, Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1070 (9th Cir. 2002) (en banc), the subjective intent requirement is also met, I conclude there is sufficient evidence to find Mr. Bagdasarian guilty of threatening harm against then-presidential candidate Barack Obama.
Are there First Amendment problems with California officials blocking media access to all hunger-striking prisoners?
The question in the title of this post is prompted by this new Los Angeles Times piece headlined "Prisoners' hunger strike in its third week." Here is the parts of this report prompting my inquiry:
More than 400 inmates at four California prisons are in the third week of a hunger strike to protest long, punitive stays in isolation cells.
Prison officials, who refuse to allow reporters into the institutions to interview the strikers, said 49 inmates who have lost at least 10 pounds each are "being monitored closely," including seven at Pelican Bay, the maximum-security prison near the Oregon border where the hunger strike began.
An inmate at the state prison in Tehachapi in Central California has lost 29 pounds, according to Nancy Kincaid, spokeswoman for the court-appointed receiver in charge of prison healthcare.
Inmate advocates say thousands of inmates have joined the strike, which began July 1. Many are beginning to show dramatic weight loss and collapse with the early signs of starvation, they say. Dozens have been sent to prison infirmaries because of irregular heartbeats and fainting, according to a statement issued Monday by a group calling itself California Prison Hunger Strike Solidarity, which represents attorneys and family members of inmates. "Most have lost 20-35 pounds," the statement said....
Despite repeated assurances that the situation is under control, the California Department of Corrections and Rehabilitation refused The Times' request to visit and interview striking inmates.
"At this time, we are not allowing media into the prison due to security and safety issues," prison spokesman Oscar Hidalgo said in an email. "This hunger strike signifies a disruption in normal operation of Pelican Bay and our operations staff are focused completely on resolving this issue."...
The inmates are protesting lengthy stays in Security Housing Units, known as prisons within the prison, where they are sent for violating rules. They are typically kept alone in their cells for 22 hours a day, allowed out for medical visits and for exercise in individual wire cages on the prison yard.
I know that the Supreme Court has repeatedly said that prisoners First Amendment rights are have significantly limited while they are behind bars, but these rights are not completely extinguished. In addition, I would think the traditional media might be able to assert some of its own First Amendment rights to try to get access to at least a few of the hunger-striking prisoners. Legitimate safety and security issues likely do not justify restricting access to every one of the hundreds of prisoners involved in this hunger strike.
Any free speech experts out there have any wisdom on this front?
Recent related posts concerning this hunger strike in California prisons:
- Can a hunger strike by state prisoners in SHU have an impact?
- Hunger strike among California prisoners growing
- "Barbarous Confinement"
"Changing Lives Through Literature: Bibliotherapy and Recidivism Among Probationers"
The title of this post is the title of this notable new piece by Russell Schutt now available via SSRN. Here is the abstract:
Although probation is the most common correctional disposition in the United States, research indicates that standard probation has little to no effect on recidivism rates. However, a growing body of evidence indicates that enhanced probation programs can reduce the likelihood of additional criminal offending. This paper examines a bibliotherapy program that is designed to reduce criminal offending and has been adopted in at least six states. Called Changing Lives Through Literature, the program reduces probation sentences in exchange for participation in a small discussion focused on a book and including probation officers and judges as well as probationers.
A limited multi-method qualitative study was used to investigate program process and a longitudinal probation database containing offense incidents was used to identify program effect on recidivism. Program participants (673) in five jurisdictions were compared to a comparison sample of 1,574 probationers in the same jurisdictions. The process analysis indicated that many program participants experienced the program as transformative. The impact analysis indicates a significant reduction in the rate of arrests before and after program participation as well as a significant decline in the maximum severity of the offense charged for those who were rearrested. Regression analysis indicates that these declines were independent of background factors, drug use, and years of criminal history and that they were particularly pronounced for drug users and those who were older. These results suggest the importance of a focus in enhanced probation programs on cognitive change and establishing new social relations.
July 18, 2011
A (justifiably) sharp reaction to AG Holder's new position on FSA crack pipeline cases
As set out in this post from Friday, I was very pleased to learn that Attorney General Eric Holder had sent a two-page memo to all federal prosecutors explaining that he now, finally, believed the FSA's new statutory sentencing terms should apply to all defendants sentenced after the effective date of the FSA. I also expressed my disappointment that the Justice Department argued a contrary (and, in my view, deeply misguided) position in courts around the nation for nearly a year. I thereafter received a sharp email from Dan Stiller, a Wisconsin federal public defender, which he has allowed me to reprint here in full:
The celebration of the Holder memo announcing the AG's flip-flop is justified but, thus far, short-sighted. The position taken in the memo is curative but only to a point. For 11 months now, AUSAs from coast-to-coast have, at the AG's command, stood before federal courts, arguing an arcane constitutional provision as a means of narrowing the FSA's reach. As a result, hundreds of defendants over those 11 months have been sentenced to no-longer applicable mandatory minimums.
Worse, the AG's position over those 11 months has resulted in law -- bad law -- being made and the AG's change-of-heart doesn't (and shouldn't) change the recent jurisprudence. Here in the Seventh Circuit, the court's stated reason for declining to apply the FSA to pre-enactment conduct being sentenced post-enactment was not "because such is the Government's position." Instead, the Seventh Circuit, acting upon the Government's now-abandoned suggestion, concluded that the savings clause precludes the FSA's application to pre-enactment conduct. The AG's flip-flop can't, to borrow Judge Walton's phrase from the Clemens trial, unring the relevant bell.
So while we celebrate the Holder memo, I fear the plight of my 170-gram pre-enactment client who appears for sentencing on Wednesday before a district court within the Seventh Circuit. While I will be waiving the Holder memo in the direction of the bench, I fear that the judge will waive the Seventh Circuit's decision in Fisher back at me. If so, my client will be sentenced to a defunct mandatory minimum that is nearly double the low-end of his post-enactment guideline range. So forgive me if my celebration of the Holder memo is muted.
Some prior posts on this FSA pipeline issue:
- Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
- Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
- Adding my two cents concerning application of the FSA to pending cases
- A few more thoughts on applying the FSA to not-yet-sentenced defendants
- New USDC opinion applying new FSA law to not-yet-sentenced defendants
- WSJ notes dispute over application of FSA to pending cases
- A (partial) account of deep split over application of FSA's new statutory terms to pipeline cases
- Seventh Circuit rejects FSA's application to defendants sentenced after it changed crack statutes
- Dissenting from denial of en banc review, Judge Williams makes strongest case for applying FSA to pipeline cases
- First Circuit affirms Douglas, holding lower FSA crack minimums apply in pipeline cases
- Eleventh Circuit panel rules FSA's lower crack terms apply to defendants sentenced after enactment
- Only a year late, AG Holder sees light and reverses course on FSA pipeline sentencing issue
Perhaps the new Google+ service should promise to keep probation officers out
The silly (tech-savvy?) title of this post is prompted in part by the new Google+ service seeking to complete with Facebook, along with this lengthy effective piece from the Louisville Courier-Journal which is headlined "Busted by Facebook: Some on probation learn the hard way that online posts can backfire." Here are excerpts from the piece:
If you don't want to do the time, stay offline. Or at the very least, don't “friend” your probation officer.
Convicted of possessing methamphetamine and Ecstasy, Scott W. Roby learned that the hard way. The Louisville man had his probation revoked this month — and was sentenced to two years in prison — in part for violating conditions that required him to stay alcohol-free and out of bars and liquor stores.
Roby had invited his probation officer to be his friend on Facebook, then Roby posted pictures of himself drinking — including one in which he was holding a beer while posed next to “Buddy Bat,” the mascot for the Louisville Bats, said prosecutor Dinah Koehler. In another Facebook post, according to court records, Roby asked: “Anyone wanna go get smashed tonight one last time before the end of the Earth?”
Judges, prosecutors, defense attorneys and the Kentucky Department of Corrections say that with increasing regularity, offenders on probation are losing their freedom or incurring other sanctions after posting pictures online of themselves clubbing, using “beer bongs,” posing with firearms or bragging about out-of-town trips they've made without their probation officer's permission....
Kentucky is not the only place where offenders are getting kicked off probation for implicating themselves online.
In Connecticut, according to press accounts, a woman convicted of killing a teenager while driving drunk had three years added to her sentence in 2009, in part because she was shown posing with alcohol in virtually every picture on her Facebook page — “worshipping at the altar of alcohol, debauchery and lewd behavior,” a prosecutor said.
The ABA Journal recently reported that the first thing some criminal-defense lawyers tell clients now is to shut down their Facebook accounts....
Civil libertarians seem to have no problem with corrections officials monitoring social- media sites. “To the extent individuals voluntarily post information on social-networking sites that are accessible to others, the use of that information to establish a violation of probation or parole is likely to withstand any claims of invasion of privacy by the poster,” Bill Sharp, a staff attorney for the ACLU of Kentucky, said in an email.
He added, however, that courts must be careful to verify the defendant really was the poster. He cited a recent decision in which the Maryland Supreme Court held that a judge improperly admitted information from a social-networking site where the only evidence that the page belonged to a witness was that it contained his birth date and photograph.
"Colorado inmate sues prison for saving his life"
Convicted murderer Daniel Self has sued Sterling Correctional Facility, claiming that prison guards disregarded a do-not-resuscitate directive when they saved his life. It's not that he isn't grateful, he said. That's not even the point.
"I've been wrongfully convicted and called a baby-killer. Death would be welcome relief," Self said during an interview in a concrete visitor's room rimmed with rolls of razor wire. "Even if you die, they drag your ass back to prison."
From the 54-year-old's perspective, damages in his case are accruing "a million dollars" every day that he must live in the hell that is prison. "Maybe it's a million dollars a minute," he said.
Katherine Sanguinetti, spokeswoman for the Colorado Department of Corrections, said the state has not been served with Self's lawsuit and that she could not comment about the case because it is in litigation.
Self's attorney, Brett Lampiasi, recently filed the suit in U.S. District Court in Denver, claiming prison officials were deliberately indifferent to Self's right to refuse medical treatment.
Self's plight, he said, became more intolerable after he broke his wrist in a fall from his bunk and doctors botched an operation, leaving him in constant pain with a deformed wrist, the suit says. He went eight months before corrective surgery was performed, the suit claims, and he was not given prescribed pain medications.
Before he went to prison, Self lived in Colorado Springs and set up lighting for live band performances at nightclubs. He was convicted of fatally shooting his girlfriend, Leah Kathleen Gee, 24, in March 2003. Gee was pregnant. He claims that she shot herself.
New research shows positive outcomes from drug court programs
Via an email from the folks at the Center for Court Innovation, I have learned of important new research finding that drug courts are often successful at reducing substance abuse and crime. Here is an excerpt from the email describing this new research:
Researchers at the Urban Institute, the Center for Court Innovation, and RTI International have recently completed perhaps the most ambitious study of drug courts to date. Funded by the National Institute of Justice, the five-year multi-site study compared participants in 23 drug courts in seven states to similar defendants who went through conventional case processing. The results offer vivid evidence that drug courts are effective at reducing both substance abuse and crime.
Among other findings, the study documented that drug court participants were one-third less likely to report using drugs 18 months after their enrollment in the program. And they were responsible for less than half as many criminal acts as the comparison group after 18 months. Largely because of these reductions in criminal behavior, drug courts ended up saving an estimated $5,680 per participant — cost savings that closely resemble those found in previous studies in California and Washington State.
In examining why drug courts have succeeded, the evaluation focused in particular on the role of the judge and the value of procedural fairness. The fact that drug court participants generally had more favorable perceptions of the judge than the comparison group was among the most important factors explaining why drug courts reduced drug use and crime.
The title of this post is the headline of this new op-ed in the New York Times. Here are excerpts:
More than 1,700 prisoners in California, many of whom are in maximum isolation units, have gone on a hunger strike. The protest began with inmates in the Security Housing Unit at Pelican Bay State Prison. How they have managed to communicate with each other is anyone’s guess — but their protest is everyone’s concern. Many of these prisoners have been sent to virtually total isolation and enforced idleness for no crime, not even for alleged infractions of prison regulations. Their isolation, which can last for decades, is often not explicitly disciplinary, and therefore not subject to court oversight. Their treatment is simply a matter of administrative convenience.
Solitary confinement has been transmuted from an occasional tool of discipline into a widespread form of preventive detention. The Supreme Court, over the last two decades, has whittled steadily away at the rights of inmates, surrendering to prison administrators virtually all control over what is done to those held in “administrative segregation.” Since it is not defined as punishment for a crime, it does not fall under “cruel and unusual punishment,” the reasoning goes....
Officials at Pelican Bay, in Northern California, claim that those incarcerated in the Security Housing Unit are “the worst of the worst.” Yet often it is the most vulnerable, especially the mentally ill, not the most violent, who end up in indefinite isolation. Placement is haphazard and arbitrary; it focuses on those perceived as troublemakers or simply disliked by correctional officers and, most of all, alleged gang members. Often, the decisions are not based on evidence. And before the inmates are released from the barbarity of 22-hour-a-day isolation into normal prison conditions (themselves shameful) they are often expected to “debrief,” or spill the beans on other gang members....
Hunger strikes are the only weapon these prisoners have left. Legal avenues are closed. Communication with the outside world, even with family members, is so restricted as to be meaningless. Possessions — paper and pencil, reading matter, photos of family members, even hand-drawn pictures — are removed. (They could contain coded messages between gang members, we are told, or their loss may persuade the inmates to snitch when every other deprivation has failed.)...
Do we find our ethics by forcing prisoners to live in what Judge Henderson described as the setting of “senseless suffering” and “wretched misery”? Maybe our reaction to hunger strikes should involve some self-reflection. Not allowing inmates to choose death as an escape from a murderous fate or as a protest against continued degradation depends, as we will see when doctors come to make their judgment calls, on the skilled manipulation of techniques that are indistinguishable from torture. Maybe one way to react to prisoners whose only reaction to bestial treatment is to starve themselves to death might be to do the unthinkable — to treat them like human beings.
Recent related posts:
- Can a hunger strike by state prisoners in SHU have an impact?
- Hunger strike among California prisoners growing
July 17, 2011
"Man charged with DUI after winning demolition derby"
The title of this post is the headline of this amusing local article from Kentucky sent my way by a helpful reader. Here are the specifics:
Moments after winning the demolition derby at the Jessamine County Fair Wednesday night, a man ended up being taken to jail. Nicholasville Police say 36-year-old David Warner was drunk, so they charged him with DUI.
Police say during the demolition derby itself, they began receiving complaints about Warner, claiming he was under the influence. As soon as the derby was over, police say they approached Warner as he got out of his car.
Police say Warner was staggering, and having trouble standing up straight. Police then gave Warner a sobriety test. Officers said he was clearly drunk. Warner was immediately placed under arrest and charged with DUI....
Warner talked to NEWSFIRST Thursday afternoon saying he was unfairly treated, and called the charge ridiculous. "I mean, I'm not denying I wasn't drinking by no means, but I was not drunk. I was under the limit," said David Warner.
Warner claims he drank a few beers before hitting the track, to "loosen me up," but he said it wasn't enough to warrant a DUI. "I'm not perfect, but this has gone too far, and I will fight it," he said.
Fair officials say they're discussing their options. That could include stripping Warner of his trophy and prize money.
New ACLU report claims California's death penalty is already dead
The ACLU of Northern California has released this notable new report on the Golden State's death penalty system. The report his titled, "California's Death Penalty is Dead: Anatomy of a Failure," and here is part of the executive summary:
California’s death penalty is dead. Prosecutors, legislators and taxpayers are turning to permanent imprisonment with no chance of parole as evidence grows that the system is costly, risky, and dangerous to public safety. New polls also indicate that voters favor replacing the death penalty with life in prison without the possibility of parole, with a requirement for work and restitution paid to the Victims’ Compensation Fund.
Most significantly, only three death sentences were handed down in California from January to June 2011, compared with the same period last year when there were 13. This is the lowest number of new death sentences in a six month period since the death penalty was reinstated in 1978, and a clear indicator that district attorneys and jurors across the state are turning away from the death penalty. On average, 49% of death sentences are decided in the first six months of the year. This means that California may be on track for a total of less than 10 death sentences in 2011 -- the lowest number in 33 years.
Three other related developments reveal a system in total collapse:
California has not executed anyone since 2006 and there is no reason to believe that executions will ever resume.....
Death penalty promoters have been snubbed at the ballot box....
Death penalty costs are extraordinary and detrimental to public safety at a time of economic crisis.
Some recent related posts:
- "California's idea of the death penalty is to bore them to death"
- California legislative panel advances proposal to put state DP repeal on 2012 ballot
- Will cost arguments convince California voters to ditch the death penalty in 2012?