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August 27, 2011

"Perry delivers on Texas death penalty"

The title of this post is the headline of this provocative commentary by Debra Saunders appearing in the San Francisco Chronicle. Here is how it starts and ends:

As Texas governor, GOP presidential hopeful Rick Perry has presided over 234 executions. It's a record number, which, the Washington Post reported last week, bestows on Perry "a law-and-order credential that none of his competitors can match -- even if they wanted to."

Watch how pundits will try to turn that statistic into a political negative -- and paint Perry as the governor with blood on his spurs -- even though American voters overwhelmingly support the death penalty....

I think the death penalty could be a much bigger problem for President Obama as he seeks re-election. Obama says that he supports the death penalty, but his administration opposed Texas' scheduled execution of Humberto Leal -- who was convicted in the 1994 rape-murder of a 16-year-old -- because Leal, a Mexican citizen raised in San Antonio, had not been advised that he was entitled to consult with the Mexican Consulate.  Perry would not oblige, and Leal was executed.

Also, under the Obama administration this year, the Drug Enforcement Administration seized the lethal-injection drug sodium thiopental from Georgia, Kentucky and Tennessee on the grounds that the Food and Drug Administration has not approved drugs intended to execute convicted killers.

Yes, folks, those are your tax dollars at work in the Obama administration - funding federal law enforcement raids designed to undermine state laws.  It doesn't matter that the U.S. Supreme Court upheld lethal injection by a 7-2 margin in a 2008 ruling.  If there is one way Democrats know how to use the federal government successfully, it is to sabotage state laws they don't like.

Some recent related posts: 

August 27, 2011 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (14) | TrackBack

Should guidelines actually call for a sentence increase if a defendant apologizes?

The provocative question in the title of this post is prompted by this provicative new paper available via SSRN by Professor Murat Mungan.  The paper is titled "Don't Say You're Sorry Unless You Mean it," and here is the abstract:

Remorse and apologies by offenders have not been rigorously analyzed in the law and economics literature.  This is perhaps because apologies are regarded as 'cheap talk' and are deemed to be non-informative of an individual's conscious state.  In this paper, I develop a formal framework in which one can analyze remorse and apologies.

I argue that legal procedures can be designed to price apologies, such that only truly remorseful individuals apologize. Hence, apologies would not be mere 'cheap talk' and could send correct signals regarding an offender's true conscious state, making them credible.  This will lead victims, upon receiving apologies, to forgive offenders more frequently.  Moreover, pricing apologies does not negatively impact the possibility of achieving optimal deterrence.  An (arguably negative) effect of pricing apologies is its elimination of insincere apologies.  If it is assumed that apologies, even if insincere, carry rehabilitative and/or palliative benefits, than the optimality of pricing apologies depends on a trade-off between achieving credibility and increasing such rehabilitative and palliative benefits.

August 27, 2011 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (6) | TrackBack

Barry Bonds convictions upheld by district judge... next stop sentencing(?)

As detailed in this Bloomberg piece, headlined "Bonds’s Obstruction Conviction in Steroids Probe Upheld by Federal Judge," late yesterday "U.S. District Judge Susan Illston in San Francisco [denied Barry Bonds'] request for an acquittal and refus[ed] to grant a new trial." Here is more:

Illston rejected Bonds’s argument that there was no crime in his 146-word answer to a grand jury about whether his trainer Greg Anderson ever gave him anything that required an injection with a syringe. His attorney, Dennis Riordan, said at an Aug. 25 hearing before Illston that the former San Francisco Giants outfielder took about 75 seconds to respond to prosecutors’ direct question and eventually answered “no.”

“Defendant repeatedly provided nonresponsive answers to questions about whether Anderson had ever provided him with injectables, resulting in the prosecuting attorneys asking clarifying question after clarifying question, and even once resulting in one prosecutor interrupting another who was about to move on to a new topic in order to clarify defendant’s mixed responses,” Illston wrote in her ruling. “An evasive answer about an issue material to the grand jury is not necessarily rendered immaterial by the later provision of a direct answer, even if that direct answer is true.”

Bonds, 47, was convicted in April by a federal jury in San Francisco of obstructing a U.S. probe of steroid use by professional athletes. Jurors were unable to agree on whether Bonds lied when he told a grand jury in 2003 that he didn’t knowingly take steroids, didn’t take human growth hormone and didn’t receive injections by Anderson. A mistrial was declared on those counts.

The full 20-page ruling denying the motions for acquittal and a new trial in US v. Bonds is available at this link.  And, as the title of this post hints, I am not sure if this ruling means that sentencing is now to be the next stage of the long-running Bonds legal saga.

Related 2011 Bonds posts:

August 27, 2011 in Celebrity sentencings | Permalink | Comments (4) | TrackBack

August 26, 2011

"Sushi and whisky: hard time in Russia's VIP prisons"

The title of this post is the headline of this report from The Independent newpaper, which gets started this way:

For most people, spending years in a Russian prison camp would be a living nightmare. But one ex-prisoner has described how it can be a time of whisky, sushi and relative freedom -- if you have enough money.

Andrei, a former assistant to a Russian member of parliament who was sentenced to nine years in jail in 2006 for embezzlement, says that from day one of his time in the camps, money was the only language.  In an interview with Russian newspaper Moskovsky Komsomolets, the former prisoner explains in detail how he paid his way through his years in jail, where he says that anything can be bought for the right price.

"We had whatever we wanted. I even ate sushi every day," he told the paper, to which he showed photographs that backed up his claims.  "We had a great table laid on for us in the camp -- sushi, champagne, whisky."

His allegations come just a month after photos were published of prisoners partying in a prison just outside Moscow.  The photos showed inmates dressed up in togas, sitting down to a lavish meal and having McDonald's delivered to their cell.  The governor of the prison was sacked after the photos appeared on the internet.  Both incidents show how corruption, endemic in Russia, has also engrained itself in the Russian prison system.

August 26, 2011 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (1) | TrackBack

"Minority Practice, Majority’s Burden: The Death Penalty Today"

The title of this post is the title of this lengthy new article by Professor James Liebman and Peter Clarke, which is now available via SSRN and is forthcoming in the Ohio State Journal of Criminal Law. Here is the abstract:

Although supported in principle by two-thirds of the public and even more of the States, capital punishment in the United States is a minority practice when the actual death-sentencing practices of the nation’s 3000-plus counties and their populations are considered.  This feature of American capital punishment has been present for decades, has become more pronounced recently, and is especially clear when death sentences, which are merely infrequent, are distinguished from executions, which are exceedingly rare.

The first question this Article asks is what forces account for the death-proneness of a minority of American communities?  The answer to that question -- that a combination of parochialism and libertarianism characterizes the communities most disposed to impose death sentences -- helps to answer the next question addressed here: Why so few death sentences end in executions?  It turns out that the imposition of death sentences, particularly for felony murder (a proxy for the out-of-the-blue stranger killings that generate the greatest fear among parochial communities), provides parochial and libertarian communities with a quick and cheap alternative to effective law enforcement. And that alternative is largely realized whether or not death sentences are ultimately carried out.  This explanation sheds light on two other criminal law conundrums -- the survival of the most idiosyncratic manifestation of the felony murder doctrine (which mysteriously transmogrifies involuntary manslaughter into capitally aggravated murder) and the failure of the death penalty to have a demonstrable deterrent effect (which is not surprising if the death penalty operates as a weak substitute for, rather than a powerful addition to, otherwise effective law enforcement strategies).  The explanation also reveals a number of costs the capitally prone minority imposes on the majority of citizens and locales that can do without the death penalty, including more crime, a cumbersome process for reviewing systematically flawed death sentences whose execution is of less interest to the death sentences’ originators than their imposition, and a heightened risk --to the judicial system as well as individual defendants -- of miscarriages of justice.

These explanations, in turn, beg the most important and difficult question considered here.  Why do the majority of communities and citizens who can live without the death penalty tolerate a minority practice with serious costs that the majority mainly bears? With a bow towards Douglas Hay’s famous explanation for the survival over many decades of eighteenth century England’s no less universally vilified death-sentencing system --which likewise condemned many but executed few -- we offer some reasons for the minority’s success in wagging the majority.  In response to recent evidence of a (thus far largely counterproductive) majority backlash, we conclude by offering some suggestions about how the majority might require the minority of death-prone communities to bear more of the costs of their death-proneness without increasing the risk of miscarriage of justice.

August 26, 2011 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (6) | TrackBack

Feds seeking (within-guideline) sentence of 70-80 months for high-profile insider trader

As detailed in this Bloomberg piece, "Craig Drimal, the former Galleon Group LLC trader who pleaded guilty to insider-trading charges, should get a prison term of 70 to 80 months, which is within federal sentencing guidelines, the U.S. said in a court filing."  Here is more about this high-profile white-collar case, which is scheduled for sentencing next week:

Drimal, 55, pleaded guilty in April in federal court in New York charges of conspiracy and securities fraud. Drimal admitted that he and others at Galleon traded on inside information obtained from lawyers working on transactions involving 3Com Corp. and Axcan Pharma Inc. in 2007.  Drimal said the information was obtained from Arthur Cutillo and Brien Santarlas, lawyers at Boston-based Ropes & Gray LLP.

Drimal has suggested that the court impose community service or home confinement in lieu of a “substantial” prison term, prosecutors said.  The request should be denied in order to send a “strong message of deterrence to others in the hedge fund community” and because the “nature and extent of his criminal conduct doesn’t warrant community service,” prosecutors said.

“Drimal has no excuse for his illegal conduct,” prosecutors said in the sentencing memo, which was filed yesterday.  “He grew up in a stable, loving family with no financial difficulties.  He is a college graduate.  He has a loving and supportive family.  He fully understood that insider trading was illegal and yet repeatedly disregarded the law to make a lot of money.”...

Drimal’s attorney, Jane Anne Murray, said she filed a memorandum last week asking the judge impose a sentence below the federal guidelines. “We’re not surprised by their position; it’s been consistent,” Murray said in a phone interview.  “We disagree with the government on a number of issues including the applicable guidelines.  And we’re seeking a sentence that is substantially lower than the one the government is seeking.”

August 26, 2011 in Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

Bill to put California death penalty on ballot stalls

As detailed in this local piece, which is headlined "California Death Penalty Won't be on Ballot," a state bill "that would have allowed voters to decide whether or not to get rid of the death penalty was killed on Thursday, sort of." Here is more:

SB 490 would have eliminated the death penalty and replaced it with life in prison without the possibility of parole. The Assembly Appropriations Committee was supposed to vote on SB 490 on Thursday but the bill’s author, Sen. Loni Hancock (D-Oakland), withdrew the bill because, “The votes were not there.”

Despite the move, Hancock said she still believes in the bill, "The death penalty is not tough on crime. It's tough on the tax payers.”... Hancock added that money could be better spent on things like education, keeping police on the streets, and infrastructure.

The death penalty was approved by voters in 1978, and if SB 490 had been approved it would have gone back to the voters.... Even though the bill was withdrawn, Gov. Jerry Brown made somewhat of a statement about SB 490 and said that he would be in favor of it going to a vote of the people.

August 26, 2011 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

August 25, 2011

Split Florida Supreme Court finds fundamental due process error with sentencing judge's "round-up" policy

The Florida Supreme Court has a notable little sentencing ruling today in Cromartie v. Florida, No. SC09-1868 (Fla. Aug 25, 2011) (available here), that perhaps math majors should enjoy even more than others: the case concerns a sentencing judge's policy to round-up a suggested prison term to a whole number based on the applicable state guideline score.  In this case, the defendant ultimately "scored" a sentence of 6.16 years under the applicable guidelines, but the sentence judge gave him 7 years in prison based on her "round-up" policy.

A majority of the Florida Supreme Court found troublesome this approach to sentencing, and here is the key concluding paragraph from the per curiam majority opinion:

Here, the sentence imposed was within the legal guidelines — it was above the minimum required by the scoresheet and below the statutory maximum, but the trial judge’s stated policy "improperly extended" Cromartie’s incarceration in an arbitrary manner.  Because we find that this policy of "rounding up" violated Cromartie’s right to due process, we quash the decision below and remand with directions that the trial court be directed to enter a sentence at the bottom of the guidelines and consistent with the reasoning we have expressed herein.

Two Justices dissented, and the Chief Justice expressed the disagreement on these terms:

Because I conclude that the comments of the sentencing judge which are at issue here do not constitute fundamental error, I dissent.  The minor impact of the sentencing judge’s "rounding-up" methodology on Cromartie’s sentence does not rise to the level of error "that affects the determination of the length of the sentence such that the interests of justice will not be served if the error remains uncorrected."  Maddox v. State, 760 So. 2d 89, 100 (Fla. 2000).

We have warned that the fundamental error doctrine applies only rarely, Harrell v. State, 894 So. 2d 935, 941 (Fla. 2005) — that is, "where a jurisdictional error appears or where the interests of justice present a compelling demand for its application." Smith v. State, 521 So. 2d 106, 108 (Fla. 1988).  The error asserted here is not of this magnitude. Although I do not agree with the First District’s characterization of the asserted error here as "a denial of due process," I agree with the First District’s decision to affirm the sentence.  Cromartie v. State, 16 So. 3d 882, 883 (Fla. 1st DCA 2009).

August 25, 2011 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

"Deterrence key issue" says editorial about Fumo case, but just how much prison time is needed to deter?

The Scranton Times-Tribune has this new editorialresponding to the decision by the Third Circuit to reverse and remand the 55-month sentence given to former corrupt state pol Vincent Fumo.  The piece is headlined "Deterrence key issue," and here are excerpts:

As U.S. District Judge Ronald Buckwalter sentenced Vincent Fumo in 2010, it was hard to tell whether the former state senator from Philadelphia had been convicted of 137 fraud and obstruction of justice crimes against the people of Pennsylvania or a traffic violation.

After praising Mr. Fumo for his "good works," Judge Buckwalter sentenced him to 55 months in federal prison, far below the sentencing guidelines based on the offenses, including millions of dollars in fraud and destruction of evidence.

Tuesday, a majority of a three-judge panel of the U.S. 3rd Circuit Court of Appeals found that Judge Buckwalter owes an explanation for his leniency. The prosecution claimed in its appeal that Judge Buckwalter had failed to properly calculate $4 million worth of fraud by Mr. Fumo in abandoning the sentencing guidelines.

That doesn't necessarily mean that Mr. Fumo will receive a higher sentence from Judge Buckwalter, even though Judge Julio Fuentes wrote: "This evidence of Fumo's intent to divert the funds was overwhelming, and the district court's refusal to apply a two-level enhancement was an abuse of discretion." Prosecutors had sought a sentence of at least 121 months....

In corruption-plagued Pennsylvania, the ultimate outcome of this case is very important for the sake of deterrence. Several state legislators await trial on state charges. State Sen. Jane Orie awaits retrial on local charges in Allegheny County. Former state Sen. Raphael Musto of Luzerne County has been charged with corruption by federal authorities, who also are investigating former state Sen. Robert Mellow.

It's unfortunate that the web of corruption in so many aspects of governance in the commonwealth must be unspun by federal prosecutors rather than by elected representatives. It's vital, for the sake of clean government, that the courts recognize the need for deterrence when sentencing those who abuse their public offices for personal gain.

I largely agree with the basic theme of this editorial -- namely that deterrence can and should be a key issue in the sentencing of corrupt public officials.  That said, I would hope that Fumo's now reversed sentence of "55 months imprisonment, a $411,000 fine, and $2,340,839 in restitution," would generally be a severe enough sanction to make public officials think twice before going crooked. Moreover, it is well known that the certainty and swiftness of a punishment often matter much more than severity in serving the goal of deterrence.

I do not mean these comments to be a blanket defense of the sentence that Fumo initially received.  But I do mean to highlight the difficulty of turning a general concern for deterrence into a specific sentencing outcome and also to question whether any pol is likely to be more deterred if (and when?) Fumo's prison term gets a little (or a lot) longer.

Related posts on Fumo sentencing and appeal:

August 25, 2011 in Booker in the Circuits, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Split Sixth Circuit panel reverses Ohio death sentence based on IAC at sentencing

As revealed via today's opinion in Foust v. Houk, No. 08-4100 (6th Cir. Aug. 25, 2011) (available here), yet another capital case has the judges of the Sixth Circuit in yet another disagreement over habeas review. Here is how the majority opinion in Faust (per Judge Moore) concludes:

Despite Foust’s gruesome crime, there is a reasonable probability that, had the three-judge panel heard the true horror of Foust’s childhood, at least one of the judges would not have sentenced Foust to death.  The Ohio Court of Appeals’s conclusion to the contrary was unreasonable, and the district court erred when it denied Foust’s petition.   On the issue of ineffective assistance of counsel, we REVERSE the judgment of the district court and GRANT a conditional writ of habeas corpus vacating Foust’s death sentence, unless the State of Ohio commences a new penalty-phase trial against Foust within 180 days from the date on which this judgment becomes final.

Here is how Chief Judge Batchelder's dissenting opinion in Faust begins:

This case involves heinous wrongdoing, both on the part of Foust and on the part of those who were charged with his care as a young child.  There is no doubt that Foust endured a truly horrific childhood. And I cannot disagree with the majority’s conclusion that his counsel performed deficiently for failing to conduct further investigation during the mitigation phase.  However, I do not agree with the majority that the Ohio Court of Appeals’ conclusion that Foust was not prejudiced as a result of his counsel’s performance was unreasonable.

August 25, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Sixth Circuit affirms 30-year sentence for CEO responsible for losses of over $2 billion

A notable white-collar appeal was resolved by the Sixth Circuit today via a lengthy opinion in US v. Poulsen, No. 08-4218 (6th Cir. Aug. 25, 2011) (available here).  Most of the 30-page opinion is about trial issues, though there is some notable discussion of loss calculations toward the end of the opinion.  In addition, this sharp paragraph at the very end of the opinion explains the panel's rejection of the defendant's substantive unreasonableness claim concerning his 30-year prison term:

Finally, Poulsen argues that his sentence was substantively unreasonable because the district court failed to properly consider unwarranted sentencing disparities.  Poulsen submits that he should not have been compared to the CEOs of infamous companies such as WorldCom and Enron.  He asserts that every defendant should receive an individualized assessment based upon the specific facts of his particular case.  Conversely, Poulsen cites a number of sentences given to those whom he refers to as “the most notorious financial fraudsters in corporate America.” These defendants received shorter sentences for similar crimes.  Poulsen inconsistently argues that he deserved individualized treatment and then compares himself to other corporate offenders.  Poulsen presents no coherent argument as to why his sentence is substantively unreasonable.  We affirm the district court’s sentence in all respects.

August 25, 2011 in Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

"Parents Blame Python Sentencing on Casey Anthony"

The title of this post comes from the headline of this local piece discussing a unique homicide case out of central Florida. Here is the explanation:

A man and woman in Central Florida are going to jail for manslaughter after their pet snake killed a toddler. And the man's attorney says it's all because of Florida mom Casey Anthony's acquittal....

Charles Darnell and Jaren Hare were both sentenced to 12 years in prison for manslaughter after 2-year-old Shaianna Hare was strangled to death by their pet python. Their defense attorney said the jury was influenced by what happened during the Anthony trial.  "The jury wanted to make an example after Casey Anthony," says Rhiannon Arnold, Charles Darnell's defense attorney.

This Orlando Sentinel piece, which is headlined "Reptile-loving couple sentenced to 12 years in prison in killer python case," provides more background on the case and the sentencing outcome:

Darnell, 34, and his live-in girlfriend, Jaren Hare, 21, faced a possible 45 years in prison for manslaughter and child neglect. They turned down a pretrial plea offer that would have capped their prison time at 10 years. They also will have to serve five years probation upon their release from prison.

Arnold's claim was brushed away by assistant state attorney Pete Magrino, who argued that the couple had "abdicated" their responsibility not only to 2-year-old Shaianna Hare but also to Gypsy, the 8-foot-6-inch Burmese python. "Unfortunately some criminal defense practitioners will say anything to justify in their own mind their position," Magrino said. "The jurors took an oath, and I firmly believe the jurors followed their oath with regard to this case and their findings of fact. The evidence presented to them in this case was overwhelming."

The couple's case was decided a week after jurors in Orange County found Anthony not guilty of murder in the death of her toddler daughter, Caylee. Arnold and fellow defense lawyer Ismael Solis Jr. called the death of Shaianna Hare a terrible "accident," pointing out the pet python had never attacked anyone in the home.

The toddler was bitten and strangled in her crib by the exotic constrictor snake which slithered from a glass tank in the couple's mobile home in Oxford, a rural community located about 60 miles northwest of Orlando. A medical examiner testified that the snake was trying to eat the child.

The snake, which, at 13 1/2 pounds, was grossly underweight, repeatedly escaped the 200-gallon tank, which had a quilt as a lid, before the fatal attack on July 1, 2009.  A snake expert testified during the couple's trial that an albino Burmese python of Gypsy's age should have weighed about 150 pounds....

Circuit Judge William "Bud" Hallman, who imposed the sentence on the couple, said he mulled over defense arguments that the tragedy could have happened to anyone who keeps a big dog, a horse or other large animal.

"Horses eat grass, they eat oats — that's different from a wild animal that unfortunately, based on the testimony, eats small mammals," he said.  "The child was a small mammal, which is on the menu for a wild animal, which a snake is."  The judge compared keeping the python to keeping an alligator in the house.

August 25, 2011 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack

August 24, 2011

"The Child Pornography Crusade and its Net Widening Effect"

The title of this post is the headline of this new article by Professor Melissa Hamilton, which is now available via SSRN. Here is the abstract:

The criminal justice system’s effort to combat child sexual exploitation has taken on a primary and aggressive focus toward prosecuting those who violate child pornography laws.  The deontological policy labels all child pornography offenders, whether they are producers or merely viewers, as morally bankrupt and a threat to the nation’s children.  Yet the basis for the policy bears fundamental flaws, and this article explores them.  The article first summarizes legislative efforts to bolster child pornography laws and lengthen sentences for violators.  It then provides a synthesis of criminal justice initiatives that are expending substantial resources targeted toward investigating, prosecuting, and punishing child pornography offenders.  The policy and the initiative rely on a presumption that child pornography consumers are in reality undetected pedophiles and child molesters who are at high risk of sexually abusing children.

This article challenges the presumption by comprehensively analyzing certain of the most commonly cited studies that purport to empirically support correlations between child pornography, pedophilia, and child molestation.  It also highlights other empirical evidence, as well as some practical considerations, that instead tend to show that most child pornography offenders are at low risk of committing contact sexual offenses.  In sum, the concentration on child pornography crimes appears to be a misinformed policy that fails to directly protect real children from harm. 

August 24, 2011 in Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (17) | TrackBack

Seventh Circuit judges explain their latest views on FSA pipeline cases

Regular readers know that district court and circuit courts have been struggling through (and splitting) on whether the new crack mandatory minimum sentencing provisions of the Fair Sentencing Act apply in cases involved offenses pre-dating the new law but not yet sentenced.  The Seventh Circuit was the first, and remains the only, circuit to rule expressly that the old harsher 100-1 mandatories still apply to these pipeline cases.  Today, though a set of opinions in US v. Holcomb, No. 11-1558 (7th Cir. Aug. 24, 2011) (available here), a number of Seventh Circuit judges explain at length their latest thinking on this issue in opinion that accompany an order refusing to reconsider this issue en banc.

There is a lot of interest in these opinion for those like me who have been following this debate closely.  Here are a few snippets, first from the end of Judge Easterbrook's 16-page opinion:

If the President wants to apply the lower min imum and maximum penalt ies to all cases, pending and closed, he has only to issue a general commutation. The pardon power permits the President to achieve retroactive lenience if he is willing to pay the political price. By contrast, the judiciary must implement compromises faithfully, even when most judge s wi sh that the political decision had been different. I have therefore voted not to hear these appeals en banc.

Now from the second paragraph of Judge Williams' 20-page opinion:

Our circuit should have heard this case en banc.  Three other circuits have ruled that judges no longer must impose unfair sentences after the Fair Sentencing Act.  This issue affects pending cases and many c ases to come in light of the five-year statute of limitations on drug prosecutions. There were equal votes to grant and deny rehearing en banc.  So our circuit’s law stands, and it is wrong.

Some prior posts on this FSA pipeline issue: 

August 24, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

"Psychopathy and Culpability: How Responsible is the Psychopath for Criminal Wrongdoing?"

The title of this post is the title of this new paper by Professor Reid Fontaine (and two co-authors), which is now available via SSRN.  Here is the abstract:

Recent research into the psychological and neurobiological underpinnings of psychopathy has raised the question of whether, or to what degree, psychopaths should be considered morally and criminally responsible for their actions.  In this article we review the current empirical literature on psychopathy, focusing particularly on deficits in moral reasoning, and consider several potential conclusions that could be drawn based on this evidence.  Our analysis of the empirical evidence on psychopathy suggests that while psychopaths do not meet the criteria for full criminal responsibility, they nonetheless retain some criminal responsibility.  We conclude, by introducing the notion of rights as correlative that even if psychopaths were to be fully non-responsible, it would still be warranted to impose some form of civil commitment.

August 24, 2011 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack

Montana death penalty process assailed as unconstitutional based on Sixth Amendment

As detailed in this local article, headlined "Attorney says death penalty unconstitutional," lawyers for a Montana double-murderer are pressing a Sixth Amendment attack on the state's administration of capital punishment.  Here are the details:

An attorney for accused double murderer Tyler Michael Miller argued that Montana’s death penalty statutes are unconstitutional Tuesday during a brief hearing in Flathead District Court.

Miller, formerly known as Cheetham, was arrested on Christmas Day 2010 hours after allegedly gunning down his ex-girlfriend Jaimi Hurlbert and her 15-year-old daughter, Alyssa Burkett.   Miller’s attorney Ed Sheehy reiterated his written arguments included in a June filing opposing the state’s practice of allowing judges rather than juries to issue capital sentences.

He also noted that Montana law dictates that there must be a presence of aggravating factors and an absence of mitigating factors for a court to pronounce the death penalty to a defendant.  “It is only when there are no such circumstances that the death penalty can be imposed and that is a decision that must be made by a jury and sadly not by the court alone,” Sheehy said.

One such mitigating factor potentially could be mental deficiency or disease, an avenue being explored by Miller’s defense.   Experts retained by Miller’s defense have concluded that Miller has long abused drugs and suffered from various mental disorders....

[District Judge Stewart] Stadler did not provide a timetable for when he might rule on Miller’s motion.   He said the timing of future rulings and hearings will be contingent on whether or not Miller is ruled competent to stand trial.  Two mental health professionals from the Montana State Hospital recently were scheduled to evaluate him.

This press report suggests that competency issues might get in the way of this case becoming an importance vehicle for exploring the echoes of the Supreme Court's Ring ruling concerning the impact of the Sixth Amendment on death penalty sentencing.  Also, I do not know if Montana's rarely-used death penalty is clearly problematic in light of Ring.  But I do know that eventually, the Supreme Court is going to have to address some of the Sixth Amendment questions raised but not resolved a decade ago in Ring.

August 24, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Uh-oh, looks like the internet is a gateway drug for teeenagers..

based a new study reported in this Chicago Tribune article which details that teens who use "social networks are considerably more likely to smoke, drink or use marijuana than teens who don't visit the sites."  Here is more from the press report:

The National Center on Addiction and Substance Abuse at Columbia University in New York found that teens who spend time on the social networks are likely to see images of their peers drinking or using drugs — images that could help to convince them that substance abuse is a normal, acceptable activity.

"We're not saying (social media) causes it," said Joseph Califano, the center's chairman. "But we are saying that this is a characteristic that should signal to (parents) that, well, you ought to be watching."

The findings are in keeping with a new wave of research into how social networks might affect teen decision-making. Several studies have suggested that Facebook, Myspace and other sites have created a new form of peer pressure, exposing young people to risky behaviors they could be tempted to emulate.

That conclusion rings true to some teens and parents. "The Internet puts it in your head," said Dana Cichon, 16, a junior at Bartlett High School. "You think everyone else is having more fun than you."

But some experts warn that the research, like social media itself, is still in its infancy, and that the correlation between social networking and teen substance abuse could be disguising more relevant risk factors. Others contend that bad influences in the real world are much more potent....

The National Center on Addiction and Substance Abuse does an annual survey to track teens' attitudes on drinking, smoking and drug abuse, and this year it added questions about social media. It found that, compared to young people who avoid the sites, teens who regularly visit them are twice as likely to use marijuana, three times more likely to drink alcohol and five times more likely to use tobacco.

The survey also found that about half of those who use social media have seen online pictures of teens getting drunk or high or passed out, Califano said. Many saw the images before age 14. "I think there's no question there's a relation there," he said.

Other research has also suggested a link between social media and teen substance abuse. Dana Litt, a psychologist at the University of Washington in Seattle, did an experiment last year where she showed teens Facebook profiles that depicted adolescents drinking. "I found that even in a fairly brief exposure … individuals who saw these alcohol images said they were more willing to get drunk in the future and thought the type of person who got drunk was more favorable," she said.

While she cautioned that more research is needed — something other than social media could turn out to be the true risk factor — she said the sites might indeed have an outsize influence on what teens think is normal. "Instead of simply knowing what your best friends do, you can see what your 500 Facebook friends do," she said. "I think that it might possibly change their ideas of how common behavior is."...

Myspace did not respond to a request for comment, but a spokesman for Facebook said the site removes content that promotes illegal drug use when its reviewers become aware of it. The company also referred to the work of Mike Males, a researcher at the Center on Juvenile and Criminal Justice in San Francisco who is unconvinced of the link between social media and teen substance abuse.

Males said the research hasn't sufficiently controlled for other factors that could prove far more decisive, such as a parent's use of drugs or alcohol. "I'm not discounting that media may play a part … but you have to assess how important a factor that is when teenagers see drunken people in their real lives," Males told the Tribune. "That's something the studies don't address."

Obviously, with tounge-in-my-cheek, I think the only proper response to this troublesome study would be for legislators to make all social media illegal and also to create special sentencing provisions providing strict mandatory minimums for anyone who might seek to expose any teenagers to social media.  (Though I am joking here, my facetious legislative proposal sadly does echo how in other settings some lawmakers respond to any evidence that something new might be somehow hurting kids.)

August 24, 2011 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (67) | TrackBack

August 23, 2011

Florida Supreme Court approves state's new execution protocol

As detailed in this UPI report, "Florida's Supreme Court ruled Tuesday a barbiturate can be used in the state's lethal injection cocktail and the execution of a convicted killer can proceed." Here is more:

The drug, pentobarbital, came into question when lawyers representing Manuel Valle, who was scheduled to be executed Aug. 2, argued that the use of the drug could constitute cruel and unusual punishment...

A Miami-Dade judge rejected the argument, but the Florida Supreme Court postponed the execution so Circuit Judge Jacqueline Hogan Scola could hold a hearing on the effectiveness of pentobarbital....  The high court ruled Tuesday that the use of the drug is constitutional and declined to hear oral arguments.

Valle, who was convicted and sentenced to death for the 1978 shooting and killing of a Coral Gables police officer, is now scheduled to be executed Sept. 1.

The per curiam unanimous opinion in this case from the Florida Supreme Court runs 43 pages and can be accessed at this link.

August 23, 2011 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Split Seventh Circuit panel decides Padilla v. Kentucky is not retroactive

Interesting ruling today by a split Seventh Circuit panel today in Chaidez v. US, No. 10-3623 (7th Cir. Aug. 23, 2011) (available here), starts this way:

In Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), the Supreme Court held that an attorney provides ineffective assistance of counsel by failing to inform a client that a guilty plea carries a risk of deportation.  The district court concluded that Padilla did not announce a new rule under the framework set forth in Teague v. Lane, 489 U.S. 288 (1989), and consequently applied its holding to Petitioner Roselva Chaidez’s collateral appeal.  Because we conclude that Padilla announced a new rule that does not fall within either of Teague’s exceptions, we reverse the judgment of the district court.

A lengthy dissent by Judge Williams begins this way:

At the time Roselva Chaidez, a lawful permanent resident since 1977, entered her plea, prevailing professional norms placed a duty on counsel to advise clients of the removal consequences of a decision to enter a plea of guilty.  I would join the Third Circuit in finding that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), simply clarified that a violation of these norms amounts to deficient performance under Strickland v. Washington, 466 U.S. 668 (1984). See United States v. Orocio, ___ F.3d __, 2011 WL 2557232 (3d Cir. June 29, 2011).  As such, Padilla did not announce a “new rule” under Teague v. Lane, 489 U.S. 288 (1989), and is therefore retroactively applicable to Chaidez’s coram nobis petition seeking to vacate her guilty plea on the grounds that her counsel was ineffective.  For the reasons set forth below, I dissent.

In the wake of this ruling on the heels of a contrary ruling by the Third Circuit, it would seem like the question going forward is not whether, but just when and how the Supreme Court will take up and resolve this issue.

August 23, 2011 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

What sentence is deserved (and not disparate) for mass horrific stash of downloaded kiddie porn?

The question in the title of this post is prompted by this eye-pooping local story out of Ohio, which is headlined "More than 177,000 child-porn images found at London man's home."  Here are the details:

A London man has been charged with possession of what a prosecutor describes as the largest cache of computerized child pornography ever uncovered in Madison County.

Donald Lemasters, 43, was charged with 15 counts of pandering sexually oriented material involving minors, nine counts of possessing sexually oriented material involving minors and one count of possession of criminal tools.

Assistant Prosecutor Eamon Costello said authorities found more than 177,000 images of nude children and minors involved in sexual activities on a computer and CDs at Lemasters’ home.  Lemasters is not accused of producing the pornography....

Lemasters appeared yesterday in Madison County Common Pleas Court. Judge Robert D. Nichols released Lemasters on his own recognizance and placed him under house arrest.

Madison County Prosecutor Steve Pronai said the case is easily the worst he has handled. “This is some of the most disgusting stuff I have ever seen. You can’t even look at it,” he said. “We’re talking just babies here.”

He said a Franklin County task force that trolls the web to target child pornographers received a hit on a file-sharing website that linked thousands of images to Lemasters.

Regular readers are surely aware of examples of federal defendants getting sentences that run into decades for downloading only a few hundred picture of the worst kidde porn, and the enhancements that are imposed under the federal sentence guidelines based on the number of images top out at 600.  How then should the criminal justice system (and in this case it for now appears to be the Ohio state system) deal with an offender who has literally hundreds of thousands of more images?

August 23, 2011 in Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Rick Perry's death penalty record already a topic of press coverage inside the Beltway

I pondered in this post last week whether and when the GOP might start debating Texas crime and punishment now that Governor Rick Perry is in the 2012 Presidential race.  Though Texas justice is not yet a topic of conversation on the GOP campaign trial, this new Washington Post article, headlined "Rick Perry holds the record on executions," reveals that the media inside the Beltway is already buzzing about Perry's death penalty record.  Here are excerpts from the extended piece:

Texas Republican Gov. Rick Perry brings to the presidential race a law-and-order credential that none of his competitors can match — even if they wanted to. In his nearly 11 years as chief executive, Perry, now running for the GOP presidential nomination, has overseen more executions than any governor in modern history: 234 and counting. That’s more than the combined total in next two states — Oklahoma and Virginia — since the death penalty was restored 35 years ago.

The number is partly explained by sheer longevity at the helm of a huge state that has mastered the complicated legal maze of carrying out capital punishment. But Perry has hardly shrunk from the task.

As the 2012 presidential race unfolds, Perry’s record will inevitably become part of the debate in a country where the number of death sentences handed down continues to fall, and some states are renouncing executions.  Polls show that capital punishment remains both popular and controversial.  And although all of Perry’s main competitors, including President Obama, support the death penalty, Perry’s role stands out.

He vetoed a bill that would have spared the mentally retarded and sharply criticized a Supreme Court ruling that juveniles were not eligible for death.  He has found during his tenure only one inmate on Texas’s crowded death row he thought should receive the lesser sentence of life in prison.

And Perry’s role in the 2004 execution of Cameron Todd Willingham — who supporters said should have been at least temporarily spared when experts warned that faulty forensic science led to his conviction — is still the subject of investigation in Texas.

Perry has been unapologetic. “If you don’t support the death penalty and citizens packing a pistol, don’t come to Texas,” he wrote in his book lauding states’ rights, “Fed Up!” 

It is a bipartisan tradition.  The annual rate of executions was actually higher when George W. Bush was the state’s governor, and Democratic Gov. Ann Richards oversaw 50 executions during her four-year term without ever granting clemency.  “In the big picture, it is hard to see how Perry is much different from Bush or Richards,” said Jordan Steiker, co-director of the University of Texas Law School’s Capital Punishment Center.

That’s partly because Texans and their representatives give governors little room to slow down the process.  Decisions to seek the death penalty are made by local prosecutors. Unlike in some states, the governor does not sign death warrants or set execution dates. The state constitution forbids the governor from calling a moratorium on executions and allows clemency only when the Board of Pardons and Paroles recommends it.  Which is rarely.

Texas’s relatively streamlined process for death penalty appeals is overseen by an elected court not known for reversals.  Federal lawsuits go to the U.S. Court of Appeals for the 5th Circuit in New Orleans, which has the same reputation.

“In many states, executions are blocked because the state courts, the federal courts or both are intensely hostile to capital punishment and look for any excuse to overturn convictions,” said Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation in California. “So the short answer to why Texas has the most executions is (1) size, and (2) not being obstructed by hostile courts.”...

Perry’s lone clemency decision — aside from halting executions of the mentally retarded and juveniles dictated by the Supreme Court — came in the case of a man who drove the getaway car and was not the triggerman in a murder.  Perry called for the legislature to reexamine the law, but it has not been changed.

After Perry signed a law offering life without the possibility of parole as an alternative to the death penalty, the total number of death sentences in Texas dropped, as it has in other states, from 23 in 2004 to eight in 2010, according to the anti-capital punishment Death Penalty Information Center....

On the campaign trail last week, Perry was asked how he defended the cost and inefficiency of the death penalty.  He said it was a decision to be made by states, and “in the state of Texas, our citizens have clearly said that they support by overwhelming majority capital punishment.”

If others disagree, he said, they should try to pass a constitutional amendment to halt the death penalty.  “I just lay it out there as an issue for Americans,” he said. “I will suggest to you that I’m going to work a whole lot harder on a balanced budget amendment to the United States constitution than I am for an amendment that will ban capital punishment.”

Some related posts:

August 23, 2011 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

"Court orders resentencing of ex-Pennsylvania state senator"

The title of this post is the headline of this Reuters piece reporting on a high-profile Third Circuit ruling today in a high-profile corruption case. Here are the details:

A federal appeals court on Tuesday ordered the resentencing of a former Pennsylvania state senator, saying the trial judge erred in his sentencing of the once powerful former politician.

Former State Senator Vincent Fumo was sentenced to 55 months in a minimum-security federal prison after he was convicted in March 2009 of 137 charges of fraud, tax evasion and obstruction of justice.

The Democrat's conviction was upheld by the Third Circuit Court of Appeals on Tuesday, which ordered the resentencing.  In an unusual move, prosecutors in May argued that Fumo should be resentenced to up to 27 years in prison, saying U.S. District Court Judge Ronald Buckwalter had been too lenient and did not explain why he sentenced Fumo to below federal sentencing guidelines.

In a statement, U.S. Attorney Zane David Memeger said: "We are pleased with the decision of the Third Circuit Court of Appeals and will prepare for the next step in the process."...

Fumo's lawyers had argued that the sentencing judge committed "no significant procedural error" and noted the court had ordered Fumo to pay a fine of $411,000 and more than $2.3 million in restitution.  His attorneys also added that Buckwalter found Fumo had worked hard for the public, warranting a departure from sentencing guidelines.

The full opinion in US v. Fumo, No. 09-3390 (3d Cir. Aug. 23, 2011) (available here), runs 84 pages, though the last 22-pages is made up by a dissent by Judge Nygaard on the sentencing issues.  I hope to have more comments on these opinions when I get to consume them fully.

August 23, 2011 in Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

Peculiar(?) concurrence in Eighth Circuit panel's affirmance of top-of-guideline sentence

The Eighth Circuit has an intriguing little reasonableness ruling today in US v. Wohlman, No.10-2967 (8th Cir. Aug. 23, 2011) (available here), which gets started this way:

Thomas Wohlman pleaded guilty to one count of attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b).  The district court sentenced Wohlman to 121 months' imprisonment, the top of the Guidelines range.  On appeal, Wohlman argues that the district court committed several procedural errors and imposed an unreasonable sentence.  He also argues that his sentencing counsel was ineffective for failing to object to an upward departure under U.S.S.G. § 2G1.3(b)(2)(A).  We affirm Wohlman's sentence and decline to reach the merits of Wohlman's ineffective-assistance-of-counsel claim.

The opinion covers a lot of modern sentencing review ground, but the ruling seemed to me especially blog-worthy because of Judge Bright's brief concurrence.  Here is the full text of that concurrence:

I can find no error in the sentencing process or the actual sentence of ten years and one month, the top of the guidelines.  Accordingly, I concur.

Yet, I write to note that no molestation of any young person actually occurred. The conversations Wohlman had about sex with minor females took place with government agents who posed as minor females.

Wohlman has no felony convictions and operates an apparently successful business.  A qualified expert witness testified that Wohlman was unlikely to reoffend and that he was not a predator.  The district judge, however, gave little weight to testimony.  Although the sentence at the top of the guidelines stands approved, this judge suggests that this sentence is harsh considering the entire record and defendant’s background.

Notwithstanding Judge Bright's initial assertion that he could find no error in the sentence, he seems to be saying with the rest of his brief opinion that he views the top-of-guideline prison term to be "greater than necessary to comply with the purposes set forth" in federal sentencing law in 18 USC 3553(a)(2).  To me that amounts to a judgment, in Judge Bright's view, that there is error in the sentence as being substantively unreasonable.  

To the extent that the Supreme Court has indicated that substantive reasonableness review remains important and distinct from procedural reasonableness review after Booker, this form of review would seem to be precisely about circuit judges making judgments that district court imposed too harsh (or too lenient) a sentence in light of congressional sentencing purposes.  In other words, I see Judge Bright's concurrence to be peculiar because he seems to be expressing a strong substantive disagreement with the sentence below and yet also seems of the view that this substantive judgment is not a proper part of reasonableness review.

August 23, 2011 in Booker in the Circuits, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

Is "decision fatigue" a big problem in sentencing decision-making? If so, what should be done?

The question in the title of this post are prompted by this fascinating piece that appeared in this past weekend's New York Times magazine discussing the problems posed by "decision fatigue."  Notably, the piece began with a compelling sentencing story:

Three men doing time in Israeli prisons recently appeared before a parole board consisting of a judge, a criminologist and a social worker.  The three prisoners had completed at least two-thirds of their sentences, but the parole board granted freedom to only one of them.  Guess which one:

Case 1 (heard at 8:50 a.m.): An Arab Israeli serving a 30-month sentence for fraud.

Case 2 (heard at 3:10 p.m.): A Jewish Israeli serving a 16-month sentence for assault.

Case 3 (heard at 4:25 p.m.): An Arab Israeli serving a 30-month sentence for fraud.

There was a pattern to the parole board’s decisions, but it wasn’t related to the men’s ethnic backgrounds, crimes or sentences.  It was all about timing, as researchers discovered by analyzing more than 1,100 decisions over the course of a year.  Judges, who would hear the prisoners’ appeals and then get advice from the other members of the board, approved parole in about a third of the cases, but the probability of being paroled fluctuated wildly throughout the day.  Prisoners who appeared early in the morning received parole about 70 percent of the time, while those who appeared late in the day were paroled less than 10 percent of the time.

The odds favored the prisoner who appeared at 8:50 a.m. — and he did in fact receive parole.  But even though the other Arab Israeli prisoner was serving the same sentence for the same crime — fraud — the odds were against him when he appeared (on a different day) at 4:25 in the afternoon.  He was denied parole, as was the Jewish Israeli prisoner at 3:10 p.m, whose sentence was shorter than that of the man who was released.  They were just asking for parole at the wrong time of day.

There was nothing malicious or even unusual about the judges’ behavior, which was reported earlier this year by Jonathan Levav of Stanford and Shai Danziger of Ben-Gurion University.  The judges’ erratic judgment was due to the occupational hazard of being, as George W. Bush once put it, “the decider.”  The mental work of ruling on case after case, whatever the individual merits, wore them down.  This sort of decision fatigue can make quarterbacks prone to dubious choices late in the game and C.F.O.’s prone to disastrous dalliances late in the evening.  It routinely warps the judgment of everyone, executive and nonexecutive, rich and poor — in fact, it can take a special toll on the poor.  Yet few people are even aware of it, and researchers are only beginning to understand why it happens and how to counteract it.

Decision fatigue helps explain why ordinarily sensible people get angry at colleagues and families, splurge on clothes, buy junk food at the supermarket and can’t resist the dealer’s offer to rustproof their new car.  No matter how rational and high-minded you try to be, you can’t make decision after decision without paying a biological price.  It’s different from ordinary physical fatigue — you’re not consciously aware of being tired — but you’re low on mental energy.  The more choices you make throughout the day, the harder each one becomes for your brain, and eventually it looks for shortcuts, usually in either of two very different ways.  One shortcut is to become reckless: to act impulsively instead of expending the energy to first think through the consequences.  (Sure, tweet that photo! What could go wrong?)  The other shortcut is the ultimate energy saver: do nothing.  Instead of agonizing over decisions, avoid any choice.  Ducking a decision often creates bigger problems in the long run, but for the moment, it eases the mental strain. You start to resist any change, any potentially risky move — like releasing a prisoner who might commit a crime.  So the fatigued judge on a parole board takes the easy way out, and the prisoner keeps doing time.

August 23, 2011 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

August 22, 2011

Former drug chain CEO gets 3-year (way-below-guideline) prison term

This Bloomberg news report, headlined "Ex-Duane Reade CEO Cuti Gets Three Years in Prison for Inflating Earnings," can be spun lots of different ways because the white-collar defendant received a significant, but way-below-guideline, prison term for corporate fraud.  Here are the interesting details:

Former Duane Reade Inc. Chief Executive Officer Anthony Cuti was sentenced to three years in prison for falsely inflating income and misleading investors.  Cuti, 65, of Saddle River, New Jersey, was convicted in June 2010 of conspiracy and securities fraud after a federal jury trial in Manhattan.  U.S. District Judge Deborah Batts also ordered Cuti today to pay a $5 million fine.

Batts called Cuti “a gifted, arrogant, driven, entitled individual” who “bullied people into committing fraudulent acts to make the company look better than it actually was” to increase his pay.

Batts said Cuti was also guilty of “the height of hubris” for re-writing his employee compensation plan that would allow him to double his compensation even if he was fired for cause, which later occurred, she said.  

Cuti didn’t admit any wrongdoing when he spoke in court before the sentence was imposed. “I’ve always led my life with integrity,” Cuti said as his wife, adult daughter and brother sat in the courtroom.... “I always thought I acted for the shareholders first and foremost,” he said. “I’d like to say I’ve had a good career. It was a good run. The conviction is so at odds with what I’ve tried to be.”

Cuti’s lawyer, Reid Weingarten, today asked Batts to impose no jail time and allow his client to remain free to perform public service.  “It will be devastating if he’s sent away,” he said.  “He was not a guy motivated by greed and driven to line his pockets,” said Weingarten.  Investors weren’t harmed, he argued, saying they’d profited from Cuti’s transformation of Duane Reade from “a sleepy nearly-bankrupt drug store on a Manhattan street corner to being a force to be reckoned with.”

Former Duane Reade Chief Financial Officer William Tennant, who was tried with Cuti and convicted of one count of securities fraud, is scheduled to be sentenced Aug. 29.  The U.S. said both men engaged in a scheme to falsely increase revenue and lower expenses from 2000 to 2005.

U.S. Probation Department officials calculated that Cuti had faced a term from 17 1/2 years to as long as 21 years and eight months in prison.  The agency recommended an unspecified lesser prison term be imposed, court records show....

“The offenses here were very serious, they went on for four and a half years and involved continuous, almost daily conduct by the defendant to inflate earnings of the company,” Assistant U.S. Attorney Jonathan Streeter said today.  “It was ongoing, it was continuous, it was deliberate and it was calculated.”

Batts directed Cuti to surrender to U.S. Bureau of Prisons officials on Jan. 31. She denied a bid by Weingarten to allow him to remain free on bond pending his appeal....

Cuti received more than $50 million from Duane Reade and Oak Hill from 2000 through 2005, including $25 million from the 2004 acquisition by Oak Hill, prosecutors said.  Cuti left the company in 2005.

The feds can now surely crow a bit about having "crime in the suites" result in serious prison time here, as they do in this press release.  And yet, in light of the apparently severe guideline calculation, Cuti and his counsel have to be somewhat thankful he is looking at only about 31 months in club fed after time off for good behavior.

August 22, 2011 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (3) | TrackBack

NYC prosecutors now seeking to dismiss rape charges against DSK

This new AP story, headlined "Prosecutors seek to dismiss Strauss-Kahn charges," provides the latest notable twist on a high-profile (and now soon to be over) state criminal prosecution.  Here is how the story starts:

New York City prosecutors filed court papers Monday recommending dismissal of sexual assault charges against Dominique Strauss-Kahn, who was accused of attacking a hotel maid in May in a globally sensational case that eventually dissolved amid questions about the woman's credibility.

The accuser, Nafissatou Diallo, and her attorney, Kenneth Thompson, met briefly with representatives of the Manhattan district attorney's office to discuss the decision not to proceed with the prosecution. Thompson didn't say what had happened inside or reveal what his client was told, but he recited a short statement condemning prosecutors for their handling of the case.

"Manhattan District Attorney Cyrus Vance has denied the right of a woman to get justice in a rape case," he said.  "He has not only turned his back on this innocent victim.  But he has also turned his back on the forensic, medical and other physical evidence in this case."

A person familiar with the case earlier told The Associated Press that prosecutors had concerns about Diallo's credibility and insufficient evidence of forced sexual encounter. The person spoke on the condition of anonymity.  Diallo is also suing Strauss-Kahn, seeking to make him pay financially if not with his freedom, a move that the diplomat's lawyers said also eroded her credibility.

Prosecutors filed paperwork with the court Monday recommending that the charges be dismissed.  The document was not immediately made available to the public, so the district attorney's reasons for asking for the dismissal were not known.

Strauss-Kahn is scheduled to go before a judge Tuesday.  His lawyers, William Taylor and Benjamin Brafman, issued a statement saying that he and his family were grateful for the decision.

Among other lessons, this case now becomes a significant example of how merely an arrest and a criminal charge can have profound social and personal consequences, especially in high-profile settings involving high-profile people.

Prior posts on DSK charges:

August 22, 2011 in Celebrity sentencings, Collateral consequences, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

WSJ takes note of the mess that is Florida's (now unconstitutional) criminal drug laws

I have been a bit surprised to have not yet seen much mainstream discussion of the mess unfolding in Florida where a federal district judge (blogged here) and a state circuit judge (blogged here) have recently declared the state's criminal drug laws facially unconstitutional.  I am now pleased to see this new Wall Street Journal article and WSJ Law Blog entry showing that some folks in the MSM are paying attention.  Here are the basics of the story via the blog post:

To win a conviction under the drug laws of most states, a prosecutor has to convince a jury that the defendant knew he owned or sold an illicit substance. But in 2002, Florida became the only state in the country to do away with the “knowledge requirement” in its main drug law.

A federal judge in Orlando was the first to strike a blow to the law late last month, ruling that a central part of Florida’s Drug Abuse Prevention and Control law violated the 14th Amendment’s Due Process Clause. Then, last week, a state judge in Miami cited Judge Scriven’s opinion in overturning the drug-distribution convictions of 39 defendants....

The office of the Florida Attorney General, Pam Bondi, has filed notices of appeals in both cases. “This decision conflicts with binding state court precedent upholding Florida’s drug law,” said Bondi, shortly after Judge Hirsch issued his ruling on Wednesday. “This decision is flawed and it unduly hinders prosecutors’ efforts to keep criminals off our streets.”

The issue will likely be settled by a higher court — the Florida Supreme Court, the 11th U.S. Circuit Court of Appeals or, possibly, the U.S. Supreme Court. It is unlikely that Florida will see a mass exodus of its prison population until then. But if the key part of the law is ultimately struck down, “it could get pretty chaotic,” said James Felman, the lawyer for Mackle Vincent Shelton, whose conviction Judge Scriven overturned.

According to the Florida Department of Corrections, nearly 94,000 people have been sent to state prisons for drug crimes since the start of 2002. 

Recent related posts:

August 22, 2011 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Texas man gets 220-year state sentence for kiddie porn possession (and uncharged child rapes)

This local piece, headlined "220 years handed out in porn case; Stacked sentences are among longest in memory," discussing a (record-long?) Texas sentence has many interesting (and sad) elements concerning modern sentencing discretion and the justification for extremely long prison terms.  Here are the details:

A San Antonio man convicted by a jury in June of downloading hardcore prepubescent child pornography was ordered Friday to serve 220 years in stacked sentences — one of the longest punishments prosecutors said they could recall, locally or elsewhere.

Paul Joseph Lamarre, 43, initially faced up to 10 years in prison for each of the 22 counts of possession of child porn.  But convictions related to child exploitation and molestation are among the few crimes in Texas that judges are allowed to stack.

Prosecutors in Bexar County tend to ask for consecutive sentences only in “extraordinary” circumstances, and this one qualified as such, Assistant District Attorneys Patrick Ballantyne and Stephen Ahl said after state District Judge Maria Teresa Herr announced her decision. “This is not a man exploring the outer bounds of his sexuality,” Ballantyne said during closing arguments to the judge. “He is an active sexual predator.”

Prosecutors called two women to the stand who each tearfully recalled Lamarre molesting them between the ages of 5 and 13.  “It's pretty much ruined my life,” one of the women said, explaining that, among other things, Lamarre would put cash and lingerie in her drawer for her to wear during the rapes. “I suffer from severe, severe depression. I can't hold a stable relationship.”

The other woman recalled Lamarre filming her in the bathtub and waking up in the middle of the night with him on top of her, naked and with a video camera. “He stole my innocence from me,” she said.

But Lamarre had a lot of time to think about his actions while in jail, defense attorneys Richard Langlois and William Brooks countered, adding that he never got in trouble while free on bond.  Prosecutors initially offered Lamarre a five-year prison sentence as part of a plea agreement he rejected, Langlois pointed out.  That offer was made before child molestation allegations surfaced, prosecutors said.

Given the revelations during the punishment hearing, it was an “ideal time” to seek what amounts to life in prison without parole, District Attorney Susan Reed said. “It's not just possessing an image,” she said. “It's victimizing someone, and that leads to other things which we saw in this particular incidence where he's abusing young children.”

It seems to me that Lamarre did not really get 220 years as a sentence for possessing 22 images of child porn, nor that prosecutors sought stacked sentences because of his kiddie porn downloading.  Rather, it seem pretty clear based on this news report that Lamarre (deservedly) received an extremely long sentence because he molested two girls for nearly a decade.

As reported here, I am not all that troubled that Lamarre will rot the rest of his life away in a Texas prison.  But I wonder if others are troubled by the reality that his sentencing fate was really the result of crimes for which he was not formally charged and convicted.  I also wonder just (1) why prosecutors were willing to offer a plea deal of only five years without having investigated Lamarre's history, (2) why Lamarre decided to turn down such a deal given his history, and (3) whether this evidence of prior extreme molestation would have ever been unearched if Lamarre had taken the deal.

August 22, 2011 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

"Can Schools Punish Students for Posting Racy Photos Online?"

The question in the title of this post is the headline of this new Time column.  Here are excerpts:

Two Indiana girls — one 16, one 15 — took racy photos of themselves at a slumber party and posted them online. When their high school found out, it suspended the girls from participating in a certain amount of their extracurricular activities.  Can the school legally do that?

A federal district court in Fort Wayne, Ind., recently ruled that it cannot — because the punishment violated the girls' First Amendment rights.  The legal question of what rights students have to post provocative material on the Internet, and what rights schools have to restrict such postings, is still unsettled. But the Indiana decision is the second important ruling in recent months to strike a blow for students' online speech rights....

The Indiana ruling follows a June decision from the Philadelphia-based U.S. Court of Appeals in J.S. v. Blue Mountain School District, which held that a student could not be disciplined for posting a crude parody of her middle-school principal on MySpace. In that case, the court said that even if the parody was offensive — it presented the principal as a bisexual named M-Hoe with a sexual addiction and a child who looked like a gorilla — there was no reason to believe it would cause substantial disruption.

Taken together, the back-to-back Indiana and Pennsylvania rulings suggest two things. First, with the rise of the Internet, students are posting a lot of "crass foolishness," as the Indiana court tartly put it.  And second, that courts are correctly determining that, except in the most extraordinary cases, students have a constitutional right to do so.

Obviously, these cases have more to do with the First Amendment than with sentencing.  That said, I often view school discipline efforts as an example of kids getting "sentenced" by school officials.  Moreover, in the severity of federal kiddie porn sentencing, any ruling finding constitutional rights in the posting racy photos of underage persons seems noteworthy.

August 22, 2011 in Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Why Iowa is a state to watch for sentencing fans and researchers (as well as political junkies)

From straw polls to caucuses, political junkies know that Iowa is a special state in the election season.  But this recent article from the Des Moines Register, which is headlined "Hundreds of Iowa inmates could be released on ruling," highlights why sentencing fans also should be watching the state closely in the months ahead:

The Iowa Department of Corrections will have to parole or discharge hundreds and possibly thousands of Iowa inmates early - some of them dangerous - because of a recent Iowa Supreme Court ruling, a state official confirmed Thursday night.

Fred Scaletta, a spokesman for the department, said the department is recalculating the sentences of roughly 3,200 convicts whose time under corrections supervision is affected by the ruling last month. Officials plan to inform the Board of Corrections today at a meeting in Fort Dodge about the effects of the court decision.

The Iowa Supreme Court ruled unanimously in July that state law mandated that a convicted sex offender should receive credit for time served while under home supervision, even though he violated probation while at home....

Scaletta said that decision now applies to all defendants whose probation was revoked, regardless of their crime. "We just don't know how many there will be. We're having to do each defendant by hand," he said. "We're on it. We want to get this done as quickly as we possibly can." The department also must notify the defendants' victims.

A helpful reader altered me to this story and provided these follow-up statistics about the import and impact of what the Iowa Supreme Court has wrought:

The headline [of ther Register article] understates what is going to happen. The Iowa Department of Corrections is going to have to release the following (this is clipped from an email Iowa DOC sent to all County Attorneys last week):

Currently in Prison = 2,152
Currently in Prison and there are civil commitment issues needing addressed = 117
Currently on Work Release = 165
Currently on Parole = 1010
Total = 3,444

They have said this will happen “immediately or within a short time.”   [Because the Iowa] inmate count is 8775 ... within a short time the Iowa prison system is going to release approximately one quarter of the inmates ... [and] the parole rolls are going to drop by about 33%."

In other words, Iowa is about to have a court-ordered rapid experience with decarceration.  I think all persons concerned with both mass incarceration and crime rates ought to be keeping a very close watch on how all this new freedom in Iowa plays out. 

UPDATE:  Thanks to commentor Robert for tracking down the Iowa Supreme Court opinion causing the commotion in the Hawkeye State.  The unanimous opinion in Anderson v. Iowa, No. 09-0507 (Iowa July 29, 2011) (available here), gets started this way: 

“Ours not to reason why, ours but to read, and apply. It is our duty to accept the law as the legislative body enacts it.”  Holland v. State, 253 Iowa 1006, 1011, 115 N.W.2d 161, 164 (1962) (Thompson, J.).  In this case we must decide whether a convicted sex offender incarcerated after revocation of his probation is entitled to credit against his prison sentence for time spent living at home under supervised probation wearing an electronic monitoring device on his ankle.  The district court denied the credit, and a divided court of appeals affirmed.  Although it is counterintuitive to count days living at home against a state prison sentence, we conclude the plain language of Iowa Code section 907.3(3) (2007), requires credit for the time Anderson was committed to electronic monitoring and home supervision during his probation.  We therefore vacate the decision of the court of appeals, reverse the district court ruling, and remand for entry of an order providing that sentencing credit.

August 22, 2011 in Criminal Sentences Alternatives, Data on sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (6) | TrackBack

August 21, 2011

"Sentencing disparities in child-sex-assault cases point to double standard"

The title of this post is the headline of this intriguing piece appearing today in the Denver Post.   Here are excerpts:

Women in Colorado convicted of sexually assaulting a child in their care are far less likely to go to prison than men sentenced for the same crime.

A Denver Post analysis of sentencing data provided by the Colorado Judicial Branch shows that of the 2,128 men convicted of sexual assault on a child by a person in a position of trust from 2006 through 2010, more than 50 percent were sent to prison.  Of the 79 women convicted of the same felony offense, 38 percent went to prison. A little more than 39 percent of female defendants in that same period — 31 — were put on intensive supervised probation.  Less than 35 percent of men were given the same sentence.

Experts who have studied the issue say those statistics are mirrored nationwide and show a clear disparity between how male and female teachers, coaches and babysitters are treated when they are convicted of sexually abusing a child....

With women, the victim is often a young or teen male in her charge, and too often the abuse is seen as less traumatic and almost a badge of honor for the boy, said forensic psychologist Katherine Ramsland....  Ramsland and others who track sexual-assault cases involving both men and women say prosecutors are starting to understand that women caught preying on teens — both boys and girls — can do just as much damage as men and are pushing for judges to treat offenders of both genders equally....

Several studies show that males molested by female caregivers run a huge risk of becoming sex offenders in adulthood.  Also, 80 percent of male victims of female sexual abuse have been divorced, according to a study done by Stephanie Reidlinger, a law student at Regent University School of Law in Virginia Beach, Va.

Her study says that women who molest boys are most likely victims of abuse themselves. Reidlinger also says that many cases of woman-on-boy crimes are not reported at all, due in part to the media.  "Media outlets rarely use language to convey this type of sexual abuse as a traumatic crime," Reidlinger said. "While reports about male offenders quite often include words like 'predator' or 'monster,' reports of female crimes refer to the perpetrators as 'bombshells' or the conduct as a 'romp.' "...

To be sure, women who abuse children and who are also teachers, coaches and babysitters are a significant minority. In fact, only eight women either had their teaching credentials revoked or denied by the Colorado Department of Education from 2006 to the present because of sexual misconduct.  During that same period, 32 male educators were disciplined for the same reason, according to the department.

Prosecutors and defense lawyers also contend that the sentencing disparity between the genders could result from multiple factors, including prior history and likelihood of recidivism.  A 2005 study shows that females convicted of a sexual offense repeat the same offense only about 1 percent of the time.  The recidivism rate for male sex offenders is 13.4 percent.

That could play a role in determining whether a female offender should be sent to prison and, if she is, how long she should stay, said Larimer County District Attorney Larry Abrahamson.  "You look at the charges, you look at the level of threat that individual is causing the community and if that person is subjecting the victim to pretty significant trauma. You have to look at all of those factors," Abrahamson said.

Sex offenders also are subject to intense psycho-sexual evaluations that weigh whether that person is likely to recommit a sex crime, he said. "Those responses can determine what kind of punishment level you are seeking," Abrahamson said.

August 21, 2011 in Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (27) | TrackBack

Might California follow Texas and abolish all forms of juve LWOP?

As detailed in this recent CNN piece, this coming week the California legislature is to consider again a bill to eliminate life without parole for any and all juvenile offenders.  Here are the basics:

A controversial bill headed for a vote in California has stirred up conversation again about whether life sentences for juveniles need to be re-examined. Under the state bill, which received a key vote [last] Wednesday to allow it to head to the Assembly floor for a vote, some juvenile offenders would get the opportunity for release.

At the heart of the bill is a question that's been pondered by legal scholars, law enforcement and even the Supreme Court: Should juveniles who have committed crimes that led to a life prison sentence be given a second chance?

The bill, introduced by Sen. Leland Yee, D-San Francisco, would allow juveniles to ask a court to re-examine their sentences after they have served 15 years for their crime.  Yee, who is also a child psychologist, argues that at certain ages, kids don't have the full capacity to understand their crimes, and locking juveniles up without giving them a chance to show they have gained that capacity isn't the right answer.

This weekend brings editorials from some California papers vocally endorsing this bill to eliminate juve LWOP in the Golden State:

But this op-ed commetary from the Sacramento Bee has a different take, as evidenced by its headline: "Bill that would allow resentencing in heinous juvenile crimes is flawed."

August 21, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

"Bill for tough riot sentencing runs into millions"

The title of this post is the headline of this piece from The Independent discussing some consequences and costs of the legal responses to some of the recent rioting across the pond.  Here is how the piece starts:

The tough sentencing in the aftermath of the riots has led to outbreaks of unrest in prisons across the country, as new research for The Independent on Sunday reveals that the courts' approach to riot-related offences has piled millions of pounds on to the bill for running overcrowded prisons.

Figures show that some two-thirds of the 1,300 arrested following the disturbances were remanded in custody, at a total cost of almost £2m, according to figures provided by the Institute for Public Policy Research.  The IPPR calculates the average cost of an under three-month sentence is £2,245 per offender.

On top of this, research for The Guardian showed riot sentences were on average 25 per cent longer than for the same offences last year, meaning the 30 people so far given custodial sentences for theft or handling stolen goods were sent to prison for 5.1 rather than 4.1 months.

The IPPR figures suggest the difference would add over £20,000 to the cost of jailing these prisoners.  However, with the rate of imprisonment for rioting offences running at 70 per cent, compared with the 3.5 per cent of defendants remanded by magistrates in the whole of last year, the cost is expected to climb dramatically.

Concerns have also been expressed about the number of children arrested following the riots.  The latest figures suggest 17% of defendants facing riot-related charges in court were aged between 11 and 17 -- and, in some areas, up to a third of these were in council care.

Steve Gillan, general secretary of the Prison Officers Association, said: "We warned [the Government] about this potential, that the prison population could take off at any time, and we were ignored.  Our prisons can't be continually overcrowded, because when they are, our officers can't do the rehabilitation work they're employed to do; it just becomes warehousing."

August 21, 2011 in Scope of Imprisonment, Sentencing around the world | Permalink | Comments (3) | TrackBack

You make the call: should the feds be out in the Clemens case after one strike?

I am very interested in hearing the thoughts of commentors concerning whether Roger Clemens should be subject to trial again after federal prosecutors caused a mistrial through their misconduct at the start of his first trial.  This AP article, headlined "Prosecutors want another shot at Clemens trial," sets out the basic background:

Prosecutors pursing a perjury conviction against baseball star Roger Clemens acknowledge they made a critical error that ultimately doomed their high-profile trial but asked a judge for another chance to convict the pitching standout of lying about using performance-enhancing drugs.

The U.S. attorney's office for the District of Columbia filed arguments Friday disputing Clemens' position that a second trial would violate his constitutional protection against double jeopardy by making him face the same charges twice.  The filing is the prosecutors' first public admission of fault in the mistrial and first explanation of what went wrong.

The prosecutors wrote it was their duty to make sure that evidence was not included in their exhibits.  "The government accepts responsibility for its oversight, and regrets the burdens that error has placed on this court and defendant," they wrote, but argued the mistake was due to the press of other trial matters and was not intentional....

Clemens had argued the showing of the evidence was a deliberate ploy to invoke a mistrial because the prosecutors' case was going badly. But the prosecutors say their case remains strong and Clemens wants to "gain an unwarranted windfall from this inadvertent error."... "It is impossible to credibly assert that the government had a motive for derailing defendant's prosecution because it believed the case was going badly when the case was barely going," the prosecutors said.

Friday's filing was signed by assistant U.S. attorneys Steven Durham and Daniel Butler, the two prosecutors who conducted the trial, along with their boss, U.S. attorney for the District of Columbia Ronald Machen Jr. and a colleague from the office's appellate division. That suggests there has been no change in the prosecution team despite the error.

August 21, 2011 in Celebrity sentencings, Procedure and Proof at Sentencing | Permalink | Comments (22) | TrackBack