August 13, 2011
Michigan judge now assailed for sentencing toughness on drunk drivers
Regular readers may recall the buzz and interesting debates surrounding drunk driving sentences in Michigan late last month in the run-up and aftermath of ESPN commentator Jalen Rose's state sentencing on this offense. This new piece from the Detroit Free Press, which is headlined "Oakland County judge challenged on drunken-driving jail sentences," reports on an interesting epilogue to the story:
A Bloomfield Hills attorney and a Wayne State University law professor are challenging 48th District Judge Kimberly Small's policy of sending first-time drunken drivers to jail, saying she is violating the defendants' constitutional rights and should be barred from hearing such cases.
In a motion filed Wednesday in 48th District Court in Bloomfield Township, attorney Robert Larin and professor Kenneth Mogill argued that Small violates the constitutional rights of defendants by sentencing almost all first-time drunken drivers to jail, often for weeks.
Small, the motion says, is legislating from the bench and is creating mandatory jail time when Michigan law does not require it. Larin and Mogill argue that she should disqualify herself from hearing the cases because she has made public statements showing what they say is a deep bias on drunken-driving cases.
The motion is filed on behalf of one of Larin's clients, Thomas Cygan, a 67-year-old West Bloomfield man who was recently arrested for the first time on charges of operating while intoxicated. The case is assigned to Small....
Experts said the motion creates an interesting legal question. "There are arguments on both sides," said University of Michigan law professor Eve Brensike Primus. "If a judge is willing to impose a sentence within the statutory limits, then perhaps that is within the judge's province, but if they are compromising fundamental fairness and individual sentencing, that can become problematic."
Larin said he filed the motion "on behalf of anybody charged with a first offense at present, in the past, or in the future." "I have nothing against Judge Small, but it is time this matter is resolved in the courts," he said.
Small's sentencing practices received national attention in recent weeks. On July 27, she sentenced former NBA basketball player Jalen Rose to 20 days in the Oakland County Jail following his arrest in March. He is expected to be released Aug. 18.
A Free Press review last month of drunken-driving sentences in metro Detroit and nationwide found Small exceeds most judges when sentencing first-time offenders. "We have to decide if we're going to get serious about this or not," she told the Free Press for the article. Under Michigan law, first-time drunken driving is a maximum 93-day misdemeanor, but there is no minimum mandatory jail time.
The motion filed by Larin and Mogill first will be heard by Small. If she denies it, they will argue it before Marc Barron, chief judge of the district court. If he also denies it, the case goes to circuit court and can be appealed to the court of appeals and then to the state Supreme Court.
Defense attorney Steve Fishman, who has handled a variety of high-profile cases in metro Detroit, said he supports the motion. "The purpose of sentencing is not to send a message to anybody, it's to judge the facts and circumstances of each individual and impose a sentence that is proportional and appropriate," he said.
Others support Small's tough stance on drunken driving. "Those charged with this offense are a serious threat to the public," Paul Walton, Oakland County's chief assistant prosecutor, told the Free Press.
Because drunk driving consistently results in more death, injuries and property damage than any other single crime, I am a supporter and fan of those who wish to ensure DUI punishments are both tough and effective. In prior debates over this issue on this blog, many have asserted that jail time is not an effective sanction, though I am not sure if there is data to support this assertion. I do know that ignition locks have proven effective to reduce repeat drunk driving, and I hope the attention being given to this one judge's DUI sentencing tendency might result in greater attention being given to this useful form of technocorrections.
Some related posts on sentencing drunk drivers and advocacy for ignition locks:
- ESPN analyst Jalen Rose (sort of) gets max jail sentence for drunk driving
- Documenting drunk driving sentencing disparities in Detroit
- Sentences of a few weeks for drunk driving makes Michigan judge uniquely tough
- Effective commentary complaining about undue leniency for drunk drivers
- Getting tougher on drunk driving
- Why do we worry so much more about sex offenders than drunk drivers?
- Technology versus toughness to combat drunk driving
- Undue leniency for drunk drivers?
- More discussion of leniency for drunk drivers
- More examples of undue leniency shown to repeat drunk drivers
- "Some Coloradans drive until they kill"
- New York about to require ignition locks as mandated punishment for drunk driving
"Resistance Widens to Obama Initiative on Criminal Immigrants"
The title of this post is the headline of this interesting article in today's New York Times. Here are excerpts:
Mayor Thomas Menino, who often invokes his heritage as the grandson of an Italian immigrant, was one of the first local leaders in the country to embrace a federal program intended to improve community safety by deporting dangerous immigrant criminals.
But five years after Boston became a testing ground for the fingerprinting program, known as Secure Communities, Mr. Menino is one of the latest local officials to sour on it and seek to withdraw. He found that many immigrants the program deported from Boston, though here illegally, had committed no crimes. The mayor believed it was eroding hard-earned ties between Boston’s police force and its melting-pot mix of ethnic neighborhoods.
Last month, Mr. Menino sent a letter to the program with a blunt assessment. “Secure Communities is negatively impacting public safety,” he wrote, asking how Boston could get out. On Aug. 5, Immigration and Customs Enforcement, which runs the program, gave an equally blunt response. Its director, John Morton, announced he was canceling all agreements that 40 states and cities had signed to start Secure Communities. Their assent was not legally required, he said, and he planned to move ahead anyway to extend the program nationwide by 2013....
Mr. Menino’s disenchantment illustrates the widening resistance from cities and states that is troubling one of President Obama’s most far-reaching programs to toughen enforcement against illegal immigration.
Administration officials are pressing ahead, saying that information-sharing laws passed after the Sept. 11 attacks mandate the program. The clash will gain a higher profile this month, when a task force Mr. Morton named to recommend fixes is to hold public hearings in a half-dozen cities....
Obama administration officials vigorously defend Secure Communities, saying it is essential for identifying immigrant gang members and other violent criminals arrested by the local police, so federal agents can focus on deporting them. Officials say they are taking steps to avoid deporting foreigners detained for immigration violations, which generally are civil, not criminal, offenses.
In a July 25 letter defending his strategy, Mr. Obama said that deportations of convicted criminals over all increased by 70 percent in 2010 over 2008, while the share of noncriminals among deportees was declining. “The increase in the proportion of criminal removals demonstrates that this strategy is having a real impact,” the president wrote.
Under Secure Communities, the fingerprints of anyone booked into jail are checked against the F.B.I.’s criminal databases — long a routine police practice — and forwarded to the Department of Homeland Security to be run through its databases, which record immigration violations. If an immigration check yields a match, the immigration agency decides whether to detain the foreigner for deportation.... [T]his year three governors — including Deval Patrick of Massachusetts, as well as Pat Quinn of Illinois and Andrew M. Cuomo of New York, all Democrats — announced that they wanted to pull out, as did officials in Los Angeles and San Francisco. The Congressional Hispanic Caucus and more than 200 immigrant groups have asked Mr. Obama to suspend the program....
Problems started earlier this year when advocacy groups released immigration data showing that more than half of 313 immigrants deported from Boston under the program had no criminal convictions. Many had been detained in traffic stops.
Boston’s police commissioner, Edward Davis, had been a Secure Communities supporter, because his records showed that it had removed many violent criminal immigrants from Boston jails. But he concluded from the new figures that immigration officials had misled him. They specifically told us they would not be removing people with traffic offenses,” Mr. Davis said. “They said they wouldn’t and now they have.”
Mr. Davis said he was taken aback by the indifference of immigration officials to his questions. “This is a throwback to the bad old days of the federal agencies before 9/11, when we did not have cooperation,” he said. “It is really disconcerting that they are not at all concerned about our precarious situation with immigrant communities.”...
Mr. Menino said a July 7 meeting he held with immigrant leaders had persuaded him to try to cancel the program. He did not hide his anger when immigration officials said it would continue. “People will start to say the police are gestapos,” the mayor said. “My police aren’t gestapos. You can’t be a bureaucrat in Washington and just say, ‘We don’t care.’”
Casey Anthony ordered back to Florida to serve supervised probation term
As explained in this ABC News piece, headlined "Casey Anthony Must Come Out of Hiding and Report for Probation," a high-profile defendant still has some sentence to serve:
Casey Anthony, the Florida woman acquitted of murdering daughter Caylee, must emerge from hiding and return to Orlando, Fla., by Aug. 26.... Judge Belvin Perry ended 10 days of deliberations by writing an order that Anthony must report to the Department of Corrections in two weeks to serve a year of supervised probation.
Anthony's probation stems from a check fraud conviction in 2010. Prior to her first degree murder trial, Anthony pleaded guilty to stealing checks from her best friend Amy Huizenga during the time that Caylee was missing.
The judge who presided over that case, Stan Strickland, ordered Anthony to serve 412 days in jail and a year's probation when she was released from jail. An error was made on the written sentencing documents which allowed Anthony, 25, to serve her probation while in jail awaiting her murder trial.
Last month, Strickland filed an amended order demanding Anthony return to Florida to serve a year's probation. Her defense attorneys claimed her probation had already been completed and filed for an emergency hearing on the matter.
In the order filed ... by Perry, he writes that probation is meant to rehabilitate an individual and that serving probation while incarcerated "would clearly thwart society's interest in extracting a full, fair, and just punishment for a crime."
"To permit the Defendant, whose counsel was well aware that the probation was to begin upon the Defendant's release from jail, to avoid serving probation now, would take a lawfully imposed sentence and make it a mockery of justice," he writes.
Perry goes on to scold Anthony's defense attorney, Jose Baez. Perry writes that Baez had a duty to intervene when it was apparent his client's sentence was not being imposed according to the judge's orders. "To additionally seek to use a scrivener's error to achieve an end that was against the court's intent, especially where both parties had argued the issue of when probation should commence, strikes at the very foundation of our justice system," Perry writes....
Perry acknowledged Anthony's notoriety. "This court is very mindful that it is a high probability that there are many that would like to see physical harm visited upon the Defendant," Perry wrote.
August 12, 2011
South Dakota high court rejects constitutional challenges to sex offender loitering crime
As reported in this AP article, the South Dakota Supreme Court earlier this week rejected a constitutional attack on a state law crminalizing loitering by sex offenders. Here are the details:
A state law barring registered sex offenders from loitering near schools, public parks and public playgrounds is constitutional because it provides sufficient warning of what conduct is prohibited, the South Dakota Supreme Court ruled Thursday.
The high court's unanimous ruling upheld the conviction of a Sioux Falls man who argued the law is unconstitutional because it is too vague. Kenneth Dale Stark, 61, was convicted of two counts of loitering in a community safety zone after law officers observed him near two public parks in Sioux Falls. A circuit judge then sentenced him to six years in prison....
After a woman reported that someone in a vehicle registered to Stark was watching or following children going to swimming lessons in April 2009, law officers followed Stark after he left work the following day. They testified in his trial that they saw Stark circle one park for about 20 minutes and later saw him drive away after being parked near another park....
During his trial and in the appeal, Stark argued the law was too vague and violated his constitutional freedom to loiter for innocent purposes. He contended he just drove past the first park and pulled over near the second park to yield to an oncoming car and allow some children to cross the street....
South Dakota law specifically prohibits registered sex offenders from loitering within 500 feet of any school, public park or public playground for the purpose of observing or contacting minors, the Supreme Court ruled. That language limits application of the law to loitering that has an apparently harmful purpose or effect, the justices said. "The statutes at issue were sufficient to provide Stark with notice that his conduct was prohibited, and they did not authorize the law enforcement officers in this case to act in an arbitrary or discriminatory manner," Justice Glen Severson wrote for the court.
The full opinion in South Dakota v. Stark is available at this link.
Texas closes prison for first time
As reported in this local article, headlined "As prison closes, could others be next?," the Lone Start State is in the process of closing a prison after having stabilized its prison population. Here are excerpts:
As white-uniformed convicts hefted steel bunks and furniture out of the aged Central prison unit on Thursday, correctional officers spoke in hushed tones about how time ran out for the concrete landmark. It was done in by suburbia that slowly surrounded it, a prison population that has stabilized after years of explosive growth and state budget cuts....
"There's no doubt there are better uses for that land as development occurs," said Senate Criminal Justice Committee Chairman John Whitmire, D-Houston. "And there's also no doubt that if the (prison) population continues to drop, that we may have other opportunities to close other units that are more expensive or are in the wrong place."...
The Central Unit, the first state prison in Texas history to close, is the second oldest in the state corrections system. It first opened in 1878 as a sugar-cane plantation where convicts were leased to companies, including Imperial Sugar, to work the fields. Its closure has been debated for at least six years. This spring, it fell victim to the tightest state budget in nearly a decade....
Officials note that Texas is perhaps the only state in the country now with hundreds of empty prison bunks and the possibility of having even more in the future, if trends hold....
Built to house 600 convicts in the white tower, capped by a peculiar, tiny cupola that once served as a lookout for guards, the old cellblocks at one time in the early 1950s held more than 1,000 prisoners.
"They should have condemned this place a long, long time ago," Terral Griffin, 48, a convicted burglar, said as he helped clear out an empty cellblock Thursday. He was assigned to Central until a few weeks ago and lived for a time in the tower. "It's one of the worst places I've been. The roaches and ants, the heat in the summer, the stories about the ghosts. If I'd come here first, I'd never wanted to come back" to prison.
August 11, 2011
Split Sixth Circuit panel reverses death sentence in long-running Ohio case
A split Sixth Circuit panel has today granted habeas relief in an Ohio case concerning a murder that too place nearly 30 years ago. Here is the start of the majority opinion in Stumpf v. Houk, No. 01-3613 (6th Cir. Aug. 11, 2011) (available here),
Recent polling results and statistical compilations support many of the economic and penological arguments that have long been raised in opposition to the imposition of the death penalty in the United States. Other statistics bolster objections to a form of punishment that, possibly because of its finality, has been shown to have been misdirected. Such polemical discussions, while interesting, are, however, better suited for the deliberations in the chambers of our state and national legislatures. In this appeal, we are not asked to involve ourselves in those debates, or even in a discussion of the constitutionality of the death penalty. Instead, we are required to examine only the constitutional ramifications of court proceedings that are alleged to have infringed John David Stumpf’s right to be sentenced in accordance with longstanding principles of due process and fundamental fairness. We conclude that those principles were violated by the state in seeking to execute Stumpf even after it became clear that the basis for the imposition of the death penalty had been seriously compromised in the subsequent prosecution of Stumpf’s accomplice, as further explained below. Indeed, the facts of this case exemplify the arbitrariness that prior decisions of the United States Supreme Court and of this court have decried as violative of fundamental constitutional safeguards. As a result, we once again reverse the judgment of the district court and remand this matter for issuance of a writ of habeas corpus, unless the State of Ohio conducts a new sentencing hearing for Stumpf within 90 days of the issuance of this opinion.
Here is how the dissent by Judge Boggs gets started:
The majority has resurrected a new substantive right of their own invention, which made its first appearance in Stumpf v. Mitchell, 367 F.3d 594 (6th Cir. 2004), vacated by Bradshaw v. Stumpf, 545 U.S. 175 (2005), and apparently had all along been lurking somewhere within the Fourteenth Amendment. In its current iteration, the new right protects a convicted murderer from being sentenced to death where mitigating evidence (i.e., evidence that does not undermine the murder conviction itself but that might have counseled towards a more lenient sentence) discovered after sentencing is later used by the prosecution against a different defendant. Notably, the due process violation is not that mitigating evidence exists that is later discovered, which would not by itself offend the Constitution, Noel v. Norris, 322 F.3d 500, 504 (8th Cir. 2003); see Herrera v. Collins, 506 U.S. 390, 400 (1993), but, curiously, that the newly discovered evidence is later used by the prosecution against a different defendant. Somehow, that purely later conduct retroactively renders the earlier sentence unconstitutional.
"Kids for Cash" judge gets 28-year (way-above-guideline?) federal prison term
As detailed in this local Pennsylvania article, which is headlined "Luzerne ex-judge gets 28-year sentence," a judge at the center of a juve sentencing scandal will now likely spend the rest of his life in prison. Here are the basics:
A disgraced Luzerne County judge was sentenced to 28 years in federal prison Thursday for his conviction on charges of taking hundreds of thousands of dollars in payments in connection with the operation of the counties' juvenile center. The ex-judge, Mark A. Ciavarella, Jr., 61, was given the harsh sentence after he told the judge that he apologized for unethical behavior but had never taken "cash for kids."
He was found guilty in February of twelve counts of racketeering, conspiracy, fraud and filing false tax returns. The jury acquitted him on 27 other counts of bribery and extortion, as he pointed out to the judge before he was sentenced.
Ciavarella, for years the head of juvenile court in the county, was charged with the former president judge there in a 2.8 million dollar scheme to enrich themselves through their control of juvenile justice in Luzerne County.
The other ex-judge, Michael T. Conahan, 59, pleaded guilty and is awaiting sentencing, as are other key conspirators in the plot, including the builder and an owner of a for-profit juvenile detention center that was at the heart of the corruption....
Juvenile justice advocates, in criticism later affirmed by the State Supreme Court, said Ciavarella ran a kangaroo court for teens and children, shipping them to the facility with no regard for fairness. Prosecutor Gordon Zubrod told the sentencing judge, Edwin Kosik, that Ciavarella had sold kids wholesale and deserved to be sentenced "for the rest of his natural life."
Based on prior reports about the calculated guideline range in this imposed prison term appears to be way above the applicable guideline range. It wll be interesting to see if an appeal of the sentencing to the Third Circuit is on the horizon.
August 10, 2011
"Bronx Judge Finds Constitutional Defect in Sex Offender Law"
The title of this post is the headline of this New York Law Journal article from earlier this week. Here is how it begins:
A Bronx judge has ordered the state to release a potentially dangerous sex offender because of a constitutional defect in the Mental Health Law. Supreme Court Justice Colleen Duffy held in State v. Enrique T., 2011 NY Slip Op 21269, that the law empowering New York to civilly manage sex offenders after they have completed a criminal sentence unconstitutionally requires confining them before there has been a trial to determine if civil confinement is even necessary.
Justice Duffy found that the law is rendered facially unconstitutional by the fact that it does not permit any less restrictive remedy. Her decision follows a federal court decision in March by Southern District Judge Deborah A. Batts that came to the same conclusion.
The rulings center on the 2007 Sex Offender Management and Treatment Act, which permits the "civil management" of sex offenders who have completed their criminal sentence but remain a danger to society. Under the law, if a court finds probable cause that a convicted sex offender remains a danger, the individual must be confined until a civil trial.
At trial, the attorney general has the burden of establishing by clear and convincing evidence that the offender suffers from a "mental abnormality" that predisposes him to commit sex crimes. If the attorney general prevails, the court then determines if the individual requires involuntarily confinement in a mental institution, or if the offender can safely be managed through strict, intensive community supervision.
In the case at hand, Justice Duffy in May found probable cause that Enrique T. was in need of civil management and issued an interim order holding that he is a danger to the public. Her decision last week addresses whether Enrique T. can be confined until trial, as required by Mental Hygiene Law §10.06(k).
Relying primarily on the U.S. Supreme Court's ruling in United States v. Salerno, 481 U.S. 739 (1987) — and referencing Judge Batts' directly on point decision in Mental Hygiene Legal Service v. Cuomo, 07 Civ. 2935 — Justice Duffy held §10.06(k) facially unconstitutional. Salerno held that pretrial detention is permissible under the Fifth and Fourteenth amendments only when the public safety interest would not be satisfied with less restrictive conditions.
"Remedying Wrongful Execution"
The title of this post is the title of this new piece by Professor Meghan Ryan, which is now available via SSRN. Here is the abstract:
The first legal determination of wrongful execution in the United States may very well be in the making in Texas. One of the state’s district courts was recently in the midst of investigating whether Cameron Todd Willingham, who was executed in 2004, was actually innocent. The court has been interrupted by objections from Texas prosecutors and the presiding judge’s retirement, but if the court proceeds, this may very well become a bona fide case of wrongful execution. Texas, just like other jurisdictions, is ill-equipped to provide any relief for such an egregious wrong, however.
This Article identifies the difficulties that the heirs, families, and friends of wrongfully executed individuals face in attempting to obtain compensation for this wrong. The Article highlights that statutory compensation schemes overlook the issue of wrongful execution and the greater injustice it entails and urges that the statutes be amended in light of this grievous wrong that has come to the fore of American criminal justice systems.
Should a prison sentence necessarily halt all access to all social media for all purposes?
The question in the title of this post is prompted by this recent AP piece, which is headlined "Calif. says Facebook will remove inmates' pages" and reports these developments:
Facebook has agreed to work with law enforcement agencies nationwide to remove accounts set up by inmates or posted on their behalf, in part because prisoners are using the social networking site to stalk victims and direct criminal activity, California prison officials said Monday.
It's the latest effort to combat a problem that has grown with the advent of smart phones and social networking sites. Last year a convicted child molester used a cell phone smuggled into prison to search his victim's Facebook and MySpace web pages, the Department of Corrections and Rehabilitation said in announcing the agreement with Facebook. The inmate then sent sketches to the 17-year-old victim's home....
"Victims who fought hard to put their offenders behind bars are being re-victimized," said department spokeswoman Dana Toyama. "It's evolving as Facebook has become a huge social networking site and a place for gang members to talk and coordinate inside and outside prison. This is just one example of what they can do."
Inmates are permitted to retain Facebook profiles that were created before they went to prison, according to the department. But Facebook will disable the account if it is used while the inmate is behind bars. Prison officials said the problem has grown worse because of the growth in smuggled cell phones. Six years ago the department confiscated 261 devices, compared to 10,760 last year and 7,284 in the first half of this year.
Facebook spokesman Andrew Noyes said prison officials' best response is to keep smart phones and other Internet devices out of prisons. "We will disable accounts reported to us that are violating relevant U.S. laws or regulations or inmate accounts that are updated by someone on the outside," he said in an e-mailed statement. "We will also take appropriate action against anyone who misuses Facebook to threaten or harass."
Noyes said Facebook has been cooperating with law enforcement for some time whenever it is notified of problems, but Toyama said California had previously asked Facebook to remove inmates' pages without success. "We've really only been successful in taking down one account so far. After this, we're looking to be able to do this more," Toyama said.
She said the Federal Bureau of Prisons first announced Monday that Facebook had agreed to take down any account that prison officials can confirm has been updated while an inmate is in prison. The bureau's National Gang Intelligence Center also reported a growing problem of inmates with active Facebook accounts, Toyama said, but she could not provide a copy of the report because it is a confidential law enforcement bulletin.
I understand the many ways some prisoners might use social media like Facebook to do harm, but I also suspect many prisoners might much rather use social media (instead of, say, letters or phone calls or even emails) to keep family and friends updated on how they are doing while they serve their sentence. And I read this article to suggest that even an update to a prisoner's Facebook page done by someone on the outside could lead to a social media "takedown."
These realities, combined with the fact that nearly 2.5 million persons are behind bars in the United States, perhaps suggests the next social-media opportunity. Perhaps a clever programmer can and should develop a form of Facebook that is uniquely structured and regulated for use (and only proper usage) by persons who are incarcerated. If well-developed in consultation with prison officials and experts in corrections policies and practices, this new form of social media (dare I call it FelonSpace?) perhaps could provide prisoners and their family and friends with social media benefits without the risk of harmful misuse.
Sentencing debate joined for Raj Rajaratnam in high-profile insider trading case
As detailed in this Bloomberg news report, which is headlined "Rajaratnam Prison Sentence of More Than 24 Years Sought by Prosecutors," a high-profile insider trading case is getting closer to sentencing. The parties have apparently filed initial sentencing memos, and here is how this Bloomberg report describes the terms of the sentencing debate:
Galleon Group LLC co-founder Raj Rajaratnam, labeled by prosecutors as the “face of illegal insider trading,” should spend as long as 24 years and five months in prison, the U.S. told the judge who will sentence him.
Lawyers for Rajaratnam, in a separate court filing yesterday, asked U.S. District Judge Richard Holwell in Manhattan for a prison term “substantially below” what federal guidelines recommend. Rajaratnam’s attorneys, citing their client’s poor health, urged Holwell not to force him to die in prison.
Rajaratnam, 54, was convicted in May of all 14 criminal counts of conspiracy and securities fraud he was charged with. He’s scheduled to be sentenced Sept. 27.
Prosecutors said he should serve at least 19 years, seven months in prison. “Rajaratnam repeatedly leveraged the power of money and his position as the head of a $7 billion hedge fund to induce friends, employees and associates to participate in his criminal activities,” Justice Department lawyers said in their sentencing memorandum yesterday. “He is the modern face of illegal insider trading.”
Prosecutors called Rajaratnam the most “egregious violator” of insider-trading laws ever to be caught. He engaged in a seven-year conspiracy to trade on inside information from corporate executives, bankers, consultants, traders and directors of public companies including Goldman Sachs Group Inc. (GS), they said. He gained $63.8 million as a result of the scheme, according to the government....
Prosecutors called Rajaratnam a “fundamentally deceptive and dishonest person.” They said he lied under oath in a civil deposition and told others how to avoid detection. They also urged the judge to send a message of “deterrence” to combat the “rampant insider trading during the last several years.”
“Rajaratnam represents the worst of illegal insider trading,” prosecutors wrote. They compared him to Enron Corp.’s Jeffrey Skilling and WorldCom Inc.’s Bernard Ebbers, convicted in what prosecutors called “the worst of accounting frauds,” and Bernard Madoff, who they said represents “the worst of Ponzi schemes.” Skilling was sentenced to 24 years, Ebbers to 25 years, and Madoff to 150 years....
“Mr. Rajaratnam is not a healthy man,” his lawyers wrote, citing “significant and challenging medical issues” that are known to the court’s probation department. “His death will be hastened by a term of imprisonment,” they said.
Rajaratnam’s lawyers submitted letters on his behalf from his family members, former business associates, ex-employees and even his apartment doorman. Some of the letters detail what the defense said is more than $45 million in charitable donations by Rajaratnam in the U.S. and abroad, including millions of dollars to help victims of a tsunami that devastated his native Sri Lanka....
The defense argued that Rajaratnam’s crimes are “not in the same league” as those committed by Enron or WorldCom executives “since those defendants betrayed their own shareholders and employees.” Rajaratnam did nothing to harm his investors, [his lawyers] wrote. [They] also said that Rajaratnam’s sentence should be consistent with those imposed on others convicted of insider trading, including former New Castle Funds Analyst LLC Danielle Chiesi, a co-defendant who was sentenced on July 20 to 2.5 years behind bars.
August 10, 2011 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (4) | TrackBack
August 9, 2011
What are the strongest arguments against legalizing marijuana and regulating it like hard liquor?
Reviewing the discussion in the comments to this recent post and also to a similar post by Bill Otis over at Crime & Consequences, I continue to wonder about the question is in the title of this post. I can readily (and will now briefly) list what I see as primary arguments in favor of legalizing pot and regulating it like hard liquor:
1. In a country "conceived in Liberty," adults should be free to pursue happiness as they see fit unless and until their activities harm or restrict the liberties of others.
2. Pot prohibition apparently has not significantly reduced either the demand or supply in the US, while it has created a massive black market in which lawbreakers can and do make lots of money by providing a source of supply for the enduring demand.
3. Government enforcement of pot prohibition, in addition to seeming effectual, as is quite costly, disparate, inconsistent and unpredictable.
4. A huge amount of legitimate economic activities, as well as significant new tax revenues, would surely result from legalizing and regulating pot.
Point 1 above is a rights-based moral claim (with a special American constitutional salience), while points 2-4 are more utilitarian arguments that might disputed/refuted with claims/evidence that more harm could and would flow from legalization than flows from prohibition. This Heritage Foundation paper from last year makes some of these kinds of arguments against legalization, but I wonder which of those arguments (or others) seem to readers of this blog to be the most forceful or influential.
As the title of this post suggests, I am eager to hear via the comments the strongest arguments against legalizing marijuana and regulating it like hard liquor. I hope even the most ardent supporters of legalized marijuana will seek to articulate in the comments what they consider to be the most impactful claims made by supporters of pot prohibition.
Third Circuit (joining First and Eleventh Circuits) applies FSA lower mandatory minimum terms to pipeline cases
Via its opinion today in US v. Dixon, No. 10-4300 (3d Cir. Aug. 9, 2011) (available here), the Third Circuit has joined two other circuits in declaring that the new mandatory minimum sentencing provisions of the Fair Sentencing Act apply to all defendants who were not yet sentenced at the time of the Act's enactment. Here is how the opinion in Dixon opinion starts and ends:
The question presented in this appeal is whether the more favorable mandatory minimum prison sentences imposed by the Fair Sentencing Act of 2010 (the “FSA” or the “Act”) apply retroactively to defendants, like Kenneth Dixon, who committed their crimes before the Act became law, but who were sentenced afterwards. We hold that the FSA does apply in this instance. The language of the Act reveals Congress‟s intent that courts no longer be forced to impose mandatory minimums sentences that are both indefensible and discriminatory. Therefore, we will vacate the judgment of the District Court and remand for resentencing....
We hold that the FSA requires application of the new mandatory minimum sentencing provisions to all defendants sentenced on or after August 3, 2010, regardless of when the offense conduct occurred. “[T]he terms of the law as a whole,” Great N. Ry., 208 U.S. at 465, namely the Act's grant of emergency authority to the Sentencing Commission and the desire to achieve “consistency” through “conforming” amendments, in conjunction with the directive in the Sentencing Reform Act of 1984 to apply the Guidelines in effect on the day of sentencing, lead to the inescapable conclusion that Congress intended to apply the FSA to Dixon. This interpretation of the Act comports with its stated purpose to restore fairness to federal cocaine sentencing. To conclude otherwise would frustrate this goal and set “the legislative mind . . . at naught.” Id. Accordingly, we will vacate the judgment of the District Court and remand so that Dixon may be sentenced in accordance with the terms of the FSA.
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
- A (justifiably) sharp reaction to AG Holder's new position on FSA crack pipeline cases
"Smart Reform is Possible: States Reducing Incarceration Rates and Costs"
Since President Richard Nixon first announced the "War on Drugs" 40 years ago, the United States has adopted "tough on crime" criminal justice policies that have given it the dubious distinction of having the highest incarceration rate in the world. These past 40 years of criminal justice policy-making have been characterized by over-criminalization, increasingly draconian sentencing and parole regimes, mass incarceration of impoverished communities of color, and rapid prison building. These policies have also come at a great expense to taxpayers. But budget shortfalls of historic proportions are finally prompting states across the country to realize that less punitive approaches to criminal justice not only make more fiscal sense but also better protect our communities.
This report highlights six traditionally "tough on crime" states — Texas, Mississippi, Kansas, South Carolina, Kentucky, and Ohio — that recently passed significant bipartisan reforms to reduce their prison populations and budgets. These states experienced declines in their crime rates while these new policies were in place. The report also highlights national trends in criminal justice legislation and offers a number of recommended ways that lawmakers in other states can reform their pre-trial, sentencing, parole, and probation systems. Smart Reform is Possible serves as an exciting and essential blueprint for states on the cusp of considering the reform of their corrections systems.
Sentencing jury gives Warren Jeffs life PLUS twenty years for child rape offenses
As detailed in this CNN report, "[p]olygamist leader Warren Jeffs was sentenced Tuesday to life in prison plus 20 years for sexually assaulting two girls he claimed were his 'spiritual wives'." Here is more:
Jeffs, 55, will have to spend at least 45 years in prison before being eligible for release, according to Jerry Strickland, spokesman for the Texas Attorney General's office.
The jury sentenced Jeffs to life in prison for aggravated sexual assault of a 12-year-old girl and 20 years in prison for the sexual assault of a 15-year-old girl. He must serve at least 35 years of the life sentence and half of the other sentence, Strickland said. The judge in the case ordered that the sentences be served consecutively.
Sounds about right to me.
Seeking reflections and/or forecasts on the Roberts Court and sentencing jurisprudence
Emily Bazelon has this notable mid-summer SCOTUS essay in this past week's issue of The New York Times Magazine. It included these notable passages about the two newest Justices:
The court’s most recent additions, the Obama appointees Sonia Sotomayor (two years on the bench) and Elena Kagan (one year), have quickly become a formidable duo on the court’s left flank, with the promise to serve as a 21st-century version of Thurgood Marshall and William Brennan. They have voted the same way in 96 percent of the cases they have both heard — the highest rate of agreement of any pair of justices.
But what’s more interesting is that the two women couldn’t be less alike in their leadership styles. Sotomayor seems to relish going it alone as the court’s liberal voice of conscience. She wrote five solo dissents and concurrences this year to Kagan’s none. And she has been far more concerned about the rights of the convicted on the high court than she was earlier in her career. In the 29 opinions Sotomayor wrote as a district and appeals court judge, she never once granted relief to a prisoner petitioning for a writ of habeas corpus, the appeal of last resort for the convicted. Yet this year, Sotomayor took the rare step of publicly opposing the court’s decision not to hear the petition of a Louisiana prisoner who stopped taking his H.I.V. medication to protest a prison transfer and sued for being punished with hard labor in 100-degree heat. She actually pulled this petition out of a stack of thousands that prisoners submit without lawyers, making a cause célèbre of a humble plea. With this, Sotomayor set herself up to be the court’s hard-charging liberal — à la Marshall, who liked to take his shots, diplomatic maneuvering be damned.
Kagan, meanwhile, has positioned herself as chief diplomat (reminiscent of Brennan). As a D.C. lawyer familiar with the court put it, “If you asked every justice who Justice Kagan’s favorite is, they’d all name themselves, except maybe Chief Justice Roberts.” Justice Ruth Bader Ginsburg has been so impressed by Kagan’s work that she told me, “Elena has it in her to be one of the exemplary justices of our time.” That’s wild enthusiasm from one justice to another. As the most senior member of the court’s left wing, Ginsburg now has the power to decide who will write the dissent when the court splits five-to-four along ideological lines. She gave two of the big cases to Kagan, who came through with dissents that were models of forceful clarity and that even employed humor in search of a wider audience.
The Marshall and Brennan comparison struck me as intriguing and somewhat compelling unless one was focused upon the death penalty: Justices Marshall and Brennan (in)famously viewed the death penalty as unconstitutional in all circumstances; there is no basis for believe Justices Sotomayor and Kagan now or will even have this view. This death penalty reality aside, it is interesting to speculate not only how Justices Marshall and Brennan would have respond to modern SCOTUS sentencing issues, but also how Justices Sotomayor and Kagan will engage with these issue in the coming years and decades.
More broadly, as the title of this post suggests, I think it is now a quite good time to reflect broadly on the past, present and future of the Roberts Court and sentencing jurisprudence. In the wake of four major personnel changes, the composition of the Court seems likely to be settled and stable for at least a few more years. But many non-capital sentencing doctrines with constitutional elements, ranging from Apprendi to Booker to Padilla to Graham, hardly seems settled and stable. Where do folks think these and other sentencing doctrines might be headed?
"With nowhere to go, sex offenders file suit: New school ousts nearby safe house residents"
The title of this post is the headline of this new local article from Delaware, which begins this way:
For nearly three years, 52-year-old Richard Paredes has lived on Wilmington's East Side, sharing quarters with men recently released from prison who have nowhere else to live. Paredes, a former teacher, also works out of the home as a case manager trying to find jobs and permanent housing for the former offenders.
But by next week, Paredes and the other registered sex offenders living at the Harriet Tubmans Safe House -- one of the few places in the state that takes in homeless registered sex offenders -- must move out. That's because of a learning center and preschool that recently opened less than 500 feet from the safe house.
"I understand the law, but there also should be like a pre-existing clause like in some other states," said Paredes, who was convicted of two sexual offenses. "This program has been here first, and this program actually is respected by the community."
Under Delaware law, certain sex offenders are not permitted 500 feet from a school, even if the school opens after the registered sex offender began living there.
Harriet Tubmans Safe House, which consists of two homes less than a block away from each other, housed about 24 people at one time. But since Wilmington police informed them of the coming evictions, 11 registered sex offenders have moved out. Five others remain there hoping a federal lawsuit will allow them to stay in at least one of the houses.
August 8, 2011
Should all letters to a sentencing judge in high-profile controversial case be made public?
The question in the title of this post, concerning which I have mixed feelings, is prompted by this local article headlined "Attorney argues for release of Ciavarella sentencing letters." Here are the details prompting the query:
Letters written to a federal judge concerning the upcoming sentencing of kids-for-cash judge Mark A. Ciavarella Jr. should be made public, an attorney representing The Citizens’ Voice andThe Scranton Times-Tribune argued in a letter to the court today.
The letters, including character references written on Ciavarella’s behalf and victim-impact statements, should be made available on First Amendment grounds and to satisfy the public’s right of access to judicial records, according to the letter written by attorney Joseph O. Haggerty Jr. on behalf of the newspapers, which are both published by Times-Shamrock Newspapers. "Access to sentencing letters cannot be denied without a particularized showing that release of those records would cause significant harm," Haggerty wrote in the letter to U.S. District Judge Edwin M. Kosik, who will sentence Ciavarella Thursday on racketeering and other charges.
In a pre-trial conference last month, Kosik told attorneys in the case that he had received 147 letters in regard to Ciavarella, a former Luzerne County Juvenile Court judge found guilty of accepting payments from individuals with ties to two for-profit juvenile detention centers.
On Saturday, one of Ciavarella’s attorneys said his client had decided not to seek character letters on his behalf, fearing adverse publicity for the writers if the letters became public. The U.S. Attorney’s Office has solicited written victim-impact statements from former defendants in Ciavarella’s courtroom through its website.
Ciavarella is one of more than 30 government officials and contractors prosecuted in a federal corruption probe in Luzerne and Lackawanna counties since January 2009. Other judges in the U.S. Middle District of Pennsylvania have released similar letters in some of those cases.
I tend to strongly favor public access and transparency on nearly all sentencing matters, but I also fear that potentially important sentencing information may not always be included in the record if all sentencing materials are always subject to public disclosure. As this article notes, the defendant here apparently was dissuaded from seeking character letters based on fear of adverse publicity for letter-writers. Perhaps release of materials with some redactions can balance competing consideration in these sorts of cases.
Meanwhile, this new AP article provides in more information on this infamous case as the kids-for-cash judge's sentencing appraoches later this week. Here are the basics:
Ciavarella faces a maximum of 157 years in prison on charges that also include money laundering and conspiracy, but is more likely to get between 12½ years and 15½ years under federal sentencing guidelines, prosecutors have said.
Long-time readers may recall, as reported in this post, that an original plea deal calling for this defendant to serve just over 7 years in prison was rejected by the district judge.
Related posts from 2009:
- State judges plead guilty to sending juves to jail for moolah
- Federal sentencing fall-out from juve sentencing corruption
- District judge rejects plea deal offered to crooked state judges
Florida officials apparently make citizens less safe by toughening policy of restoring rights to freed felons
The title of this post is prompted by this notable new piece from the St. Petersburg Times. The piece is headlined "State toughens policy of restoring rights to freed felons," and here is how it begins:
Desmond Meade served time for cocaine possession and aggravated battery, but turned his life around and overcame the drug and alcohol addictions that forced him to live on the streets of Miami.
Seven years after walking out of state prison, Meade, 44, is in law school and helps run a halfway house for addicts. But what he wants most, he can't get: full citizenship and the right to vote.
Meade is one of 89,833 people waiting to have their civil rights restored by Gov. Rick Scott and three statewide-elected Cabinet members. He's in for a long wait.
Under new rules Scott and the Cabinet adopted in March, Meade must now wait seven years for a clemency hearing. A huge backlog of pending cases means it likely will take much longer for felons to regain the right to vote, serve on a jury or run for office.
"I find it disheartening," said Meade, who, as a second-year law school student at Florida International University, could select a jury before he's allowed to serve on one. "A person such as myself, who has rehabilitated his life, for them to tell me that in spite of all of the accomplishments I've made that I'm not eligible to get my rights restored, is wrong. I find it un-American."
Led by Scott and Attorney General Pam Bondi, officials scrapped a streamlined clemency process begun by former Gov. Charlie Crist that they felt was too easy for ex-offenders. The new system, in effect since March, requires felons to be crime-free for at least five years before their clemency petitions can be considered. Certain classes of violent felons, like Meade, must wait seven years.
But a new report by the Florida Parole Commission shows that a released felon in Florida whose civil rights are restored is much less likely to commit a new crime than others in the overall population of released prisoners. The report, quietly delivered to officials a few weeks ago, has not been discussed publicly.
The agency studied 31,000 cases over a two-year period in 2009 and 2010 and found that about 11 percent of people whose civil rights were restored ended up back in custody. The overall re-offense rate in the state is three times higher — 33 percent — according to the Department of Corrections.
I wonder if any advocates for smarter sentencing reforms — especially folks like Newt Gingrich and others on the right who have gotten involved in the "Right on Crime" campaign — might start vocally criticizing Florida's Governor and Attorney General for scraping a program that has appeared to be effective at reducing recidivism. I fear that seemingly misguided and harmful "toughness" like we see in this Florida setting will not stop unless and until it gets subject to strong and vocal criticism by folks on all sides of the political aisle.
UPDATE: I was able to find on-line at this link the Florida Parole Commission report that is mentioned in this article. Significantly, as Kent Scheidegger properly notes in the comments, this report alone does not itself establish a causal link between restoraction of rights and reduced recidivism as there is surely some correlation between those least likely to reoffend and those who had been geting their rights automatically restored under Florida's old procedures. Still, the fact that restoration was automatic in many cases under the prior rules perhaps suggests that this is more than a mere correlation, and it would be great if Florida officials or outside researchers could and would crunch these numbers further.
Notable Eighth Circuit rejection of government sentencing appeal based on "convicted conduct"
As regular readers know, the Justice Department frequently asks (and often succeeds in getting) federal judges to enhance sentences based on "acquitted conduct" after a jury has rejected some aspects of the prosecution's criminal charges. Today, in US v. Renner, No. 10-2502 (8th Cir. Aug. 8, 2011) (available here), an Eighth Circuit panel rejects a government appeal when the sentencing shoe ended up on the other foot because the sentencing judge in a sense reduce a sentence based on "convicted conduct." Here are the details from the start and end of the Renner opinion:
A jury found Steven Mark Renner guilty of four counts of tax evasion, in violation of 18 U.S.C. §7201, and the district cour2 sentenced him to 18 months’ imprisonment. Renner appeals his convictions, arguing that the government constructively amended the indictment through the evidence presented at trial; the instructions erroneously defined “taxable income” and “good faith”; and the evidence was insufficient to support his convictions. The United States appeals Renner’s sentence, contending that the district court erroneously relied on a fact rejected by the jury in imposing a sentence below the applicable Sentencing Guidelines range. We affirm....
The government argues that the case must be remanded for resentencing because the district court abused its discretion as a matter of law, and thereby imposed an unreasonably lenient sentence, by granting a downwards variance from the Advisory Guidelines range of 41 to 51 months based on a fact -- good-faith reliance upon expert advice -- considered and rejected by the jury....
It is ...“improper for the judge in sentencing to rely on facts directly inconsistent with those found by the jury beyond a reasonable doubt.” United States v. Bertling, 611 F.3d 477, 481 (8th Cir. 2010) (holding that the non-contradiction principle survived United States v. Booker, 543 U.S. 220 (2005)). Although a close question is presented, we believe the district court’s sentence was not based on facts that contravened the jury’s verdict. From the sentencing transcript it is clear that the district court fully accepted the jury’s rejection of the good-faith defense, and the district court did not find otherwise. Rather, among the factors considered, the district court relied on the fact that Renner did consult with professionals, a fact the court believed distinguished Renner from other tax evaders who made no effort whatsoever to seek professional advice. The district court was entitled to consider that Renner at least consulted tax professionals, even if the jury did not believe that Renner met all of the requirements for a good-faith defense.
Our review of the sentencing transcript convinces us that the district court did not commit a procedural error, and that the sentence was substantively reasonable.