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September 17, 2011

"Fort Worth man gets life sentence in shoplifting case that ended in death"

The presidential candidacy of Texas Governor Rick Perry has brought extra attention to his state's record with capital punishment.  But this local Texas article reporting on the imposition of a life(!) sentence on a Walmart shoplifter has me hoping the media might find some time to ask Governor Perry some questions about some other aspects of Texas justice.  (Hat tip: Scott Henson from Grits for Breakfast.)

The title of this post comes from the the headline this Fort Worth Star-Telegram article, and here are the remarkable offense and sentencing details:

A 38-year-old man has been sentenced to life in prison in a shoplifting case that ended in the death of a Walmart employee.  Although William Alan Kennedy was never charged with causing the death of Bruce Florence, a Tarrant County jury found the Fort Worth man guilty of aggravated robbery for knocking Florence, 56, down while trying to run out of the Westworth Village Walmart with a stolen TV worth $348 on June 11, 2010.

Florence, who hit his head on the floor, was hospitalized and died June 20. The Tarrant County medical examiner's office, however, ruled that end-stage liver cirrhosis -- not the head injury -- caused Florence's death.

"After conscientious deliberations, the jury agreed that Kennedy's actions were a serious threat to Bruce Florence," Nelda Cacciotti, who prosecuted the case with Mark Thielman, said in a news release issued by the Tarrant County district attorney's office Thursday. "We hope that all shoplifters get the message that store thefts may have long-term consequences for the victim and the defendant."

The jury deliberated almost three hours before finding Kennedy guilty of aggravated robbery.  State District Judge Mike Thomas then sentenced Kennedy to life in prison. Kennedy has appealed the case....

Besides aggravated robbery, court records show that Kennedy was also convicted Wednesday on five state-jail-felony charges of theft of property in similar shoplifting cases in Fort Worth, four of which involved Walmarts.

The applicable Texas robbery law makes a robbery "aggravated"  if the defendant "causes serious bodily injury to another," but the potential Texas statutory punishment range for such a first-degree felony appears to be 5 years to life.  Given the fact that the defendant here, though apparently a serial shoplifter, did not obviously intend to seriously hurt the store employee who tragically died, I do not see the justification for maxing out this defendant's punishment to life in prison!?!  (I believe this particualr form of a life term includes the possibility of parole in Texas, though I also believe lifers in Texas are not even statutorily eligible for parole for 35 years!)  

September 17, 2011 in Offense Characteristics, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (8) | TrackBack

Record-long 50-year prison sentence for Medicare fraud imposed in Florida

As detailed in this Miami Herald article, late yesterday a "federal judge socked a convicted Miami healthcare executive with a 50-year prison sentence, the longest term ever imposed on a Medicare fraud offender."  Here are the notable details:

New York transplant Lawrence Duran once ran a multimillion-dollar mental health company in Miami, lobbied Congress for his industry and tooled around town in a Maserati. His next stop: federal prison — likely for the rest of his life.

On Friday, a federal judge slammed Duran, 49, with a 50-year prison sentence for orchestrating a staggering $205 million scam at his Miami-based chain of mental health clinics.   The sentence may end up being the longest prison term ever imposed on someone convicted of Medicare fraud.

Duran’s lawyer, Lawrence Metsch, had urged the judge to be realistic and give him a sentence between 20 and 25 years, arguing that 50 years means a “death sentence because he would die in prison.”  But the judge, after a three-day sentencing hearing, sided with the government’s push for the extraordinarily high sentence, saying there is a “critical need for deterrence against healthcare fraud” in South Florida, the nation’s capital of Medicare corruption.

Previously, the highest Medicare fraud sentence was 30 years — given in 2008 to a Miami physician, Ana Alvarez-Jacinto, convicted in an HIV-therapy scheme.

After the sentencing, Duran shook his lawyer’s hand and then smiled to tearful relatives, as he shuffled in shackles out of the courtroom escorted by U.S. marshals.  His ex-wife, Carmen Duran, and his only sibling, Kenia Duran Ramirez, said the judge’s sentence was not a “fair assessment” of the former executive’s life, saying his work for the mentally ill was “not all bad.”

This year, Duran and his girlfriend, Marinella Valera, co-owners of American Therapeutic Corp., pleaded guilty to a variety of conspiracy, fraud and money-laundering charges after they failed to reach plea deals with the Justice Department.  

Duran, in custody since his arrest last October, was probably his own worst enemy during the sentencing hearing. Although he showed remorse for running American Therapeutic as a criminal enterprise for eight years, he also admitted he tried to steal as much money as he could from the taxpayer-funded Medicare program.

His company collected $87 million in Medicare payments after submitting $205 million in bogus bills, which he generated by paying kickbacks to recruiters to supply patients suffering from dementia, Alzheimer’s and addictions.  He admitted they could not have benefited from his company’s purported group therapy sessions.  Justice Department attorney Jennifer Saulino called Duran a “cold, calculating man” who exploited both vulnerable patients and the government’s healthcare program for the elderly and disabled....

Duran’s girlfriend, Valera, 40, a therapist, is scheduled to be sentenced Monday. Prosecutors plan to urge the judge to give her a 40-year prison sentence.  A total of 34 people, including American Therapeutic employees, doctors, therapists, nurses and recruiters, have been charged in the massive fraud case, which is being investigated by the FBI and Health and Human Services-Office of Inspector General.

September 17, 2011 in Booker in district courts, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (2) | TrackBack

The exact price of federal confinement in FY 2010

A helpful e-mail alerted me to this page of the Federal Register putting a precise dollar figure for federal confinement last year as calculated by the US Bureau of Prisons:

The fee to cover the average cost of incarceration for Federal inmates in Fiscal Year 2010 was $28,284.  The average annual cost to confine an inmate in a Community Corrections Center for Fiscal Year 2010 was $25,838....

We calculate this fee by dividing the number representing Bureau facilities’ monetary obligation (excluding activation costs) by the number of inmate-days incurred for the preceding fiscal year, and then by multiplying the quotient by 365.

September 17, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

September 16, 2011

"ACLU endorses marijuana legalization in Colorado"

The title of this post is the title of this news report out of the Centennial State.  Here are the basics:

The ACLU of Colorado Thursday announced it has endorsed the Campaign to Regulate Marijuana like Alcohol.

“In Colorado we believe our laws should be practical and they should be fair. Yet we are wasting scarce public resources in our criminal justice system by having police, prosecutors and the courts treat marijuana users like violent criminals. It is unconscionable for our state to spend tax dollars to arrest, prosecute and crowd the courts, and jail people for possession of a small amount of marijuana, especially when those being arrested and jailed are disproportionately people of color,” said the ACLU in a statement on its web site.

“The war on drugs has failed. Prohibition is not a sensible way to deal with marijuana. The Campaign to Regulate Marijuana Like Alcohol will move us toward a more rational approach to drug laws,” the statement continued.

Rosemary Harris Lytle, communications director at the ACLU of Colorado, said legalizing small amounts of marijuana for adults is a civil rights issue. “Current drug laws contribute to the mass incarceration of people of color, especially young people of color.” She said that drug use is roughly equal among ethnic groups in the U.S., but that a disproportionate number of those incarcerated for possession of small amounts of drugs are people of color.

Moreover, she said the effort to legalize small amounts of marijuana is in keeping with the ACLU’s mission of promoting and defending individual rights and freedom. “We believe that prosecuting people for low-level possession of marijuana is a waste of the taxpayers’ resources,” Harris Lytle said.

The full ACLU of Colorado statement is available at this link.

September 16, 2011 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (19) | TrackBack

Justice Ginsburg expresses fondness for Furman's halt to capital punishment

This new article from the San Francisco Chronicle, headlined "Justice Ginsburg discusses equality, death penalty," reports on some notable comments by Justice Ruth Bader Ginsburg concerning the death penalty and the Supreme Court's four-decade effort to provide constitutional regulations for its administration:

Supreme Court Justice Ruth Bader Ginsburg, speaking to law students in San Francisco, called Thursday for equality for gays and lesbians and said the court should return to a 1972 ruling that halted executions nationwide....

The subject of capital punishment came up when Hastings Professor Joan Williams, who conducted the 90-minute question-and-answer session, asked the 78-year-old justice what she would like to accomplish in her remaining years on the court.  "I would probably go back to the day when the Supreme Court said the death penalty could not be administered with an even hand, but that's not likely to be an opportunity for me," Ginsburg said.

She was referring to the ruling in a 1972 Georgia case that overturned all state death penalty laws, which had allowed judges and juries to impose death for any murder.  Four years later, the court upheld another Georgia law that prescribed death for specific categories of murder and gave guidance to juries, a model that California followed when it renewed capital punishment in 1977.

Ginsburg described review of impending executions as "a dreadful part of the business," and said she has chosen not to follow the path of the late Justices Thurgood Marshall and William Brennan -- who declared in every capital case that they considered the death penalty unconstitutional -- so that she could maintain a voice in the debate.

September 16, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Eighth Circuit panel unanimously affirms Rubashkin federal convictions and lengthy prison sentence

The Eighth Circuit has handed down an opinion today in US v. Rubashkin, No. 10-2487 (8th Cir. Sept. 16, 2011) (available here), a high-profile white-collar case out of the heartland involving financial frauds at a kosher meat-packing plant.  The panel has unanimously affirmed the Sholom Rubashkin's conviction and sentence; I have followed this case closely, in part because I helped file an amicus brief complaining about what I considered to be an unreasonable of 27-year (within-guideline) federal prison sentence for the defendant's offense conduct.

Though disappointed with the ruling here, I am not especially surprised given the Eighth Circuit's history in sentencing appeals.  (That history, along with the frequency with which the Supreme Court has reviewed and reversed the Eighth Circuit's work since Booker, might well mean this case will get more appellate attention in the future).  Here is an excerpt of the Rubashkin panel's sentencing discussion:

Rubashkin argues that his 324 month sentence was substantively unreasonable given his age, nonviolence, lack of criminal history, unlikelihood of recidivism, family obligations, and the principal motives for his acts,.  We review the imposition of a sentence under "a deferential abuse-of-discretion standard."  United States v. Hayes, 518 F.3d 989, 995 (8th Cir. 2008) (quoting Gall, 552 U.S. at 41).  Sentences within the guideline range are presumed to be substantively reasonable.  United States v. Robinson, 516 F.3d 716, 717 (8th Cir. 2008).

Not only was Rubashkin's sentence of 324 months within the guideline range, it was at the low end of it.  Rubashkin argues that because of his past charitable acts and his family obligations he should have been granted a downward departure.  These are the very characteristics that the district court properly took into account when considering the § 3353(a) factors.  The court weighed Rubashkin's past charitable acts, nonviolence, and the needs of his family against his involvement in multiple fraudulent schemes and the millions of dollars in damage they caused.  The cases Rubashkin cites in favor of his unreasonableness argument illustrate instances where downward departures based on charity or family needs have been affirmed.  Nothing requires a sentencing court to depart on such grounds.  Under all the circumstances the district court did not abuse its considerable discretion in imposing a 324 month sentence.

Related posts on the Rubashkin case:

September 16, 2011 in Booker in the Circuits, Examples of "over-punishment", White-collar sentencing | Permalink | Comments (3) | TrackBack

Wiccan Witch of Wisconsin prison now in big trouble

This amusing but still sad story from ABC News seems tailor-made for a Friday post on this blog.  The piece is headlined "Wisconsin Witch Accused of Sex Assault in Alleged Prison Hostage Plot," and here is how it starts:

A Wiccan prison chaplain who allegedly hatched a plan to fake a hostage situation with an inmate is now facing close to 60 years in prison, accused of sexual assault and providing narcotics to an inmate.

Jamyi Witch, 52, of Omro, Wis., who became the first Wiccan prison chaplain in the state amid controversy in 2001, is accused of sexual role-playing with an inmate, plying him with sleeping pills and telling the prison she was assaulted so both individuals could be transferred to a new facility.

On Aug. 10, Witch, who changed her last name from Welch because of her religion, told police that an inmate came into her office, barricaded the door with shelving and her wheelchair, and held her hostage, according to court documents.  The situation ended peacefully, with the inmate being removed after being fed sleeping pills by Witch.

Two weeks later, however, police said they intercepted a letter from the inmate to his mother describing a different scenario in which Witch hatched a plan for a fake hostage situation in order to get them both transferred to other facilities, according to the criminal complaint.

September 16, 2011 in Prisons and prisoners | Permalink | Comments (5) | TrackBack

SCOTUS halts Texas execution at last minute in case raising racial issues

As detailed in this MSNBC rport, the "U.S. Supreme Court Thursday halted the execution of a black man convicted of a double murder in Texas 16 years ago after his lawyers contended his sentence was unfair because of a question asked about race during his trial."  Here is more:

Duane Buck, 48, was spared from lethal injection when the justices, without comment, said they would review an appeal in his case.  Two appeals, both related to a psychologist's testimony that black people were more likely to commit violence, were before the court.  One was granted.  The other denied.

"Praise the Lord!" Buck told Texas Department of Criminal Justice spokesman Jason Clark. "God is worthy to be praised. God's mercy triumphs over judgment. "I feel good."...  The reprieve came nearly two hours into a six-hour window when Buck could have been taken to the death chamber....

Buck's case is one of six convictions that the state's then-top attorney reviewed in 2000 and said needed to be reopened because of the racially charged statements made during the sentencing phase of the trial.  A psychologist told jurors that black criminals were more likely to pose a future danger to the public if they are released....

Buck was convicted in 1997 of capital murder in connection with the deaths of Debra Gardner and Kenneth Butler, who were shot to death with a shotgun one night as they were hanging out with friends at Gardner's house....

Buck's guilt is not being questioned, but his lawyers say the jury was unfairly influenced and that he should receive a new sentencing hearing.  The Texas Board of Pardons and Paroles ... had denied Buck's clemency request Wednesday, and the 5th U.S. Circuit Court of Appeals subsequently rejected his appeal.

Buck's lawyers contend the case was "tainted by considerations of race" after psychologist Walter Quijano testified in response to a question from lead prosecutor Joan Huffman that black criminals are more likely to be violent again in the future.  Whether or not someone could be a continuing threat to society is one of three questions Texas jurors must consider when deciding on a death sentence.

Critically, the Supreme Court's stay and order in this case (available here) does not include a grant of certiorari, it just gives the Justices more time to decide if they should grant cert.

September 16, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (40) | TrackBack

September 15, 2011

Remarkable drop in US violent crimes rates in 2010 according to latest BJS data

More amazingly great news on crime rates today as reported in this press release from the folks at the Bureau of Justice Statistics:

During 2010, U.S. residents age 12 or older experienced a double-digit drop (down 13 percent) in the rate of violent victimization, the Bureau of Justice Statistics (BJS) announced today.  Violent crime includes rape or sexual assault, robbery, aggravated assault and simple assault. The rate of property victimization, which includes burglary, motor vehicle theft and household theft, also declined by six percent during the year.

The drop in violent victimization, from about 17 victimizations per 1,000 residents in 2009 to 15 per 1,000 in 2010, was three times the average annual rate of decline experienced over the last nine years.  The property victimization rate dropped from 127 victimizations per 1,000 households in 2009 to 120 per 1,000 in 2010, which was about two times the average annual rate of decline from 2001 to 2009.  During the 10-year period from 2001 to 2010, the overall violent victimization rate decreased by 40 percent and the property victimization rate fell by 28 percent.

These declines in violent and property victimizations continued a larger trend of decreasing criminal victimization in the United States. In 2010, violent and property victimization rates fell to their lowest levels since the early 1990s.  From 1993 to 2010, the violent crime victimization rate decreased 70 percent, dropping steadily from about 50 victimizations per 1,000 persons age 12 or older in 1993 to about 15 per 1,000 in 2010. The property crime victimization rate fell 62 percent, from about 319 victimizations per 1,000 households in 1993 to 120 per 1,000 in 2010.

Overall, U.S. residents age 12 or older experienced an estimated 18.7 million violent and property crime victimizations during 2010, down from 20.1 million in 2009. This included 3.8 million violent victimizations, 1.4 million serious violent victimizations (rape or sexual assault, robbery and aggravated assault), 14.8 million property victimizations and 138,000 personal thefts (picked pockets and snatched purses).

The new 20-page publication from BJS with all this and lots more data can be downloaded here.  I remain incredibly happy (and continue to be stunned) by these wonderful crime rate trends despite all the economic doom-and-gloom and broader discussion of the US in decline and the failings of government.  Many like to say that a primary goal, if not the central role, of all government is to ensure the safety of its citizens.  Though nobody can seem to figure out just how or why, it seems that the governments in the US over the last few decades are continuing to get better and better and better at succeeding in making its citizens safer from crime.

Regular readers are used to hearing me respond to this kind of data by asserting that academics and researchers of all stripes should be doing whatever they can to try to figure out what is working with respect to crime these days.  As stressed in this prior post, all the usual tropes about the impact and importance of incarceration rates and broader economic realities seem to fail to explain what is going on these days.  Some new (and perhaps unappealing) theories need to be explored (such as those I set forth in this lengthy post, include my (tongue-in-cheek?) favorites that ample carbs/calories and the availability of "medical" marijuana and prescription opiates are leading relatively crime-prone individual to get so fat or to self-medicate so that they become relatively less crime-prone).

One final (crazy?) point: criminologists and others often used to worry that elevated unemployment levels would result in more crime, but lately I am wondering if reduced crime levels might be resulting in more unemployment.  This crime data surely suggests that there are fewer so-called "career criminals" and that in turn means more people out looking for legitimate work.  Add in the reality that, partially due to less crime, in recent years fewer persons are being sent to prison and thus fewer persons are hired to build and work inside prisons, and we may have a (viable?) criminal justice explanation for the modern stubbornness of the US unemployment rate.

September 15, 2011 in Data on sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (12) | TrackBack

Mandatory life (with parole) sentence for "lewdness with child under 14" before Nevada Supreme Court

The folks at Families Against Mandatory Minimums have this new press release spotlighting that a very interesting state mandatory minimum sentencing case is to be heard by the Nevada Supreme Court this afternoon.  Here are the basics:

[Michelle Lyn] Taylor, 34, was convicted under Nevada’s “life-for-lewdness” law in November 2009 for drunkenly forcing a 13-year-old boy to touch her breast and demanding (unsuccessfully) that the boy engage in sex.   Neither the judge, nor one of the original legislative sponsors of the lewdness law, felt the punishment fit the crime.  Still, the existence of the mandatory minimum law forced the court to sentence Taylor to life in prison with possibility for parole in 10 years....

FAMM noted in its [amicus] brief [available here] that Nevada is the only jurisdiction in the country that requires a mandatory life sentence for lewd conduct.  The majority of states provide punishment of between several months to five years in prison.  The minority of states that permit more severe penalties do so without utilizing mandatory minimum sentences anywhere near the life sentence required under Nevada law.  Indeed, only two states even allow, in the broad exercise of a sentencing court’s discretion, that a life sentence might be imposed for such conduct in the most egregious cases.

In addition to the remarkable facts involved in this Nevada case, I find the legal issues here quite fascinating in part because there is a claim here pressed based on the Nevada Constitution's prohibition of "cruel or unusual" punishment as well as one based on the Eighth Amendment prohibition on "cruel and unusual" punishments. In addition, for modern Eighth Amendment jurisprudence in the wake of the Supreme Court's recent ruling in Graham, it is unclear just how much constitutional significance there is to the fact (1) that this life term was a result of a mandatory sentencing provision, and (2) that the defendant is eligible for (and probably would receive) parole before the end of this decade.

Related posts:

UPDATE: A helpful reader wisely suggested I tweak the title of this post to clarify that the offense of conviction in this notable case concened "lewdness with child" under the age of 14.  In addition, I thought it useful to link to the applicable Nevada statute and reprint its basic provisions:

Nevada Revised Section 201.230: Lewdness with child under 14 years; penalties.

1.  A person who willfully and lewdly commits any lewd or lascivious act, other than acts constituting the crime of sexual assault, upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of that child, is guilty of lewdness with a child.

2.  Except as otherwise provided in subsection 3 [providing for mandatory LWOP for repeat offender], a person who commits lewdness with a child is guilty of a category A felony and shall be punished by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served, and may be further punished by a fine of not more than $10,000.

September 15, 2011 in Assessing Graham and its aftermath, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Is Congress to make unauthorized use of coffee-makers (and even some commenting on this blog) a federal felony?

The seemingly crazy question in the title of this post is prompted by this new op-ed appearing today in the Wall Street Journal and authored by computer-crime guru Orin Kerr.  The piece is headlined "Should Faking a Name on Facebook Be a Felony?  Congress contemplates draconian punishment for Internet lies," and here are excerpts:

Imagine that President Obama could order the arrest of anyone who broke a promise on the Internet.  So you could be jailed for lying about your age or weight on an Internet dating site.  Or you could be sent to federal prison if your boss told you to work but you used the company's computer to check sports scores online.  Imagine that Eric Holder's Justice Department urged Congress to raise penalties for violations, making them felonies allowing three years in jail for each broken promise.  Fanciful, right?

Think again. Congress is now poised to grant the Obama administration's wishes in the name of "cybersecurity."

The little-known law at issue is called the Computer Fraud and Abuse Act. It was enacted in 1986 to punish computer hacking.  But Congress has broadened the law every few years, and today it extends far beyond hacking.  The law now criminalizes computer use that "exceeds authorized access" to any computer.  Today that violation is a misdemeanor, but the Senate Judiciary Committee is set to meet this morning to vote on making it a felony.

The problem is that a lot of routine computer use can exceed "authorized access."  Courts are still struggling to interpret this language.  But the Justice Department believes that it applies incredibly broadly to include "terms of use" violations and breaches of workplace computer-use policies.

Breaching an agreement or ignoring your boss might be bad. But should it be a federal crime just because it involves a computer? If interpreted this way, the law gives computer owners the power to criminalize any computer use they don't like....

If that sounds far-fetched, consider a few recent cases.  In 2009, the Justice Department prosecuted a woman for violating the "terms of service" of the social networking site MySpace.com.  The woman had been part of a group that set up a MySpace profile using a fake picture.  The feds charged her with conspiracy to violate the Computer Fraud and Abuse Act.  Prosecutors say the woman exceeded authorized access because MySpace required all profile information to be truthful.  But people routinely misstate the truth in online profiles, about everything from their age to their name.  What happens when each instance is a felony?

In 2010, the Justice Department charged a defendant with unauthorized access for using a computer to buy tickets from Ticketmaster.  Ticketmaster's website lets anyone visit.  But its "terms of use" only permitted non-automated purchases, and the defendant used a computer script to make the purchases.  

In another case, Justice has charged a defendant with violating workplace policies that limited use to legitimate company business.  Prosecutors claimed that using the company's computers for other reasons exceeded authorized access.  The Ninth Circuit Court of Appeals recently agreed....

Remarkably, the law doesn't even require devices to be connected to the Internet. Since 2008, it applies to pretty much everything with a microchip. So if you're visiting a friend and you use his coffeemaker without permission, watch out: You may have committed a federal crime.

Until now, the critical limit on the government's power has been that federal prosecutors rarely charge misdemeanors.  They prefer to bring more serious felony charges.  That's why the administration's proposal is so dangerous.  If exceeding authorized access becomes a felony, prosecutors will become eager to charge it.  Abuses are inevitable.

Real threats to cybersecurity must be prosecuted.  Penalties should be stiff.  But Congress must narrow the Computer Fraud and Abuse Act before enhancing its penalties.  There's no reason to make breaching a promise a federal case, and certainly not a felony crime.

I am, of course, eager to assume that everyone who visits and comments on this blog is doing so from a computer on which they have authorized access.  And yet, I also suspect that a hard-headed federal prosecutor, perhaps one who does not think former federal prosecutor Bill Otis gets all the respect he deserves in this forum, might be eager to investigate if some commentors who regularly attack Bill are possibly exceeding their authorized access when posting comments.  Or perhaps this new proposed Computer Fraud and Abuse Act would even allow a hard-headed federal prosecutor to go after commentor "federalist" simply because that chosen commentor has been using a "fake" name which (falsely?) suggests he has some link to the authors of The Federalst Papers.

September 15, 2011 in Offense Characteristics, Who Sentences? | Permalink | Comments (22) | TrackBack

Despite death penalty's practical demise and a prisoner release order, California crime hit record low in 2010

I missed this AP report from a few days ago detailing that California's crimes rates hit record low levels in 2010.  Here are the basic details:

State officials report that incidences of violent crime decreased 6.9 percent in California last year, reaching the lowest level since 1968.

The annual "Crime in California" report released Friday shows that the crime rate went down in every category of violent or property offenses in 2010.  It was the fourth year in a row that violent crime decreased.

Homicides were down 7.8 percent, robbery dropped 10 percent and motor vehicle theft fell 7.6 percent.  Officials say since peaking in 1989, the motor vehicle theft rate has decreased 62 percent.  Homicide and forcible rape rates are the lowest since 1966.

The yearly report is compiled by the California Department of Justice and is based on data from police and sheriff's departments in all of the state's 58 counties.

As the title of this post highlights, I think it is valuable to keep in mind that this great news about California crime rates comes during a period federal litigation has resulted in the state having zero executions and having to figure out ways to significantly reduce its state prison population.  

Critically, I mean to make no cause-and-effect claims here; indeed, I think it would be deeply misguided to assert based on just this crime data that the state is obviously "safer" without the death penalty and without an ever-growing prison population.  But I do mean to highlight that this important and good news on the California crime rate front suggests that the many obvious dysfunctions in California's sentencing laws, policies and practices does not (yet?) appear to be having an obviously negative impact on public safety in the state.

September 15, 2011 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

September 14, 2011

"Family of alleged hate-killing victim opposes death penalty in case"

The title of this post is the headline of this CNN report which provides a notable example of a situation in which respecting the wishes of crime victims would result in potential (undue?) sentencing leniency.  Here is how the piece starts:

The family of an African-American man who died after allegedly being beaten by a group of white teens and run over by a truck is asking state and federal officials not to seek the death penalty in the case.

Relatives of James Craig Anderson, who died shortly after receiving his injuries on June 26, sent a letter with their request to the prosecutor in the case, Hinds County District Attorney Robert Shuler Smith.   "We ask that you not seek the death penalty for anyone involved in James' murder," the letter states; the letter is signed by Barbara Anderson Young, James Craig Anderson's sister who is in charge of, and speaks for, his estate.

The letter states that the family is opposed to the death penalty partly for religious convictions.   "Our opposition to the death penalty is deeply rooted in our religious faith, a faith that was central in James' life as well," the letter states.  But the family goes on to explain that there is another reason for their opposition, one that is tied to Mississippi's racial past.

"We also oppose the death penalty because it historically has been used in Mississippi and the South primarily against people of color for killing whites," the letter states.  "Executing James' killers will not help to balance the scales. But sparing them may help to spark a dialogue that one day will lead to the elimination of capital punishment."

The family has been mostly private in its grief, but the letter sent to the DA's office alludes to what the family is going through.  "Those responsible for James' death not only ended the life of a talented and wonderful man.  They also caused our family unspeakable pain and grief. But our loss will not be lessened by the state taking the life of another," it says.

The death of James Craig Anderson, 48, occurred early June 26 in Jackson, allegedly at the hands of white teens who, after a night of partying and drinking, decided to go looking for black people to assault, law enforcement officials have said, quoting one of the suspects in the case.

Anderson's death drew national attention after CNN first reported it and aired exclusive surveillance video of the actual killing, captured by a parking lot security camera in a Jackson suburb.  Smith, the district attorney, has called it "vicious" and a "premeditated hate crime."

"We have a racially motivated killing," said Smith, asserting that the group of white teens sought out a black person to kill.  "The teens came to Jackson and they picked out a black man, an innocent victim.  They assaulted that victim, and then they just killed him."

September 14, 2011 in Death Penalty Reforms, Race, Class, and Gender, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Early buzz that feds think Rod Blagojevich's guideline range is 30 years to life in prison

I am a bit skeptical of, though still quite intrigued by, this new story from the Chicago Sun-Times headlined "Feds say Rod Blagojevich could get 30 years to life in prison."  Here are the basics: 

Federal prosecutors argue Rod Blagojevich could serve 30 years to life in prison, sources say — a sentencing range that will be bitterly disputed by the former governor’s defense lawyers.

Blagojevich attorney Sheldon Sorosky called the government’s numbers “harsh and cruel,” Wednesday but said he wouldn’t discuss them.  The prosecution’s calculation was submitted in private. Sorosky said the defense would put forth its own version that is a far cry from the government’s.

“We are preparing a submission to Judge Zagel, which is far, far, far under those draconian and harsh and cruel numbers,” Sorosky said.  “We are making our own guideline calculation which is fair and based on facts and the evidence at trial.”

Blagojevich, 54, who is now scheduled to be sentenced Oct. 6, was convicted in June on 17 of 20 counts of corruption, including charges that he schemed to sell President Obama’s vacant U.S. Senate seat. Blagojevich was also convicted last year of one count of making false statements to the FBI....

U.S. District Judge James Zagel will have wide discretion over the former governor’s prison term, as sentencing guidelines for federal judges are advisory.  Judges typically listen to all sides and then decide, based on a number of factors that make up the sentencing range....

“While that may be the government’s calculation, it’s good to keep in mind that Judge Zagel has ultimate discretion,” said Patrick Collins, a former prosecutor in the Ryan case. “I would be shocked if he would consider a sentence anywhere near that.”

In the prosecution’s calculations, the government says Blagojevich faces more time because he took the witness stand and allegedly obstructed justice, sources said. As governor, he was also leader of an enterprise, they will argue.  The U.S. Attorney’s office had no comment.

Court filings involving Blagojevich’s sentencing are expected on Friday.  Though his sentencing is set to begin Oct. 6, Sorosky has previously questioned whether it would begin on time since the same judge is set to begin the corruption trial of Springfield power broker William Cellini three days earlier.

It is not unusual for federal guideline sentencing ranges to go crazy high in white-collar cases in which a lot of money was lost or gained.  But I cannot recall any political corruption cases in which the government ran the numbers to get such a high range.   This press report may reflect the fact that the government's filing with the probation office suggested the potential applicability of lots of guidelines enhancements even if the PSR is unlikely to find all the enhancements applicable.  Whatever the particulars, it seems we can and should expec the feds to be seeking some serious prison time for Blago.

Some related posts following Blago's convictions in June:

September 14, 2011 in Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"The Early Release Revolution: Early Assessments and State-Level Strategies"

The title of this post is the title of this timely new piece by Jesse Norris which is available via SSRN. Here is the abstract:

Reacting to widespread budget crises, many states are experimenting with early release legislation to help cut correctional costs.  This early release revolution is a stark reversal of earlier trends toward determinate sentencing.  Implementing early release policies appropriately could help bring about a new sentencing era characterizing by lower rates of incarceration and higher levels of public safety.  However, early release is potentially vulnerable to abuse and prone to backlash, and must be planned and implemented carefully to avoid endangering the public, fostering injustice, or failing to realize hoped-for budgetary savings.

This Article outlines a set of principles for making early release successful, using Wisconsin as a case study because of its unusually large number of early release mechanisms.  After evaluating Wisconsin’s recent early release legislation, this Article presents four principles for an effective early release system.  Specifically, state policymakers dealing with early release legislation should a) prevent injustice by monitoring for bias and requiring structured, recorded decision-making; b) provide for effective implementation through strategic governance; c) ensure early release is compatible with public safety; and d) complement early release with other measures designed to decrease incarceration.

The Article also uses preliminary data to respond to recent work on early release and sentence modification.  First, in response to arguments for the superiority of judicial rather than administrative sentence modification, the Article provides evidence that judicial sentence modification mechanisms may widen racial disparities.  Second, addressing the charge that risk assessment-aided early release will exacerbate racial disparities, I show that this has not occurred so far in Wisconsin.  Finally, contesting the claim that early release has no role to play in reducing prison populations, I show that a non-trivial proportion (12%) of the recent drop in the Wisconsin prison population was due to recent early release reforms.  While this shows that early release does have some role to play in reducing prison populations, the relatively low proportion reinforces the Article’s argument for supplementing early release with other incarceration-lowering policies.

September 14, 2011 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Even if banning sex offenders from public libraries is constitutional, is it a reasonable policy?

I responded yesterday to a Tennessee story about a new criminal prohibition on registered sex offenders setting foot in a public library by asking in this post, "Is it constitutional to ban sex offenders from public libraries?".  I sent the post to First Amendment guru Eugene Volokh, and he responded with two great posts on his great blog here and here explaining his view that (1) this new Tennessee ban is constitutionally permissible under the First Amendment, but (2) there could be a problem with it under federal regulatory law for libraries that get federal benefits.

In addition to expressing how grateful I am for Eugene's input and analysis, I wanted to do this follow-up post asking for reactions to this ban as a matter of policy.  I tend to have a negative reaction to the ever-growing and seemingly never-ending list of what registered sex offenders must and must not do.  And yet, public libraries are places where not only do I want patrons to be 100% safe, but I want even the most fearful of potential patrons to believe they are 100% safe. 

Before condemning this new Tennessee law, it is worth considering how a local mayor or town council member should be expected to respond if some (many? a few?) constituents assert that they genuinely would feel safer with their kids at the local library if sex offenders were barred.  Though many might say it is silly to have an undue fear about registered sex offenders while at the public library, I think it must be hard for an elected official to say just that directly to a person expressing such a fear and urging the kind of ban now in place in Tennessee.

September 14, 2011 in Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24) | TrackBack

"Of Speech and Sanctions: Toward a Penalty-Sensitive Approach to the First Amendment"

I just came across this interesting paper by Michael Coenen, which has the same title as the title of this post, which has become my must-read for today because the piece touches on a few topics I have been thinking about a lot in recent years in two particular sentencing settings.  Let me here quote the SSRN abstract and then briefly explain my particular sentencing law spin:

Free-speech adjudicators seldom scrutinize the severity of a speaker’s sanction. Embracing a “penalty-neutral” understanding of the free-speech right, courts tend to treat an individual’s expression as either protected, in which case the government may not punish it at all, or unprotected, in which case the government may punish to its heart’s content.  There is, however, a small body of “penalty-sensitive” case law, which runs counter to the penalty-neutral norm. On the penalty-sensitive approach, the severity of a speaker’s punishment affects the merits of her First Amendment claim, thus giving rise to categories of expression that the government may punish, but only to a certain extent.

This Article defends the penalty-sensitive approach and calls for its expanded use within First Amendment doctrine.  Pulling together existing strands of penalty-sensitive doctrine, the Article identifies five ways in which penalty sensitivity can further important constitutional objectives: (1) increasing fairness for similarly-situated speakers; (2) mitigating chilling effects on protected speech; (3) facilitating the “efficient breach” of constitutionally borderline speech restrictions; (4) rooting out improper government motives; and (5) giving effect to certain “hybrid” speech rights.  The Article also considers potential objections to the penalty-sensitive approach, concluding that, while the utility of the approach will vary from case to case, penalty sensitivity can provide effective solutions to difficult First Amendment problems.

I am draw to this paper because I have long worried that the "true problem" with modern extreme federal prison terms for merely downloading some child porn or for illegally possessing a gun under certain settings is a lack of "penalty sensitivity" given the sometimes close relationship between constitutionally protected First (or Second) Amendment behavior and unprotected behavior that can now land a defendant in prison for decades.  (if/when I get a chance to read this new paper closely, I may have a lot more to say on this topic.)

September 14, 2011 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Will third time clemency hearing be the charm for Troy Davis on eve of his latest execution date?

The media buzz around Georgia's latest scheduled execution date for Troy Davis is increasing, as highlighted by these new piece:

Importantly, as detailed in this Atlanta Journal-Constitution piece from last week, "Davis has been granted a third clemency hearing by the state Board of Pardons and Paroles, which will hear his renewed claims of innocence two days before his scheduled execution."  Davis' execution is now scheduled for 7 pm on Sept. 21, but Georgia's "parole board will hear presentations from Davis' legal team and prosecutors on Sept. 19."  Importantly, though this "parole board denied Davis' clemency request in September 2008," as of now "the five-member board has three new members."

Not surprisingly, traditional opponents of the death penalty are growing ever more vocal in their call for Davis to receive clemency based on enduring questions about his guilt.  And this snippet from the commentary by former Georgia federal prosecutor Bob Barr highlights why I believe truly shrewd death penalty supporters would be wise to root for Davis to be granted clemency this time around:

I am a longtime supporter of the death penalty.  I make no judgment as to whether Davis is guilty or innocent.  And surely the citizens of Savannah and the state of Georgia want justice served on behalf of Officer MacPhail.

But imposing an irreversible sentence of death on the skimpiest of evidence will not serve the interest of justice.  By granting clemency, the Georgia Board of Pardons and Paroles will adhere to the most sacred principles of American jurisprudence, and will keep a man from being executed when we cannot be assured of his guilt.

Just as the innocence of (now executed) Cameron Todd Willingham has become an article of faith for death penalty abolitionists, the innocence of Troy Davis will always be assumed by death penalty opponents.  Consequently, Davis' ultimate execution would quickly become another loud talking point in abolitionist advocacy, and Davis' case has additional salience because of his race and the hard-to-dispute reality that his factual guilt can at least reasonably be questioned.  But if Davis is granted clemency, then his case then becomes a talking point for death penalty supporters who are often eager to assert that this punishment will not be used "when we cannot be assured of [a defendant's] guilt."

September 14, 2011 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (26) | TrackBack

"Prison work crews cut in cost-savings move"

The title of this post is the headline of this new USA Today article, which gets started this way:

Prison inmate labor programs, long considered a lower-cost option for needed public work projects such as clearing debris and cutting weeds on highways, are increasingly facing elimination or reduction because of budget issues.

Michigan and North Carolina are the latest to completely eliminate their programs, and Florida reduced its program by nearly 40% this year.

Michigan lawmakers stopped funding the Michigan Department of Corrections' 15 crews this year, even as more requests for inmate labor poured in from communities.   "We actually stopped all but one work crew (which the requester fully funded) in September 2010," according to Michigan Department of Corrections spokesman John Cordell.

It cost Michigan taxpayers $10 million last year to operate the crews.  Most of that cost was for transportation and supervision of the inmates, he said.   Cordell said there are plans to reinstate inmate crews Oct. 1, but with a major difference.   "We will have to charge the entities who use the crews," Cordell said. "We just can't subsidize the program anymore."

September 14, 2011 in Prisons and prisoners | Permalink | Comments (3) | TrackBack

September 13, 2011

Is it constitutional to ban sex offenders from public libraries?

The (challenging?) legal question in the title of this post is prompted by this local story out of Tennessee, which is headlined "Knox bans registered sex offenders from county libraries."  Here are the details:

People listed on the Tennessee Sex Offender Registry are banned from visiting county libraries under an executive order issued Monday by Knox County Mayor Tim Burchett.

He said they can still use the county library system's online services and have a proxy check out and return materials on their behalf. But, they face arrest if caught inside the buildings.  "I just don't want them anywhere around our kids," Burchett said.  "The ultimate decision is how we pursue it.  I want to get out in front of this. There's no need to toil around with it.  I don't want them anywhere around our kids."

The administration said the library system, which has 19 locations, is the first of the state's big four metropolitan library systems to put such a policy in place.  The county, Burchett said, is taking advantage of a state law that went into effect July 1 that gives public library directors the authority "to reasonably restrict the access of any person listed on the sexual offender registry."

Officials will compare a list of registered offenders to its 150,000 active cardholders and then mail them notices, advising them of the change.  State law says that a sex offender who enters a library five days after the notice is mailed can be prosecuted for criminal trespass.  In addition, the county also will post notices on the entrances to all its public library buildings.

Listed offenders on the state's registry include those convicted of sex crimes against children, rape, statutory rape, attempted rape, sexual battery, criminal attempt to commit statutory rape and solicitation to commit aggravated prostitution.  "People will say they've paid their debts to society, but they've given some of those kids a life sentence," Burchett said.  "(Some of the) kids have been abused and they carry it with them for the rest of their lives.  And I don't want to give (the offenders) a chance to be anywhere near them again."

Knox County Sheriff Jimmy "J.J." Jones agreed, saying he was pleased with the new policy. "I applaud the state of Tennessee for putting tougher regulations on these dirt bags who prey on our children," he said.   Officials say they can't recall an incident at the library that involved a sex offender, but communications manager Michael Grider said the Knoxville Police Department is investigating a complaint made roughly a month to six weeks ago....

Sixth Judicial District Public Defender Mark Stephens said Monday he doesn't question the county's purpose of ensuring public safety, but he questioned whether the move was constitutional.  "A regulation like this proposes too broad a ban to include people who impose no threat to library goers," he said.  "A ban like this would have to be so narrowly tailored to avoid infringing on the rights of those people who don't present a risk, and the Knox County proposed ban doesn't meet that test."

Stephens said a New Mexico district court recently ruled that a similar ban in Albuquerque was unconstitutional.  Additionally, he said courts have held that public libraries are limited public forums, which means the First Amendment protects peoples' rights to use them.

When asked whether the county's plan unfairly punished those whose crimes were not child-related, Burchett said:  "Sometimes people plead down to lesser offenses.  My main concern is protecting innocent people, and all we're doing is enforcing state law and going after it very aggressively.  I don't know how you'd differentiate.  The state can work that out."

September 13, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack