September 24, 2011
NJ appellate ruling limits new GPS monitoring of past sex offenders
As detailed in this local article, this past week a New Jersey "state appeals court ruled that forcing a sex offender convicted more than 20 years ago to comply with GPS monitoring rules that were enacted about four years ago violates his constitutional rights." Here are the basics:
In the 2-1 decision, the Appellate Division of Superior Court reversed a state parole board decision that required George C. Riley, a Tier III sex offender, to wear a GPS ankle bracelet. The court said the requirements of the monitoring program constituted a level of punishment that violates the constitutional provision barring retroactive laws.
“We conclude that although the Legislature's intention in enacting the Sex Offender Monitoring Act was civil and nonpunitive, the act is so punitive in effect that it violates the ex post facto clause,” Judges Stephen Skillman and Marianne Espinosa said in their decision.
In his dissent, Judge Anthony J. Parrillo said while the GPS monitoring may be more burdensome than the yearly registration requirements for sex offenders, “it does not rise to the level of a direct and punitive disability or restraint,” and is far less restrictive than the involuntary civil confinement some sex offenders are subject to upon completion of their prison terms.
“Simply put, the majority's constitutional tolerance of laws that register, publicize, monitor and indefinitely institutionalize sex offenders after completion of their criminal sentences cannot logically be reconciled with its avowed distaste for a rule requiring the most serious sex offenders, who remain free to live, work and walk wherever they please, to submit to a form of electronic surveillance,” he wrote.
Because the appellate decision was split, if the state Attorney General’s Office files an appeal, the case would automatically be heard by the state Supreme Court.
The lengthy majority ruling (running 30+ pages) and the dissenting opinion (running 20+ pages) are available at this link. I suspect the New Jersey Supreme Court will get asked to review this ruling, and I further expect this kind of technocorrections issue to get all the way to the US Supreme Court eventually.
"Should pardoned felons have gun rights?"
The title of this post is the headline of this front-page article from yesterday's edition of The Tennessean. Here is how the piece starts:
David Scott Blackwell has repaid his debt to society, by Georgia standards. He served five years in prison for selling drugs. He successfully finished his probation. He was even granted a full pardon by the Georgia Board of Pardons and Paroles, which would allow him to possess a gun in that state.
But should Blackwell, now living in Franklin, be able to own a gun here? Blackwell is suing the state after being denied a gun permit in Tennessee, arguing that the Georgia pardon fully restored his rights — even the right to bear arms. It’s a battle being played out in other states as well, as lawmakers in places such as Alaska and Oregon have mulled over laws to loosen firearms restrictions on felons who have had some of their rights restored.
It also has brought out unusually vocal support from Second Amendment advocates, who in prior years have been hesitant to support some felons’ rights to possess firearms. Among those advocates is the Tennessee Firearms Association, which downplays the fact that Blackwell is a convicted felon, instead painting it as a conflict between the constitutional powers of the pardon and Tennessee lawmakers who have written laws to restrict felons’ rights.
This marks the first time in the association’s 16 years that it has filed a brief in any lawsuit. “Georgia’s pardon system granted him a full pardon, and it specifically says he has the right to purchase and acquire guns,” said John Harris, a Nashville attorney who serves as the volunteer executive director for the Tennessee Firearms Association. “This is a question of, can the Tennessee General Assembly pass a statute that restricts the constitutional authority of another branch of the government?”
Blackwell failed to convince a Davidson County Chancery Court judge, but has appealed. The Tennessee Court of Appeals recently heard arguments and is considering the case. “The pardon restores constitutional rights — that’s what a pardon does,” said Blackwell’s attorney, David Raybin. “Therefore, it restores his right to a firearm. That’s it, in its simplest terms.”
But the state is opposing Blackwell, saying laws passed by the Tennessee legislature prohibiting felons from possessing firearms apply to those whose rights have been restored. “It is reasonable for the legislature to determine that felony drug offenders, even those who subsequently receive a pardon, are likely to misuse firearms in the future,” wrote the Tennessee Attorney General’s Office. “This is due to the well-known connection between guns and drugs.”
The newspaper has this accompanying on-line poll asking whether "a pardoned ex-convict who is allowed to own fire arms in Georgia [and] now lives in TN [should] be allowed to own a gun in TN?". With just under 500 votes cast as of this writing, the vote has YES at 47%, NO at 45%, and a remaining 8% as Undecided. (I voted YES in part because I suspect a non-violent offender who has secured a pardon is probably less dangerous and less likely to misuse a gun than an average citizen.)
September 23, 2011
Ohio board recommends clemency for murderer based on his "deprived history"
As detailed in this new local article, which is headlined "Parole board recommends governor spare life of convicted killer," the "Ohio Parole Board today unanimously recommended to Gov. John Kasich that he spare the life of convicted killer Joseph Murphy of Marion." Here are the details:
By an 8-0 vote, the board concluded that Murphy, 46, should not be executed on Oct. 18 for the 1987 robbery and murder of Ruth Predmore, a 72-year-old widow from Marion. The board said Murphy’s “deprived history is not one previously seen” in Ohio capital punishment cases and that his abuse was “chronic and consistent from his own family."
“There is no evidence of consistent or meaningful love or support shown to this applicant during his entire existence,” the board concluded.
Kasich can use his executive clemency power to stop the execution, but he is not bound to honor the recommendation. Murphy also has an appeal pending as part of the ongoing lawsuit challenging Ohio’s lethal injection protocol.
Former Ohio Supreme Court Justice Herbert Brown and Predmore’s niece were among the witnesses who urged the board to grant clemency during a seven-hour hearing held last week.
Borderline mentally retarded, Murphy was beaten by his parents, starved, tied to a bed, raped and on one occasion left in a burning house. He spent time in a dozen mental hospitals and institutions before committing the crime that sent him to Death Row. His public defender attorneys noted that the life without parole sentencing option was unavailable when Murphy was tried and convicted.
Marion County Prosecutor Brent Yager and Brenda Leikala, of the Ohio attorney general's office argued that Murphy's upbringing, while tragic, did not outweigh the brutal circumstances of Predmore’s murder.
While robbing Predmore at knifepoint in her home on the night of Feb. 1, 1987, Murphy slashed the 5-foot, 120-pound woman from ear-to-ear, cutting so deep that he severed her jugular vein, esophagus and nicked her spinal cord. While his victim bled to death on the floor, Murphy stole her purse, credit cards, coat and a bowl of loose pennies.
Split Ninth Circuit affirms huge upward departure based on uncharged murder
A remarkable case produces today another remarkable reasonableness review outcome via a split Ninth Circuit that affirms a way above guideline sentence based on an uncharged murder. Here is how the majority opinion in US v. Fitch, No. 10-10607 (9th Cir. Sept. 23, 2011) (available here), gets started:
David Kent Fitch was convicted by a jury of nine counts of bank fraud, two counts of fraudulent use of an access device, two counts of attempted fraudulent use of an access device, two counts of laundering monetary instruments, and one count of money laundering. The applicable Sentencing Guidelines range was 41-51 months. At sentencing, however, the district judge found by clear and convincing evidence that Fitch had murdered his wife, and that her death was the means he used to commit his crimes. Relying on that finding, he imposed a sentence of 262 months.
Fitch appeals his sentence, arguing that the district court committed procedural error and that, in any event, its sentence was substantively unreasonable. Because Fitch has never been charged with his wife’s murder, his sentence is a poignant example of a drastic upward departure from the Guidelines range — albeit below the statutory maximum—based on uncharged criminal conduct. We have not had occasion to address a scenario quite like this, but are constrained to affirm.
Here is how the dissent concludes its opinion:
We simply do not know any of the circumstances of Bozi’s disappearance. We know that she has disappeared and that Fitch immediately exploited her disappearance for his own benefit. While Fitch may indeed have been played a causative, or a concealing, role in Bozi’s disappearance, the record contains no evidence that sheds light on the manner of his involvement or the degree of his involvement. There is certainly no clear and convincing evidence of premeditated murder. The district court’s finding is simply not supported by the record. The substantial departure applied pursuant to § 5K2.1 was therefore an abuse of discretion. Accordingly, I respectfully dissent.
Lots and lots of notable death penalty headlines and commentary
The media continues to buzz a lot about the Troy Davis case and execution; meanwhile lots of other death penalty developments continue to unfold throughout the United States. Here is just a sampling of some of the capital news and commentary that caught my eye this morning from a variety of sources:
From the New York Times here, "In Death-Penalty Debate, Execution Offers Little Closure"
From CNN here, "Troy Davis and constitutional virtues"
From the New York Times op-ed page here, "Silence from the Court"
From the Huffington Post here, "From Warren McCleskey to Troy Davis, History Repeats"
From Technorati here, "Anonymous Plots Revenge Against Georgia For Troy Davis
From the National Journal here, "Alec Baldwin and Michelle Malkin Both Lose Troy Davis Twitter Fight"
From CNN here, "How does a Christian support the death penalty?"
From FoxNews here, "Doctors and Death Penalty Cases"
From Reuters here, "Alabama carries out third U.S. execution this week"
From the AP here, "Georgia sets execution date for Albany man"
From the AP here, "Lawyers Seek Details on Ohio Executioner's Cancer"
From the AP here, "Texas prisons end special last meals in executions"
Should there be specialized criminal courts for older teens?
The question in the title of this post is prompted by this lengthy and fascinating article from the New York Law Journal, which is headlined "Lippman Urges Increased Age for Adult Prosecution of Teens." Here are excerpts:
Chief Judge Jonathan Lippman yesterday said that within the next three months he will establish adult criminal court parts exclusively dedicated to handling cases of 16- and 17-year-old offenders in an effort to demonstrate that the age of criminal responsibility can safely and economically be raised.
In those courts, specially trained judges will bring a Family Court/rehabilitation focus to cases involving non-violent teens. "The time has come" Judge Lippman said in an interview. "We have been studying this issue for 50 years and there is momentum for juvenile justice reform. We need an approach that is based on the best interests of the child and rehabilitation rather than an approach based on punishment and incarceration."
While an increase in the age threshold for adult crimes requires legislation, the court system can establish the experimental adult criminal parts on its own.
In a speech to the Citizens Crime Commission yesterday, Judge Lippman noted that New York is currently one of only two states—North Carolina is the other—that treat 16-year-olds as adult offenders, a policy that he said breeds "abuse and future criminality." He wants to increase that to 18 for youths who commit less serious crimes while not changing the statute under which 13-year-olds who commit murder and 14-year-olds who commit other violent felonies are adjudicated as adults.
The goal of raising the age threshold for adult crime, shared by many other advocates for juvenile justice reform, has proven elusive, but Judge Lippman said that now the "time is ripe." He has asked the New York State Permanent Sentencing Commission to prepare "on a fast-track basis" draft legislation in time for the 2012 legislative session, which begins Jan. 1.... "While it may be that we'll need more Family Court judges and a heftier probation entity, and while there are things that will cost more money, in the long run and probably short run it will save money," Judge Lippman said.
State reports indicate that New York spends roughly $266,000 per child per year to house young offenders in detention facilities — and the return on that investment is an 89 percent recidivism rate for boys and an 81 percent recidivism rate for girls over a 10-year period. Statistics show that of the 57 boys who were not re-arrested by the time they turned 28, 12, or 21 percent, are dead.
Judge Lippman noted that the number of youths incarcerated in New York has dropped from more than 2,200 to fewer than 700 over the past few years. As of yesterday, the Office of Children and Family Services reported 605 teens being held in state facilities, 212 of which were incarcerated for committing adult crimes.
Judge Lippman credited Governor Andrew M. Cuomo with "clos[ing] down a number of these failed youth prisons." Still, he said, up to 50,000 16- and 17-year-olds are arrested annually in New York, mainly for minor crimes, and prosecuted as adults in criminal courts. "I think the question of the day for all of us in New York is this: Are 16 and 17-year-olds arrested for less serious crimes better served by going to Criminal Court or Family Court?"
"Jaycee Dugard sues feds, citing Garrido parole failures"
The title of this post is the headline of this local article out of California, which reports on a tort suit that seems likely to warm the heart of Supremecy Claus and perhaps (many?) others. Here are the basics from the start of the article:
Attorneys for Jaycee Dugard sued the federal government Thursday morning, lambasting federal authorities' decision to cut short Phillip Garrido's prison sentence and their lackluster enforcement of his parole in the 1990s, when he kidnapped Dugard.
The complaint seeks unspecified damages and parallels state proceedings that netted Dugard and her two daughters fathered by Garrido a $20 million settlement from the Legislature last year. Nancy Seltzer, Dugard's Los Angeles-based publicist, said the complaint was filed after Dugard was twice denied mediation by the federal government.
In the filing, Dugard's attorneys reveal that a 35-minute interview with parole officials led to Garrido's release from federal prison in 1987, just 11 years into a 50-year sentence for the rape and kidnapping of a South Lake Tahoe woman in 1976. From there, the filing states, the shortcomings in assessing Garrido's danger to the public only got worse.
Garrido kidnapped Dugard in 1991 and in the course of sexual slavery carried out over the next few years fathered two daughters while keeping them hidden in a backyard compound of tents, sheds and a soundproofed studio that doubled as Dugard's birthing room.
The complaint argues that parole checks and psychiatric evaluations downplayed disturbing spikes in his personality and numerous parole violations, and that federal authorities did not share their full records with state parole agents who took over his supervision in 1999.
Many of the assertions made in the complaint were acknowledged in a federal report on Garrido's parole supervision released this year as well as a state audit in November 2009, about two months after Dugard resurfaced near Antioch.
In a statement, Seltzer said Dugard is not seeking money for herself but rather her nonprofit, the JAYC Foundation, which is aimed at providing treatment and support for victims of abductions and traumatic experiences.
I would be very interested in reader reactions to Dugard's tort suit against the federal government. I am interested not only view about whether Dugard's extreme case justifies a tort award from the feds, but also the broader question of whether tort suits against criminal justice officials for any gross recklessness in supervising dangerous criminals ought to be more common.
Interestingly, because parole was formally abolished in the federal for all crimes committed after 1987, a tort judgment based on failings of federal parole officials in the Dugard case might have only limited long-term impact in the federal system. But, of course, lots of states still have parole mechanisms and this high-profile suit could, at least indirectly, have a big impact on their workings. In addition, federal officials still have some post-prison-release supervision responsibilities under the modern structure of federal "supervised release." A big ruling for Dugard also could, at least indirectly, have a big impact on this part of the modern federal sentencing system.
Notable state fraud ruling affirming 54-year sentence for white-collar offender
A helpful reader alerted me to an interesting opinion from the Indiana Court of Appeals in Reeves v. Indiana, No. 77A01-1012-CR-646 (Ind. Ct. App. Sep. 19, 2011) (available here), which rejects a state white-collar defendant's various complaints about his convictions and his sentence of 54 years of imprisonment for running what turned into a kind of faith-based Ponzi scheme. This discussion of the sentencing issues provide background on the nature of the crime and why the long punishment was upheld in Reeves:
Although Reeves's crimes were property crimes, they were not ordinary property crimes, resulting in staggering losses to thousands of victims: $13,149,000 lost by 2904 victims, at least some of whom had their retirement savings wiped out. Among the victims was Steven Duncan, who lost $600,000, money that was intended to fund his retirement. Duncan testified that the loss ruined his marriage and his life and that his current blindness might have been avoided had he been able to afford medical insurance. Reverend Roger Wright, who had invested his entire retirement savings in Alanar, lost it all, a total of $179,152. Rev. Wright, like many ministers, had not paid into the Social Security system and so was completely dependent on his retirement income, which is now gone. Indeed, a large percentage of Reeves's victims were elderly, a group he targeted.
Moreover, the trial court found, and the record indicates, that Reeves exploited the religion and faith of his victims. After the terms of a bond issue were finalized, Alanar would organize a “kickoff” night at the church in order to start selling bonds. Alanar's sales presentations at the kickoffs included reminding potential bondholders of their “Christian responsibility” to support the church by buying bonds.... Many of Reeves's victims trusted him because they believed him to be a Christian and considered the fact that they were investing with a Christian company when deciding whether to invest. In light of the very large number of victims, the vast amount of their losses, and the elements of cynical exploitation to Reeves's scheme, we consider his crimes to be very egregious.
While Reeves's lack of a prior criminal history and expressions of remorse do him some credit, it certainly should be noted that evidence presented at trial does not. Reeves testified that he felt there was nothing wrong with what he was doing at Alanar. Two Alanar employees, however, testified that they faced retribution when they began to understand the true workings of Alanar.... Reeves's reckless disregard for bondholders' money was also expressed by his decision to purchase Porsche Boxsters for his three sons as a bonus. While there are some redeeming aspects of Reeves's character, the very egregious nature of his crimes and the negative aspects of his character fully justify his enhanced and consecutive sentences. Reeves has failed to establish that his fifty-four-year aggregate sentence in inappropriate.
September 22, 2011
Hoping (perhaps foolishly, yet again) latest GOP debate addresses crime and punishment
As reported in this FoxNews piece, tonight's GOP debate is sponsored in part by Google and "more than 18,000 questions and 100,000 votes have been offered via text and videos on YouTube." A quick poke around this website reveals that more than a few folks have posed questions about legalizing marijuana, and I also found these interesting questions posed about incarceration policies and the drug war:
Instead of putting our tax dollars into prisons, why not put them into rehabilitation centers for those who get caught with drug possessions?
America has the largest prison population per capita of any country in the world. Do you believe that we are arresting too many people?
Would you back a law to make prison time mandatory for anyone that employs illegal aliens, no exceptions?
The Federal Government spends $500 per second on the war on drugs, adding to the 90% of federal prisoners incarcerated for non-violent crimes. This is overshadowed by the cost of The War on Terror. As President, would you let these costly wars go on?
What will it take to end, in a timely decisive manner, the Global Drug War; a scheme of American Prohibition and world-wide U.S. Imperialism, that funds not only domestic violence and international terrorism, but also the Prison-Industrial Complex?
I am not especially confident that any of these questions will get posed tonight or at any of the forthcoming GOP debates, but I will continue hoping these issues might eventually get some attention at some point in this political/election cycle.
Some recent and older related posts:
- Will tonight's Tea Party GOP Debate discuss costly government programs like the drug war and mass incarceration?
- Ron Paul and Barney Frank introduce bill to let states set pot policy
- Might GOP start debating Texas crime and punishment with Rick Perry in the 2012 race?
- Rick Perry's death penalty record already a topic of press coverage inside the Beltway
- Will the death penalty come up in tonight's big GOP presidential candidate debate?
- "Perry draws applause in defending death penalty, hasn’t struggled over questions of innocence"
- Path started to place pot legalization on Colorado ballot in 2012
- Why pot legalization fans are likely to try again in 2012
- Effective commentary concerning political discussion of pot policy and the drug war
- Big international report calling global drug war a failure
- "Would Legalizing Marijuana Cut Law Enforcement Costs?"
- "Tea Party = Pot Party?"
- Might Sarah Palin's sensible points about pot get Tea Party types to push for sensible drug reforms?
- Thoughtful academic thoughts on ending marijuana prohibitions
- Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
Is it wise for notorious defendants to write to their sentencing judges?
The question in the title of this post is prompted by this recent New York Times article headined "In 7-Page Note, Drug Lord Asks a Judge for Leniency." Here is an excerpt:
“Good day to you, sir,” the letter to the judge began. “I am humbly asking if you could be lenient on me.” Judges receive letters all the time from defendants who are about to be sentenced, but this letter, seven pages long and neatly handprinted, came from no ordinary prisoner.
The writer was Christopher M. Coke, described by United States prosecutors as one of Jamaica’s most brutal drug lords. He led a trafficking ring from an armed stronghold in Kingston, moving guns and drugs between Jamaica and the United States, prosecutors said, and his soldiers patrolled the streets and guarded stash houses. He ordered murders, shootings and beatings, and, when one man stole drugs, the prosecutors said, Mr. Coke killed him with a chain saw.
Last year, Mr. Coke was arrested and sent to Manhattan, where he has since pleaded guilty to conspiracy charges. He could receive a 23-year sentence. And it was in that context that Mr. Coke, 42, took it upon himself to send a polite letter to the judge, Robert P. Patterson Jr. of Federal District Court.
Addressing him as “Justice Patterson,” Mr. Coke said he accepted responsibility for his actions, although he did not apologize in the letter. And he asked that the judge use his “discretion” to sentence him “below the guideline range.”
In doing so, Mr. Coke offered a list of 13 reasons, with some broken into subcategories. For one thing, he said, he had lost his mother recently. “I was told that while she was on her deathbed, she was crying and kept calling my name.” And his 8-year-old son had been traumatized by his arrest, he said. “I was told that he is constantly asking for his daddy,” Mr. Coke explained, adding “He cries all the times since I am gone.”...
Federal prosecutors had no comment on the Sept. 7 letter, which was signed “Sincerely, C. Coke” and mailed from the Metropolitan Correctional Center, where Mr. Coke is being held. His lawyers said he wrote the letter without their assistance. One, Frank A. Doddato, said the letter “humanized” his client. The other, Stephen H. Rosen, said: “There are two sides to Christopher Coke. Everyone only talks about one side.”
Of course, Judge Patterson will hear about the other side, from prosecutors and victims. At least one victim has already written. Maxine Riley, who described herself as a resident of the western Kingston area, asked the judge to impose a life sentence. She contended that Mr. Coke was personally responsible for the deaths of hundreds of Jamaicans, including her son, Dexter, who she said was killed by Mr. Coke’s gunmen when he was 16. “I hope that you exercise your judicial discretion to put him away forever,” she wrote. “Mr. Coke is the Hitler of the Caribbean; this is an opportunity for him and his murderous organization to be permanently dismantled.”
Some comparative perspective on executions and the death penalty
Over at CNN is this new piece headlined "World shocked by U.S. execution of Troy Davis," which suggests that all or nearly all countries of the world find Gerogia's application of the death penalty shocking. A more accurate headline would focus on Europeans being shocked, as many countries in Middle East and Far East still use the death penalty regularly. In particular, as this new Atlantic piece highlights, China is still the world's capital punishment king:
Research by Amnesty International found that 23 countries used the death penalty in 2010. The U.S., ranked fifth, executed 46 prisoners. Iran, ranked second, executed at least 252. China, according to Amnesty International, executed "thousands." The exact number is a state secret. The Dui Hua Foundation, a U.S.-based human rights non-profit that focuses on China, estimates China kills about 5,000 prisoners annually. In absolute terms, that would be about 14 executions daily, or in three days what the U.S. performs in an entire year. Most executions in China are reportedly carried out by lethal injection or a single gunshot to the head, although, as in the U.S., there does not appear to be a uniform national policy.
The statistics are less unflattering for China when view per capita. China has the largest population on Earth with 1.3 billion people; 5,000 executions would mean one in every 260,000 residents. In the U.S., the rate in 2010 was one in every 6.7 million. Iran and North Korea executed about one in every 300,000 and 460,000, respectively.
Two of the factors apparently contributing to China's frequent use of the death penalty are the troubled court system and a national policy that permits capital punishment for crimes that are not considered capital in most other countries. Corruption, embezzling, drug-related crimes, and even theft on a large enough scale can all get you killed in China. Last month, a Chinese telecommunications executive was sentenced to death for accepting bribes. In March, China sparked a diplomatic incident by executing three Filipino citizens on drug trafficking charges. Other non-violent crimes punished by death have included, for example, 43-year-old Du Yimin, killed in March 2008 after he borrowed $100 million for investment schemes that never panned out.
In addition, Iran is often mentioned as a notable and notorious user of capital punishment, and this recent news report, headlined "Iran hangs convicted teen murderer, drug trafficker," highlights why:
Iran on Wednesday carried out two hangings, including the public execution of a teenage boy convicted of killing an athlete billed as "Iran's strongest man," local media reported.
Despite calls by human rights group Amnesty International for an 11th-hour stay of the 17-year-old's execution, Alireza Molla-Soltani was sent to the gallows at the scene of the crime in the city of Karaj, west of the capital.
A large crowd of people had gathered to witness the hanging and security forces were present "to ensure the sentence was carried out without any glitches," the official IRNA news agency reported. Molla-Soltani was sentenced to death last month for stabbing the popular athlete, Ruhollah Dadashi, to death in mid-July. The teenager said at his trial he had killed only in self-defence after a driving dispute led him and two other youths into a confrontation with Dadashi, according to Amnesty.
Prosecution spokesman Ali Ramezanmanesh said the boy had reached "religious maturity" and was over 18 years of age. "The law views religious maturity as its criterion which is calculated according to the lunar calendar, therefore the convict is over 18 and there are no legal impediments" in the way of the hanging, he told Fars news agency. The Islamic lunar calendar is some 11 days shorter than the solar calendar, with 354 days a year....
Also on Wednesday, a man convicted of drug trafficking was hanged in prison in the southern city of Minab, the state television website reported.
Along with China, Saudi Arabia and the United States, Iran has one of the highest numbers of executions each year. The latest hangings bring to 203 the number of executions reported in Iran so far this year, according to an AFP tally based on media and official reports....
Tehran says the death penalty is essential to maintain law and order, and that it is applied only after exhaustive judicial proceedings. Murder, rape, armed robbery, drug trafficking and adultery are among the crimes punishable by death in Iran.
Tucson shooter wants to attend his competency hearing against his lawyers' advice
This new AP article, which is headlined "Loughner wants to be at hearing," highlights just some of the challenges of representing a high-profile and mentally shaky murder defendant. Here are the specifics:
The suspect in the Tucson shooting rampage wants to appear at a court hearing next week in Arizona despite objections from his lawyers that traveling from a Missouri prison facility to their mentally ill client's hometown would be disruptive.
Jared Lee Loughner has been at a prison facility in Springfield, Mo., since May 27 after he was found to be mentally unfit to stand trial. Experts have concluded Loughner suffers from schizophrenia and are trying to make him psychologically fit to trial.
The disagreement between Loughner and his attorneys about his presence at a hearing Sept. 28 in Tucson surfaced in a transcript of a conference call between lawyers and the judge on Monday. The transcript was made available late Tuesday. In the end, U.S. District Judge Larry Burns, in a ruling released Tuesday, agreed with prosecutors that Loughner must attend the hearing.
Loughner has pleaded not guilty to 49 charges stemming from the Jan. 8 shooting that killed six and wounded 13, including Rep. Gabrielle Giffords. Prison officials have forcibly medicated Loughner with psychotropic drugs after concluding he posed a danger at the prison.
Defense lawyers had opposed a request by prosecutors to make their client attend next week's hearing where Burns will consider whether it's probable Loughner can be made mentally fit for trial and whether to extend his nearly four-month stay at the prison by another eight months.
Loughner's lead attorney, Judy Clarke, told the judge she didn't think Loughner can help her advocate against an extension. "He is on suicide watch. He has been described as gravely disabled. We think it's an unnecessary risk to bring him to a hearing," Clarke said, adding that she saw nothing in the law that requires him to be there.
Prosecutors said they couldn't go forward with the hearing without Loughner and cited a federal law that implies that Loughner has a right to be there and confront witnesses.
Dr. Christina Pietz, a psychologist treating Loughner, testified that Loughner wanted to attend the hearing and was disappointed when learning that it had been postponed from Wednesday to Sept. 28. She said she believes Loughner has an ulterior motive to be in Tucson. "He wants to visit his mother and father," Pietz said. "In addition to that, he understands that there is a hearing to make a determination if he can be having an extended stay in Springfield. And that would also mean that he would continue to be medicated."...
"If Mr. Loughner is incompetent, it appears to me he remains incompetent," Burns said. "I don't know what good it would do to have him present at a hearing," Burns said, noting that his lawyers can't look to him for assistance because he hasn't been mentally competent. Still, the judge ruled that federal law appears to require his presence and said he was reluctant to grant a waiver for Loughner's presence in court if he wants to be there.
On Wednesday night, Clarke filed a motion to obtain notes of Loughner's recent conversations with Pietz that "defense counsel had not previously been privy" to. Clarke said the Bureau of Prisons "has withheld from the defense, while sharing with the prosecution, information, opinions and conversations pertaining to issues surrounding Mr. Loughner's competency and commitment, including statements he has made in response to questioning."
The hearing will mark Loughner's first court appearance since a May 25 hearing in which he was removed from the court after an outburst. Less than an hour into that hearing, Loughner lowered his head to within inches of the courtroom table and then lifted his head and began a loud and angry rant. "Thank you for the free kill. She died in front of me. Your cheesiness," Loughner said before U.S. marshals whisked him out of the courtroom.
Pietz said Loughner has made improvements. Prior to being forcibly medicated, he didn't make eye contact, a symptom of psychosis. But now he maintains regular eye contact, his physical hygiene has improved and he paces less over the last few weeks, Pietz said.
"The Evolution of Unconstitutionality in Sex Offender Registration Laws"
The title of this post is the title of this notable new article by Professor Catherine Carpenter, which is now available via SSRN. Here is the abstract:
More is not always better. Consider sex offender registration laws. Initially anchored by rational basis, registration schemes have spiraled out of control because legislators, eager to please a fearful public, have been given unfettered freedom by a deferential judiciary.
This particular article does not challenge the state’s legislative power to enact sex offender registration laws. Instead, this piece posits that, even if sex offender registration schemes were initially constitutional, serially amended sex offender registration schemes -- what this piece dubs super-registration schemes -- are not. Their emergence over the last several years demands reexamination of traditionally held assumptions that shaped the original legislation.
Two intertwined causes are responsible for the schemes’ constitutional downfall. The first is a legislative body eager to draft increasingly harsh registration and notification schemes to please an electorate that subsists on a steady diet of fear. When combined with the second cause, a Supreme Court that has yet to signal much needed boundaries, the ensuing consequence is runaway legislation that is no longer rationally connected to its regulatory purpose. Ultimately, this article is a cautionary tale of legislation that has unmoored from its constitutional grounding because of its punitive effect and excessive reach.
September 22, 2011 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack
Residual doubt, race, federalism and finality: which death penalty legal fronts might the Davis case impact?
Even though Troy Davis has now been executed by the state of Georgia, there is plenty more to say about the case and all the attention it garnered. Because I expect lots of others to keep talking about the case's import and possible impact concerning the death penalty, I doubt I will blog that much about the case in the future. However, I did have a few (too quick?) thoughts about some legal issues implicated by the Davis case which might become a focus for attention and reform for those who feel strongly that justice was poorly served or that the legal system looked bad in Georgia last night.
1. Residual doubt: I suspect that even those persons strongly confident about Davis's guilt would at least acknowledge that it was reasonable for others to have "residual doubt" about his guilt. The problem for Davis and his supporters is that none of our current death penalty laws demand (or even arguably allow) a defendant to get a lesser sentence or to be taken off death row based solely on "residual doubt." Juries are told to convict unless they have a "reasonable doubt," and a juror or reviewing judges can sensibly assert they have a residual doubt but not a reasonable one. (In the hub-bub over the Casey Anthony verdict, I surmise that critics of the jury acquittal might recognize "residual" doubt about her guilt, but they still thought the jury should not have deemed any doubt to be "reasonable.")
Often governors or clemency boards can and will commute a death sentence based on what I am calling "residual doubt." Indeed, Ohio Governor John Kasich commuted a death sentence on this ground just three months ago (blogged here) in a case similar to the Davis case in some important ways. Perhaps reformers will want to respond to the Davis case by more formally authorizing or even requiring juries, judges and others involved in death sentence review to reject or undo a death sentence based on only "residual doubt."
2. Race and federalism: I suspect that few would deny that race and geography played a part at least in the way the Davis case was perceived, if not also in the way it was handled. I believe Davis's lawyer has already labeled the execution a "legal lynching," and one need not be a student of history to appreciate the many ways in which the fact Davis was black, the fact his victim was white, and the fact this was all going on in the deep south all contributed to the case's salience for so many.
Still, in the wake of Supreme Court's landmark McClesky ruling now a quarter century ago, only two states (Kentucky and North Carolina) have passed legislation enabling defendants charged or sentenced to death to attack their sentences based on claims of racial disparity. More broadly, in the context of the death penalty, many continue to cling to federalism concepts as a defense for why federal executive and legislative officials should have had no role or even any say in what Georgia wanted to do. (The Terry Schiavo hub-bub a few years back bears recalling here: the removal of life support seems to be clearly a state law matter, but Congress got involved based on a commitment to life in that case.) Perhaps reformers will want to respond to the Davis case by pushing harder for Racial Justice Acts or for more federal oversight of state capital systems (beyond judicial oversight via habeas).
3. Finality: The real fundamental issue in the Davis case was the issue of finality: the judicial system is understandably (and justifiably?) loathe to undo or even question the outcome of a fair and constitutional trial no matter what future evidence emerges suggesting that the initial outcome was flawed. The problematic practicalities (and costs) of allowing most anyone who claims innocence after a lawful conviction to obtain a new trial based on new evidence leads me to think that few reformers will seek after the Davis case to undercut our legal systems' strong commitment to finality after a fair and constitutional trial. But this critical and too often under-discussed judicial commitment to finality is where the rubber always really hit the road in the Davis case.
A few older and recent posts on the Davis case and the (similar?) Ohio case that led to clemency:
- SCOTUS orders innocence hearing in Troy Davis case (Aug 2009)
- A year after SCOTUS intervenes, Troy Davis innocence hearing about to start (June 2010)
- "Innocence claim rejected: Troy Davis loses challenge" (Aug 2010)
- Will third time clemency hearing be the charm for Troy Davis on eve of his latest execution date?
- "Slain officer's family calls for Troy Davis' execution"
- Georgia board denies clemency to Troy Davis
- Executions number 1268 and 1269 of the modern US capital era go forward in Texas and Georgia
- Uncertainty prompts Ohio Parole Board to make unanimous recommendation to commute death sentence
- With execution date looming, how will Ohio's new governor deal with innocence-based clemency recommendation?
- "Kasich commutes convicted killer's sentence to life without parole"
"Texas sex offenders scramble to take advantage of 'Romeo and Juliet' law"
The title of this post is the somewhat ironic headline of this notable local article reporting on the ability for some Texans previously prosecuted for consensual underage sexual encounters to get free from the label "sex offender" and the state's sex offender registry. Here are the details:
A North Texas man, who we will call "Austin", may be among the first in the state to drop his name from the sex offender registry, under the new "Romeo and Juliet" law. The measure allows young lovers to erase a teenage romance, that turned criminal.
"I have been associated with the worst kind of human beings," said the 28-year old man. Austin says he took a plea bargain almost ten years ago, that landed him on the state registry for sex offenders. The plea followed a relationship with a 16-year old girl, when he was 18. He says the two were in love and their parents approved, but the law didn't agree. "People want to know who did I rape and they think I am the one hiding out in the bushes."
But, Austin is hopeful that he will be able to get his name off the list because of the new law. "It feels like a big weight is about to be lifted off my shoulders. There is a lot of hope," he said.
Austin will petition a judge in West Texas, where his case is located to set a hearing where the judge will rule on whether or not his name can be dropped from the list. Under the law, young lovers can petition if there is fewer than four years age difference, the minor is at least 15 and the sex was consensual. Lawmakers who supported the change believe the updated measure will make a difference for a sliver of the state's sex offenders.
"We had testimony where people who had a teenage romance would get married, but because the husband is a sex offender he can't be around the kids," Dallas State Senator, Royce West, said. West sponsored the new legislation that he says will allow valuable resources to be used to keep tabs on the truly dangerous offenders. "We need to make sure the resources are used in the most hideous situations, as opposed to teenage love affairs," West said.
I suppose we should all look out for follow-up articles in this series under headlines like "Texas sex offenders pleased to take advantage of new law that lets them avoid the sex offender label" and "Texas sex offenders who have avoided the sex offender label continue to support law that advantaged them."
September 22, 2011 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack
"NYC stock trader 'Octopussy' gets decade in prison"
The title of this post is the headline of this BusinessWeek report on the latest sentencing news from a high-profile insider trading case. Here are the interesting details:
A stock trader dubbed the Octopussy because he reached for so much inside information was sentenced Wednesday to 10 years in prison by a judge who said a harsh punishment was necessary because insider trading is so difficult to detect.
Zvi Goffer was convicted with two others in June in a conspiracy to pay bribes to coax confidential information out of two shady lawyers at a Manhattan firm. "Insider trading is very, very hard to detect," U.S. District Judge Richard Sullivan said as he also ordered Goffer to pay more than $10 million in restitution. "Because of that, it has to be dealt with harshly." He added: "These crimes are not going to be tolerated, certainly not in my courtroom."
The 34-year-old Goffer told the judge in a pre-sentencing letter that he now realizes he had warped perceptions of "survival of the fittest." He said "everyone is doing it" is not a good excuse for doing wrong. Goffer was among more than two dozen people convicted in what prosecutors called the biggest hedge fund insider trading case in history.
Given a chance to speak, Goffer apologized first to investors in the stocks in which he had an unfair advantage, saying: "They didn't have the information I had." He began crying when he apologized to his brother, Emanuel, who was convicted at trial along with him and is awaiting sentencing. A third defendant, Michael Kimelman, also awaits sentencing....
The sentence, one of the longest ever given to someone convicted of insider trading, caused Goffer's wife to break down in sobs. "What am I going to do?" she called out in court at one point. "It's not fair!" A woman beside her then shouted a profanity, causing Sullivan to rise from the bench and threaten to bring in U.S. marshals to make arrests. "This is a courtroom, not a street corner," he said.
Goffer was convicted by a jury that viewed evidence that he had arranged to pay two attorneys nearly $100,000 in 2007 and 2008 for inside tips on mergers and acquisitions. During the two-week trial, prosecutors introduced evidence that Goffer gave conspirators prepaid cellular telephones in an effort to reduce detection by law enforcement.
The judge said the message of the prosecution to Wall Street has to be more than a warning that prepaid telephones are not the best way to dodge prosecution. He said Goffer had repeatedly demonstrated that he knew he was breaking the law and didn't care. "It's a game that you and others seem to find exciting," he said.
Before starting his own firm, Goffer worked for nine months for Raj Rajaratnam, a one-time billionaire who was convicted earlier this year of charges at his own insider trading trial... Rajaratnam and Goffer were among more than two dozen people convicted in a case that utilized an unprecedented number of wiretaps for a white-collar case. U.S. Attorney Preet Bharara has said the government was responding to the increased use of techniques more commonly used by drug dealers and mobsters to cover up their crimes.
This Bloomberg piece, headlined "Galleon Insider Trading Case Scorecard: Average Prison Term Is Three Years," provides an effective review of all the sentences so far imposed in this matter. The piece starts this way:
Galleon Group LLC co-founder Raj Rajaratnam will be sentenced on Oct. 13 for insider trading after being convicted by a jury in Manhattan federal court.
Prosecutors say Rajaratnam, who was convicted in May, should serve as long as 24 1/2 years in prison, calling him the “modern face of insider trading.” Yesterday, judges in Manhattan sentenced two other convicted insider traders -- Zvi Goffer and Winifred Jiau -- to prison terms of 10 years and four years, respectively.
Since Rajaratnam’s arrest in October 2009, judges in Manhattan federal court have sentenced 12 defendants in cases linked to Galleon. All but two pleaded guilty. The average prison term has been 35.75 months, or almost three years behind bars.
September 21, 2011
Executions number 1268 and 1269 of the modern US capital era go forward in Texas and Georgia
As detailed in this local article from Texas, just before 7:30pm east coast time "[w]hite supremacist gang member Lawrence Russell Brewer was executed Wednesday evening for the infamous dragging death slaying of James Byrd Jr., a black man from East Texas."
And, as detailed in this local article from Georgia, after a delay of more than three hours while the US Supreme Court considered and then turned down a final request to delay the execution, just after 11pm east coast time "[o]ne the most controversial death penalty cases in the state’s history ended Wednesday night as Georgia executed Troy Anthony Davis, a convicted cop killer who adamantly maintained his innocence."
As the title of this post spotlights, the executions of Lawrence Russell Brewer in Texas and Troy Anthony Davis in Georgia follow 1267 prior executions of convicted murderers over the last 35 years in the modern death penalty era in the United States. For a variety of reasons, execution number 1269 involving Troy Davis garnered more attention than any other execution in recent memory. Whether all the attention brought to this sentencing issue has any significant and enduring legacy remains to be seen. Civil comments on any lessons to be drawn from, or the likely legacy of, today's death penalty events are welcome.
Some late day pending execution headlines from all over (and a question)
I am about to go off-line for the next few hours (if not longer), and there are two high-profile executions scheduled to be scheduled during this time. Here are some recent headlines from an array of sources covering these stories:
From the Huffington Post here, "Troy Davis And Lawrence Brewer, A Tale Of Two Executions"
From CNN here, "Appeal to stay Troy Davis execution denied, court says"
From the Houston Chronicle here, "The city of Jasper still copes with racial tensions 13 years after dragging death"
From Reuters here, "Victim's son objects as Texas sets execution in hate crime death"
From the Atlanta Journal-Constitution here, "Kim Kardashian, Diddy, Big Boi, Indigo Girls and other celebs tweet to protest Troy Davis execution"
From The Nation here, "Wider Issues Surrounding the Execution of Troy Davis — and the Death Penalty in America"
In addition to hoping the comments to this post will stay civil, I would also like to hear thoughts or opinions on a few execution-related questions: Why hasn't the Troy Davis team sought to contest constitutionally aspects of Georgia's execution process and/or make a final request that the Davis execution be recorded?
As regular readers know, death row defendants in recent years have been quite successful at slowing down the "machinery of death" in numerous states by raising concerns about the way the states operate this machinery. I have been wondering all day today, especially as all sorts of other last-ditch legal efforts are being made to try to stop the Davis execution, whether the Davis defense team has tried or even considered the kind of 1983 lethal injection suit that has worked for other defendants in other states.
"Brown: Prisons give state ‘healthiest damn criminals in the world’"
The title of this post is the headline of this interesting new local report on what sounds like an interesting local speech given by California Gov Jerry Brown today. Here is how the piece starts:
Gov. Jerry Brown said Wednesday that California’s prison system, under pressure from the courts, has focused on turning inmates into “the healthiest damn criminals in the world” but has done little to make them less likely to commit another crime after they leave custody.
County sheriffs, probation officers and others at the local level could do a much better job if given the funding and the authority to supervise low-level offenders and try to rehabilitate them, Brown said.
The Democratic governor, speaking to a gathering of 500 local law enforcement officials, heralded the Oct. 1 beginning of a new program to shift responsibility for 34,000 inmates from the state to the counties. “This does put the problem closer to where people are,” he said. “When people commit a crime, they have a family and they have a neighborhood and there’s a history there.”
If they are sent to state prison, even for a short time, he said, they disappear into a system that operates under the authority of 19 separate court orders, with hundreds of overseers walking the grounds, “taking notes” and then going back to courts to force the state to change its policies. The biggest of them all was a recent order from the US Supreme Court requiring the state to reduce its prison population by more than 30,000 inmates by 2013.
“We have lots of cooks in the kitchen,” Brown said. “We are running an ongoing legal experiment without precedent.” Brown said all of those orders have resulted in the most expensive prison system in the world, one that is mandated to give inmates health care, dental care, mental health counseling and other support but does not focus enough on changing what they will do once they leave custody.
“The goal up to now has been not to try to change the lives of the criminal, but to make sure they are the healthiest damn criminals in the world,” he said. “That they live longer, they run faster, and they shoot straighter. That’s been the game plan. We are going to move beyond that. We are going to start focusing on what will work.”
County officials have been working with Brown since January to craft a plan that will help the state relieve prison overcrowding while giving local officials the tools they need to handle more inmates. The process will be gradual, with only new inmates going to county jails while felons now in state prison complete their sentences there.
While some local officials fear their jurisdictions will be overwhelmed by the new responsibilities, others have welcomed the challenge. “It’s our belief that with adequate funding, constitutionally protected funding, we can get the job done and do it better than the state of California,” said Riverside County Supervisor John F. Tavaglione, president of the California State Association of Counties.
Of sentencing note around the circuits yesterday
Teaching and the buzz over Troy Davis and other capital cases kept me from keeping up effectively with all the circuit sentencing rulings yesterday, but handed down were three notable (and notably different) opinions from three different circuits yesterday that I wanted to at least flag here:
From the Second Circuit, US v. Archer, No. 10-4683 (2d Sept. 20, 2011) (available here), discusses a bunch of important sentencing procedure issues in a fraud case.
From the Fifth Circuit, In re Sparks, No. 11-5044 (5th Sept. 16, 2011) (available here), holds that Graham's Eighth Amendment restriction on LWOP sentence is "a new and retroactive rule of constitutional law."
From the Sixth Circuit, Crump v. Lafler, No. 09-1073 (6th Sept. 20, 2011) (available here), holds (via a split panel with a spirited dissent) that Michigan's parole scheme does not create a constitutionally protected liberty interest.
As always, readers are encouraged to help me figure out if one or more of these opinions are especially important and merit extended blog consideration.
"Significant Entanglements: A Framework for the Civil Consequences of Criminal Convictions"
The title of this post is the headline of this interesting-looking new article by Professor Colleen Shanahan, which is now available via SSRN. Here is the abstract:
A significant and growing portion of our population is in or has recently been in prison. Nearly all members of this population will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes.
Padilla v. Kentucky, heralded by some as a watershed and others as an anomaly, is a first step in matching the law to the practical reality of the civil consequences of criminal convictions. This article examines Padilla and the context in which it was decided and suggests that, although the dissenters in Padilla may be correct that the opinion will be difficult to apply in a coherent way, the solution to this challenge can be found in the decision itself, which has laid the foundation for a legal doctrine of civil consequences that reflects the reality of these consequences. The Supreme Court’s recent decision in Turner v. Rogers underscores that the Court’s approach in these two cases creates the opportunity for a more realistic, consistent, and just doctrine of civil consequences of criminal convictions.
This article begins the process of defining this doctrine by suggesting that instead of inquiring into whether consequences are direct or collateral, the test used in the past, courts should inquire into whether these civil consequences are “significant entanglements” of civil and criminal law. First, courts should analyze whether the civil consequence is significant, in both an objective and subjective sense. Second, courts should examine whether the consequence is entangled with the criminal process. Where significant entanglements exist, corresponding protections should follow. The article goes on to suggest that the significant entanglement framework can be used to analyze whether Sixth Amendment protections should apply to a particular civil consequence at a particular stage of the criminal process. Further, the significant entanglement framework applies outside the Sixth Amendment to understand the other constitutional protections that may be applied by courts to civil consequences of criminal convictions. Thus, the significant entanglement framework is the next step in developing a new doctrine for the protections that apply to civil consequences of criminal convictions.
Latest notable news in the Troy Davis case
This morning, with the scheduled execution of Troy Davis now only hours away, there are new developments in what has become perhaps the highest-profile capital case in a decade. Here are the headlines reporting the new news:
- From CBS News here, "Troy Davis, facing execution, seeks polygraph"
- From AP here, "Late appeal before Ga. execution"
The polygraph test request is an interesting new wrinkle, but I find curious that Davis and his defense team are only now talking about such a test. The controversial nature and uncertain outcome of polygraphs results make it usually wise for advocates to avoid polygraphs unless and until they are very confident talking about the test can help their cause. For that reason, I fully undersatnd why Davis and his defense team would not request such a test in conjunction with his 2010 innocence hearing in federal court. But, once that proceeding went badly for Davis, and especially once the Georgia Board announced last week that it would give Davis one more shot at making his case for clemency, it seems to me Davis and his defense team should have started talking about a polygraph test rather than wait until after that Board denied clemency yet again.
September 20, 2011
SCOTUS stays yet another Texas execution pending cert consideration
As detailed in this CNN report, which is headlined "Texas death row inmate granted another Supreme Court reprieve," the Justices have blocked a planned Texas execution yet again. Here are the details:
The Supreme Court for the third time this year has stopped the pending capital punishment of a Texas inmate, giving lawyers for the man more time to file their appeals.
The justices on Tuesday issued an order granting a stay of execution for Cleve Foster, about 2 1/2 hours before his scheduled lethal injection. The Gulf War veteran was convicted along with another man of the 2002 murder of Nyanuer "Mary" Pal, a Sudanese immigrant he met at a Fort Worth bar. The court indicated it would need more time to rule on the inmate's claims of prior ineffective assistance of counsel, and related claims of innocence of the murder.
This is the third time Foster, 47, has been granted a high court reprieve. His previous scheduled execution was stopped in January and April, once after he had already been given his last meal....
Foster has blamed his co-conspirator for the murder. His lawyers in their Supreme Court appeal presented letters from three fellow inmates who said co-defendant Sheldon Ward told them he acted alone in Pal's murder. The state countered Ward's statements to a psychologist implicating Foster as the mastermind behind the killing. They also said DNA from both men were found in the victim.
Texas has a planned lethal injection Wednesday. Lawrence Brewer, 44, was one of two white men convicted in the 1998 dragging death of James Byrd Jr., an African-American. That widely reported crime led to national movement to step up prosecutions and penalties for hate crimes. Brewer has no pending appeals. It would be the 11th execution this year in Texas, the most active death-penalty state.
Important sentencing ruling in favor of lobbyist involved in Abramoff scandal
As detailed in this new Washington Post piece, which is headlined "Judge slashes recommended sentencing guidelines for defendant convicted in Abramoff scandal," a high-profile case has resulted today in an important sentencing ruling. Here are the basics:
A federal judge on Tuesday dramatically cut the Justice Department’s recommended sentencing range for a lobbyist convicted of bribing public officials in the Abramoff scandal and said prosecutors cannot retaliate against him for fighting his charges at trial.
The prosecutors had recommended ex-lobbyist Kevin Ring get a 17- to 22-year prison sentence for treating federal officials to meals and event tickets in exchange for favors. That would have exceeded the time served by all 20 other defendants in the conspiracy combined, including ringleader Jack Abramoff who was sentenced to four years.
The difference is that Ring, a 40-year-old from Kensington, Md., who worked for Abramoff, made the rare decision among defendants in the scandal to go to trial instead of reaching a plea deal. He tried to argue his wining and dining of government officials was just standard lobbyist work to build relationships with government figures. An initial jury could not agree whether he was guilty or not. He was convicted by a second jury trial in November.
Ring’s attorneys argue prosecutors’ sentencing recommendations were retaliation for exercising his constitutional right to trial. U.S. District Judge Ellen Segal Huvelle wrote in an opinion that “it is easy to see why such an inference might be justified.”
“The notion that an ostensibly objective system of sentencing guidelines can produce such wildly varying results for essentially the same offense conduct is deeply troubling,” Huvelle wrote. She ruled that Ring’s guideline range should be 3-5 years, but she is free to punish him outside that range at sentencing scheduled for Oct. 26....
Only in Ring’s case prosecutors are arguing he should get an enhanced sentence under the guidelines because of the grants and appropriations he and his co-conspirators were able to get for his clients at the Abramoff firm in exchange for his corrupt relationships with public officials. They put that value at more than $14 million, including $7.3 million in increased funding for a jail for an Indian tribe client.
Prosecutors had argued at a hearing last month on the issue that they were not retaliating against Ring, but instead were free to be lenient toward defendants who agreed to plead guilty and cooperate with their investigation. Huvelle wrote their argument was “unpersuasive.”
She said the prosecutors’ position could discourage defendants from exercising their right to trial. She wrote that while there might be disparities in the ultimate sentence that cooperating defendants get, “the government cannot retaliate against defendant for exercising his rights.”
Ninth Circuit rejects Second Amendment attack on criminalizing drug addict gun possession
In US v. Dugan, No. 08-10579 (9th Cir. Sept. 20, 2011) (available here), a Ninth Circuit panel needs only two pages to reject a federal defendant's Second Amendment challenge to a federal statute that makes it a felony for a drug addict to possess a firearm. Here are excerpts from the brief opinion (with a bit of my emphasis added toward the end):
We consider the constitutionality of 18 U.S.C. § 922(g)(3) ... [and] uphold the statute against this Second Amendment challenge.
Defendant Kevin Dugan illegally grew and sold marijuana. He also smoked marijuana regularly. When police officers responded to a report of domestic violence at his home one afternoon, they discovered his marijuana operation and arrested Defendant. Because Defendant also had a business of dealing in firearms, a jury convicted him of, among other things, shipping and receiving firearms through interstate commerce while using a controlled substance, in violation of § 922(g)(3).
Defendant argues that § 922(g)(3) runs afoul of the Second Amendment because it deprives him of his constitutional right to possess and carry weapons in case of confrontation.... [But the Supreme] Court told us that “nothing in [its Heller] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Two of our sister circuits have taken that statement to mean that § 922(g)(3), which embodies a longstanding prohibition of conduct similar to the examples mentioned in Heller, permissibly limits the individual right to possess weapons provided by the Second Amendment. United States v. Yancey, 621 F.3d 681, 687 (7th Cir. 2010) (per curiam); United States v. Seay, 620 F.3d 919, 925 (8th Cir. 2010), cert. denied, 131 S. Ct. 1027 (2011). We agree.
Like our sister circuits, we see the same amount of danger in allowing habitual drug users to traffic in firearms as we see in allowing felons and mentally ill people to do so. Habitual drug users, like career criminals and the mentally ill, more likely will have difficulty exercising self-control, particularly when they are under the influence of controlled substances. Moreover, unlike people who have been convicted of a felony or committed to a mental institution and so face a lifetime ban, an unlawful drug user may regain his right to possess a firearm simply by ending his drug abuse. The restriction in § 922(g)(3) is far less onerous than those affecting felons and the mentally ill. Yancey, 621 F.3d at 686-87. Because Congress may constitutionally deprive felons and mentally ill people of the right to possess and carry weapons, we conclude that Congress may also prohibit illegal drug users from possessing firearms.
I find the logic of this opinion quite suspect, though I fear the usual Second Amendment crowd will not be eager to assail the Ninth Circuit panel's ruling here. Moreover, I cannot not help but notice that, in the second sentence of the last paragraph, the Ninth Circuit panel jumps from talking about felons to referencing "career criminals" (I have added the emphasis here). Indeed, the very use of this legally irrelevant and inflamatory term is one of many reasons I find the logic of this opinion suspect.
Obviously, not all felons are "career criminals." More to the point, perhaps, I find intriguing not only the notion that all criminals and mentally ill and habitual drug users are those "more likely [to] have difficulty exercising self-control," but also the suggestion that all those who are "more likely [to] have difficulty exercising self-control" can, consistent with Second Amendment, be subject to severe criminal punishment for merely possessing a gun for personal self-defense in the home.
Logic aside, this panel opinion is on solid ground when it notes that all persons who have committed any felony (including Martha Stewart and Scooter Libby any many others without any history of violence) are forever subject to stiff federal criminal penalties under current law for possessing a gun even in their homes for self-defense. Whether that law and others of a similar ilk are so clearly free from serious Second Amendment scrutiny based on Heller's dicta is a question I will continue to raise in this space in response to opinions like the panel work today in Dugan.
Georgia board denies clemency to Troy Davis
My students in class today will hear (yet again) how wrong I can be, as I had predicted to them last week that the Georgia Board of Pardons and Paroles would this time vote to commute Troy Davis's death sentence. However, as this lengthy Atlanta Journal-Constitution article reports, this morning the "Board of Pardons and Paroles had declined to commute the death sentence of Troy Anthony Davis." Here is more from the AJC report:
"We've been here three times before," said Anneliese MacPhail, mother of Mark Allen MacPhail, who was shot to death while working a second job in 1989. "This is our fourth time [to face an execution date] so you get kind of weary of it and [I] don’t know if I can believe this. We are ready to close this book and start our lives. This has been a long haul."
The board released its decision just after 8 a.m., after spending an entire day hearing from Davis' supporters and then prosecutors and MacPhail's relatives.
The Davis family said through a spokeswoman they were not ready to comment on the decision Tuesday morning but may hold a news conference later in the day. They are still planning to visit Davis at the Georgia Diagnostic and Classification Prison near Jackson, the location of the state's death row and execution chamber. "It’s the wrong decision," said one of Davis' attorneys, Jason Ewart. "It’s a mistake."
He said the five-member board ended its presentation after three hours while the other side -- prosecutors and the MacPhail family -- was given at least four hours. “It sounds like they [prosecutors and family members] just brow beat them [the board]," Ewart said.
The Davis legal team is considering a last-ditch effort in the courts even though Davis has exhausted his appeals, Ewart said.
Davis' case has already taken more unexpected turns than just about any death-penalty case in Georgia history and his innocence claims have attracted international attention. Its resolution was postponed once again when the parole board late Monday announced it would not be making an immediate decision as to whether Davis should live or die. Davis, 42, is scheduled to be put to death by lethal injection on Wednesday at 7 p.m. at the state prison in Jackson....
While some states give the governor the authority to commute a sentence of someone about to be executed that is not the case in Georgia; that power lies with the parole board. Three years ago, the board declined to commute Davis' death sentence to life with or without parole, but it has three new members since that decision. Over the past decade, the board has commuted three death sentences -- Alexander Williams in 2002, James Willie Hall in 2004 and Samuel Crowe in 2008....
Calls for Davis to be spared execution have been made by numerous dignitaries, including former President Jimmy Carter, Pope Benedict XVI, former FBI Director William Sessions, former Georgia Supreme Court Chief Justice Norman Fletcher and Larry Thompson, the former deputy U.S. attorney general. Davis' advocates, including Amnesty International and the NAACP, have used social media to rally worldwide support. Last week, Davis' supporters presented the parole board with the names of more than 663,000 people asking that Davis be granted clemency.
This is the fourth time the state of Georgia has set an execution date for Davis. On three prior occasions, he was granted stays -- twice just hours before his execution was to be carried out.
On one occasion, the U.S. Supreme Court stepped in and ordered an extraordinary hearing, giving Davis the chance to clearly establish he was an innocent man. But a Savannah judge, after hearing two days of testimony, ultimately ruled that while Davis’ new evidence “cast some additional, minimal doubt on his conviction, it is largely smoke and mirrors.”
A few older and recent posts on the Davis case:
- SCOTUS orders innocence hearing in Troy Davis case (Aug 2009)
- A year after SCOTUS intervenes, Troy Davis innocence hearing about to start (June 2010)
- "Innocence claim rejected: Troy Davis loses challenge" (Aug 2010)
- Will third time clemency hearing be the charm for Troy Davis on eve of his latest execution date?
- The latest news (and helpful background) on the Troy Davis case
- "Slain officer's family calls for Troy Davis' execution"
UPDATE: The official statement from the Georgia Board of Pardons and Paroles is short and available at this link. Here is the text in full:
Monday September 19, 2011, the State Board of Pardons and Paroles met to consider a clemency request from attorneys representing condemned inmate Troy Anthony Davis. After considering the request, the Board has voted to deny clemency.
Troy Anthony Davis was convicted in 1991 of the murder of 27-year old Savannah Police Officer Mark MacPhail. On August 19, 1989, MacPhail was working in an off-duty capacity as a security officer at the Greyhound Bus Terminal which was connected to the Burger King restaurant located at 601 W. Oglethorpe Avenue. At approximately 1 a.m., on that date, Officer MacPhail went to the Burger King parking lot to assist a beating victim where MacPhail encountered Davis. Davis shot Officer MacPhail and continued shooting at him as he lay on the ground, killing MacPhail. Davis surrendered on August 23, 1989.
Davis is scheduled to die by lethal injection September 21, 2011, at 7 p.m., at the Georgia Diagnostic and Classification Prison in Jackson, Georgia.
Though not stated expressly, I assume the vote to deny clemency here was unanimous (5-0). And, as the statement suggests, it would appear that not a single member of the Georgia Board of Pardons and Paroles has even residual doubts about Davis's guilt in the murder of MacPhail 22 years ago.
"Drug deaths now outnumber traffic fatalities in U.S., data show"
The title of this post is the headline of this effective and very interesting article from this past weekend in the Los Angeles Times. After reading this piece and seeing the latest data, I am now wondering if we need to radically rethink our approach to the drug war to focus on big pharma as the most dangerous kingpin and doctors as their pushers:
Propelled by an increase in prescription narcotic overdoses, drug deaths now outnumber traffic fatalities in the United States, a Times analysis of government data has found. Drugs exceeded motor vehicle accidents as a cause of death in 2009, killing at least 37,485 people nationwide, according to preliminary data from the U.S. Centers for Disease Control and Prevention.
While most major causes of preventable death are declining, drugs are an exception. The death toll has doubled in the last decade, now claiming a life every 14 minutes. By contrast, traffic accidents have been dropping for decades because of huge investments in auto safety.
Public health experts have used the comparison to draw attention to the nation's growing prescription drug problem, which they characterize as an epidemic. This is the first time that drugs have accounted for more fatalities than traffic accidents since the government started tracking drug-induced deaths in 1979.
Fueling the surge in deaths are prescription pain and anxiety drugs that are potent, highly addictive and especially dangerous when combined with one another or with other drugs or alcohol. Among the most commonly abused are OxyContin, Vicodin, Xanax and Soma. One relative newcomer to the scene is Fentanyl, a painkiller that comes in the form of patches and lollipops and is 100 times more powerful than morphine. Such drugs now cause more deaths than heroin and cocaine combined....
Overdose victims range in age and circumstance from teenagers who pop pills to get a heroin-like high to middle-aged working men and women who take medications prescribed for strained backs and bum knees and become addicted.
A review of hundreds of autopsy reports in Southern California reveals one tragic demise after another: A 19-year-old Army recruit, who had just passed his military physical, took a handful of Xanax and painkillers while partying with friends. A groom, anxious over his upcoming wedding, overdosed on a cocktail of prescription drugs. A teenage honors student overdosed on painkillers her father left in his medicine cabinet from a surgery years earlier. A toddler was orphaned after both parents overdosed on prescription drugs months apart. A grandmother suffering from chronic back pain apparently forgot she'd already taken her daily regimen of pills and ended up double dosing....
The seeds of the problem were planted more than a decade ago by well-meaning efforts by doctors to mitigate suffering, as well as aggressive sales campaigns by pharmaceutical manufacturers. In hindsight, the liberalized prescription of pain drugs "may in fact be the cause of the epidemic we're now facing," said Linda Rosenstock, dean of the UCLA School of Public Health.
In some ways, prescription drugs are more dangerous than illicit ones because users don't have their guard up, said Los Angeles County Sheriff's Sgt. Steve Opferman, head of a county task force on prescription drug-related crimes. "People feel they are safer with prescription drugs because you get them from a pharmacy and they are prescribed by a doctor," Opferman said. "Younger people believe they are safer because they see their parents taking them. It doesn't have the same stigma as using street narcotics."
The triumph of public health policies that have improved traffic safety over the years through the use of seat belts, air bags and other measures stands in stark contrast to the nation's record on prescription drugs. Even though more people are driving more miles, traffic fatalities have dropped by more than a third since the early 1970s to 36,284 in 2009. Drug-induced deaths had equaled or surpassed traffic fatalities in California, 22 other states and the District of Columbia even before the 2009 figures revealed the shift at the national level, according to the Times analysis....
Drug fatalities more than doubled among teens and young adults between 2000 and 2008, years for which more detailed data are available. Deaths more than tripled among people aged 50 to 69, the Times analysis found. In terms of sheer numbers, the death toll is highest among people in their 40s. Overdose deaths involving prescription painkillers, including OxyContin and Vicodin, and anti-anxiety drugs such as Valium and Xanax more than tripled between 2000 and 2008.
The rise in deaths corresponds with doctors prescribing more painkillers and anti-anxiety medications. The number of prescriptions for the strongest pain pills filled at California pharmacies, for instance, increased more than 43% since 2007 — and the doses grew by even more, nearly 50%, according to a review of prescribing data collected by the state.
Though I am not versed in this Manning this kind of CDC data, it is worth putting these fatality numbers in context with CDC assessments of death resulting from other drugs that are even more lightly regulated that prescription pain-killers: according to the CDC here and here, in the US "tobacco use is responsible for about one in five deaths annually (i.e., about 443,000 deaths per year, and an estimated 49,000 of these tobacco-related deaths are the result of secondhand smoke exposure)" and alcohol is responsible for nearly 40,000 deaths annually attributable to liver disease or alcohol-induced deaths excluding accidents and homicides.
Any and all efforts to spin all this data are both welcome and encouraged. One might readily say these data show we waste far too much time worrying about the harms of illegal drugs and far too little time worrying about the harms of legal drugs. But one might also say that these data show how much more effective we are in preventing "collateral damage" when governments prohibit or heavily regulate a drug's distribution rather than just leave matters largely in the hands of the marketplace as in the case of tobacco and alcohol. And, of course, just where concerns about liberty and the pursuit of happiness should fit into a discussion of drug-related life and death calculations is always a worthy topic for additional debate.
Disappointing neglect of crime and punishment among this year's MacArthur "geniuses"
Especially given the historic importance and enduring political salience of crime and punishment issues, I am disappointed (but not surprised) that the latest group of MacArthur "genius" grant recipients does not include a single person focused on crime and punishment issues. This New York Times report on the grants provides the basic background:
An economist whose investigations into student achievement examined the impact of rewards for good grades; a Pulitzer Prize winner who was the country’s 16th poet laureate; and a clinical psychologist seeking to pinpoint who is at risk for suicide were among the 22 recipients of the $500,000 “genius awards,” to be announced on Tuesday by the John D. and Catherine T. MacArthur Foundation.
This year, as in years past, the 12 men and 10 women selected are a mix of the well known and the little known, and they represent a broad swath of the arts and sciences. The MacArthur award, which has been bestowed on 850 people since the program began in 1981, comes in five annual payments of $100,000, with no strings attached....
Robert Gallucci, the president of the MacArthur Foundation, said many factors are considered when choosing fellows. The secretive selection process relies on hundreds of anonymous nominators to help identify potential honorees. “Fellows are selected for their creativity, originality and potential to make important contributions in the future,” Mr. Gallucci said.
The full list of this year's MacArthur fellows, with bios about each, can be found at this webpage. Though I failed to find any fellows with any apparent history concerning crime and punishment issues, I did find this mini-mission statement on the MacArthur Foundation: "[W]e work to defend human rights, advance global conservation and security, make cities better places, and understand how technology is affecting children and society." Regular readers should not be surprised that I strongly believe that a better understanding of modern crime and punishment trends is central and essential to defending human rights, advancing ... security, making cities better places, and assessing how technology is affecting children and society.
Notably, in prior years, folks with crime and punishment connections have gotten these genius grants — e.g., David Simon of Homicide and Wire fame got a grant in 2010; a journalist and a law professor working on criminal justice issues got grants in 2009. Perhaps the real problem is not with how the MacArthur folks make grant selections, but rather a shortage of people working with "creativity, originality and [having the] potential to make important contributions in the future" in the arena of crime and punishment.
A remarkable life-saving reentry story from pro hockey via a murder conspirator
This new AP story, headlined "Mike Danton Uses Prison Skills to Save Teammate," tells a story that sounds like the plot of a mediocre made-for-TV movie. Here are the remarkable details:
Former NHL player Mike Danton was sent to prison for plotting to take a life. In his return to professional hockey, the skills he learned in jail may well have saved one.
Danton, who served a five-year jail term for conspiracy to commit murder, was playing in his first game with Swedish third-division club Ore on Sunday when his linemate Marcus Bengtsson hit his head on the ice after a hard hit and started convulsing. Using the first-aid training he received in prison, Danton dropped to the ice as well, waited for Bengtsson's jaw to unclench and then shoved his hand into his teammate's mouth to stop him from choking on his own tongue.
Danton was convicted in a failed murder-for-hire plot in 2004, and wrote on his blog that "one of the luxuries" of his jail stint was the chance to become a certified first aid responder. "I have seen seizures before. In prison, druggies would come in off the streets and have withdrawals," he wrote. "So, when the convulsions did not (stop) after a couple of minutes, I knew something was wrong."
After Danton stopped the choking, other teammates helped him put the 21-year-old Bengtsson on his side before an ambulance arrived and took him to a hospital, where he was diagnosed with a concussion and kept overnight....
Bengtsson told Tuesday's edition of local newspaper Dalarnas Tidning that the only thing he can remember from the incident is feeling his leg starting to shake before passing out — and then seeing Danton and other teammates standing over him when he woke up. "I can't describe how thankful I am to Mike and all the others who helped me," Bengtsson said. "It could have been a lot worse."
Danton said he realized quickly that Bengtsson was in danger of choking on his tongue. "With several players and other help surrounding (Bengtsson) on the ice, his face went from normal tone to Christmas red to snow white," he wrote. "In that process, he was on his back and his jaw became locked while bubbles of blood began to spew between his teeth. Only one thing came to mind. His tongue, I thought."
Danton said he had to wait several minutes for Bengtsson's mouth to open before he managed to get his fingers inside "and clawed at his tongue." When the jaw started to clamp down on his fingers again seconds later "I ripped them out before I lost them," he wrote.
Danton was sentenced to 7½ years in prison after pleading guilty in a plot that prosecutors said targeted David Frost, Danton's former junior coach who went on to become his mentor and agent. However, he was released on parole in 2009 after admitting that the intended target had actually been his father, Steve Jefferson.
Danton was a fifth-round pick by New Jersey in 2000 and played 87 career NHL games for the Devils and St. Louis. He was arrested while a member of the Blues in 2004 following a playoff game at San Jose.
September 19, 2011
You make the (sentencing) call: does insider trading merit decades in prison?
This latest insider-trading installment of "You make the (sentencing) call" is prompted by this lengthy new piece from the New York Times, which is headlined "In Galleon Case, Prison Term Is Seen as Test." Here are excerpts:
Federal prosecutors want to send the convicted hedge fund chief Raj Rajaratnam to prison for as long as 24 years, which would be the longest insider trading sentence in history. How a judge rules next week on Mr. Rajaratnam’s punishment is being seen in legal circles as a litmus test of whether the crime of insider trading justifies such a long prison term.
In May, a jury convicted Mr. Rajaratnam, the head of the hedge fund the Galleon Group, of 14 counts of securities fraud and conspiracy. Prosecutors, calling him “the modern face of illegal insider trading,” placed him at the center of a vast insider trading ring, accusing him of using a global network of tipsters to gain about $64 million from illegal stock trading.
The question is whether such a sentence — longer than the average federal prison term for murder — is appropriate. “Given the magnitude of the crimes, it’s hard to feel any pity for him,” said Harlan J. Protass, a defense lawyer who teaches a sentencing class at the Benjamin N. Cardozo School of Law. “Still, there is a real question whether such a lengthy sentence is warranted for an insider trading offender.”...
Today, prison terms measured in decades are common for white-collar criminals. In 2005, Bernard J. Ebbers, the former chief executive of WorldCom, was sentenced to 25 years in prison for a huge accounting fraud. Earlier this year, Lee B. Farkas, a former mortgage company executive, received a 30-year term for his role in a fraud that the government says caused $2.9 billion in losses. On Monday, a federal judge in Miami sentenced Marianella Valera, a former mental health company executive, to 35 years in prison for her role in a $205 million fraud at American Therapeutic; a 50-year sentence was earlier imposed on her co-defendant, Lawrence Duran.
For Mr. Rajaratnam, the government has requested a sentence from 19 years and seven months to 24 years and five months, based on federal sentencing guidelines. The government said he did not deserve leniency because he was a “fundamentally deceptive and dishonest person” who had lied under oath in a deposition and had tried to cover up his crimes.
If Judge Richard J. Holwell of the Federal District Court in Manhattan issues such a sentence on Sept. 27, it will be the longest prison term ever for an insider trading crime. A recent study by Bloomberg News of 43 defendants sentenced in federal court in Manhattan for insider trading in the last eight years found that the longest sentence was 10 years, to a Credit Suisse banker convicted in 2008 of leading a $7.8 million scheme.
Mr. Rajaratnam’s lawyers call the proposed sentence “grotesquely severe” and argue that “the advisory guidelines severely overstate the seriousness of the instant offenses, and would expose Mr. Rajaratnam to a sentence grossly out of proportion to the sentences imposed on other insider trading defendants.”
They point out that the sentence is not only disproportionate to the sentences imposed in other insider trading cases, but also greater than the average federal sentence for murder (23 years), kidnapping (14 years) or sexual abuse (nine years), according to the United States Sentencing Commission.
His lawyers also criticize prosecutors for comparing Mr. Rajaratnam’s crimes to the accounting fraud committed by Mr. Ebbers of WorldCom and the Ponzi scheme run by Bernard L. Madoff. Those crimes “ruined the lives and livelihoods of scores of victims,” while Mr. Rajaratnam’s insider trading offenses victimized no one, his lawyers said.
Insider trading does not cause “the kinds of measurable losses to identifiable victims that conventional fraud causes,” Mr. Rajaratnam’s lawyers wrote in a court filing.
The government has countered that insider trading is not a victimless crime. “Rajaratnam betrayed Galleon’s investors, its employees, the counterparties to its trades, and the capital markets system upon which he built his wealth and success,” federal prosecutors said. The government also urged Judge Holwell to impose a long sentence on Mr. Rajaratnam “to send a strong and clear message that the time for illegal insider trading to end is now.”
In July, Judge Holwell sentenced Danielle Chiesi, a co-conspirator of Mr. Rajaratnam, to two and a half years in prison, which was less than the minimum three-year sentence requested by the government. Yet Ms. Chiesi pleaded guilty, whereas Mr. Rajaratnam fought the government’s charges and took his case to trial, a possible negative factor at sentencing.
Stuart P. Slotnick, a lawyer at Buchanan Ingersoll & Rooney in New York, predicts that Judge Holwell will impose a prison term of 12 to 15 years, which, while less than the government’s request, would still be a record insider trading sentence. That sentence, Mr. Slotnick said, in part reflects attitudes since the financial crisis. “There is a ‘Wall Street is bad’ mentality that permeates the culture,” he said. “It’s now in the social ether that financial crimes of whatever kind cause widespread damage and hurt everybody.”
Recent related posts:
- What insider trading sentence for Raj Rajaratnam would avoid "unwarranted" disparity?
- Brother of Raj Rajaratnam asks friends to write letters to judge urging leniency
- Sentencing debate joined for Raj Rajaratnam in high-profile insider trading case
- Lawyers spar in briefing before Rajaratnam's sentencing for insider trading
"Retributive Justice and the Demands of Democratic Citizenship"
The title of this post is the title of this new paper by Professor Dan Markel, which is now available via SSRN. Here is the abstract:
This article reveals and responds to the democracy deficit in certain retributivist approaches to criminal law. Democracy deficits arise when we insufficiently recognize the moral authority of liberal democracies to create new moral obligations for us as individuals. Specifically, I will argue, in contrast to the claims of some leading criminal law theorists, that conduct can be legitimately and justly criminalized even if the conduct is not morally wrongful prior to or independent of law. In other words, once we understand the basis for our presumptive political obligations within liberal democracies, a more capacious approach to establishing criminal laws can be tolerated from a political retributivist perspective.
If I'm correct, then here are some of the implications: we are morally obligated (in a pro tanto way) to (1) conform our conduct, in our capacities as nonofficials, not only to “good” mala in se criminal laws but also many mala prohibita laws, laws that I call permissibly dumb but not illiberal; (2) to render, in our capacities as nonofficials, reasonable assistance to law enforcement of the previous categories of laws; and (3) to enforce, in our capacities as officials, these categories of laws. While the implications of this "democratic fidelity" argument are extensive, there is no moral obligation to surrender one’s judgment entirely. Indeed, officials and nonofficials have no moral obligation toward laws that are illiberal or what I call "spectacularly dumb," regardless of their valid legal status.
Like democratic criminalization choices, democratic sentencing laws must also be scrutinized. To that end, I sketch two moral frameworks that should work in conjunction with each other and with the threshold criminalization question when deciding whether to enforce, conform to, or assist enforcement efforts of criminal laws within liberal democracies.
"Slain officer's family calls for Troy Davis' execution"
The title of this post is the headline of this new piece from the Atlanta Journal-Constitution providing a report on today's clemency hearing for death row inmate Troy Davis. Here are some details:
The state Board of Pardons and Paroles has finished hearing testimony in the last-ditch clemency bid from Troy Anthony Davis, who is trying to be spared execution scheduled for Wednesday. The board could still issue its decision today.
Surviving relatives of slain Savannah Police Officer Mark Allen MacPhail, some teary-eyed, stood before cameras after the hearing ended and expressed confidence the board will allow Davis' execution to go forward. "What a travesty it would be if they don't uphold the death sentence," MacPhail's widow, Joan MacPhail-Harris, said. "Troy is not innocent," she said. As for claims that Davis was wrongly convicted, "It's been a lie."
MacPhail-Harris was flanked by her 23-year-old daughter, Madison MacPhail, and 22-year-old son, Mark MacPhail Jr. The officer's mother, Anneliese MacPhail, also expressed confidence the board will deny clemency to Davis. "It's time for justice today," MacPhail-Harris said. "My family needs justice. He was taken from us too soon, too early."
Madison MacPhail, unable to hold back tears, said Davis must be executed. "It is the correct form of justice," she said. "Troy Davis murdered my father, no questions asked."
Earlier in the day, Davis' legal team presented its case to the parole board. "We believe we have established substantial doubt in this case," Stephen Marsh, one of Davis' lawyers, said after a three-hour hearing. The execution should not be allowed to go forward, he said.
The five-member board began its hearing at 9 a.m. and finished hearing testimony after 5 p.m. The board has not said whether it will issue its decision today as to whether Davis will be granted clemency or whether his execution should be carried out as scheduled on Wednesday at 7 p.m....
Davis, who has always maintained his innocence, is scheduled to be executed by lethal injection Wednesday at the state prison in Jackson. Davis declined to request a special meal before the execution, prison officials say.
Davis’ case generated worldwide attention after a number of witnesses recanted or backed away from trial testimony that implicated Davis in the shooting. Some people later pointed to another man at the murder scene as the killer. But one court after another has rejected Davis' claims. His legal appeals appear to be exhausted, so the parole board could be his last chance to avoid execution.
A host of dignitaries have asked the parole board to grant Davis clemency. These include former President Jimmy Carter, former FBI Director William Sessions, former Georgia congressman Bob Barr and former Georgia Supreme Court Chief Justice Norman Fletcher.
Among witnesses to testify today before the parole board was Brenda Forrest, a juror who voted to sentence Davis to death at the 1991 trial. She now says she has doubt about her verdict and is asking the board to grant clemency. Two other jurors who voted to sentence Davis to death have signed affidavits asking the board to spare Davis from execution....
This marks the second time the parole board will decide whether to grant Davis clemency. In September 2008, the board rejected his bid, but the five-member board has three new members since that decision. The parole board has the sole authority in Georgia to grant or deny clemency to a condemned inmate. If the board decides to commute Davis' death sentence, it could sentence him to life in prison with the possibility of parole or life without parole.
A few older and recent posts on the Davis case:
- SCOTUS orders innocence hearing in Troy Davis case (Aug 2009)
- A year after SCOTUS intervenes, Troy Davis innocence hearing about to start (June 2010)
- "Innocence claim rejected: Troy Davis loses challenge" (Aug 2010)
- Will third time clemency hearing be the charm for Troy Davis on eve of his latest execution date?
- The latest news (and helpful background) on the Troy Davis case
Still more great news and data on the latest crime rates in the United States
The chart reprinted here comes from this FBI webpage that reports on the latest great news on crime rates. This related press release provides more of the data and context for these heart-warming numbers, along with lots of other data of note for criminal justice policy wonks:
According to the figures released today by the FBI, the estimated number of violent crimes in 2010 declined for the fourth consecutive year. Property crimes also decreased, marking this the eighth straight year that the collective estimates for these offenses declined.
The 2010 statistics show that the estimated volumes of violent and property crimes declined 6.0 percent and 2.7 percent, respectively, when compared with the 2009 estimates. The violent crime rate for the year was 403.6 offenses per 100,000 inhabitants (a 6.5 percent decrease from the 2009 rate), and the property crime rate was 2,941.9 offenses per 100,000 persons (a 3.3 percent decrease from the 2009 figure).
These and additional data are presented in the 2010 edition of the FBI’s annual report Crime in the United States [available here]. This publication is a statistical compilation of offense and arrest data reported by law enforcement agencies voluntarily participating in the FBI’s Uniform Crime Reporting (UCR) program....
In 2010, there were 18,108 city, county, university and college, state, tribal, and federal agencies that participated in the UCR program. A summary of the statistics reported by these agencies, which are included in Crime in the United States, 2010, follows:
■ Nationwide in 2010, there were an estimated 1,246,248 violent crimes.
■ Each of the four violent crime offenses decreased when compared with the 2009 estimates. Robbery had the largest decrease at 10.0 percent, followed by forcible rape with a 5.0 percent decline, murder and nonnegligent manslaughter with a 4.2 percent decrease, and aggravated assault with a 4.1 percent decline.
■ Nationwide in 2010, there were an estimated 9,082,887 property crimes.
■ Each of the property crime offenses also decreased in 2010 when compared with the 2009 estimates. The largest decline, 7.4 percent, was for motor vehicle thefts. The estimated number of burglaries decreased 2.0 percent, and the estimated number of larceny-thefts declined 2.4 percent.
■ Collectively, victims of property crimes (excluding arson) lost an estimated $15.7 billion in 2010.
■ The FBI estimated that in 2010, agencies nationwide made about 13.1 million arrests, excluding traffic violations.
■ In 2010, there were 14,744 law enforcement agencies that reported their staffing levels to the FBI. These agencies reported that as of October 31, 2010, they collectively employed 705,009 sworn officers and 308,599 civilians, a rate of 3.5 employees for each 1,000 inhabitants.
Some recent related posts:
- Remarkable drop in US violent crimes rates in 2010 according to latest BJS data
- Despite death penalty's practical demise and a prisoner release order, California crime hit record low in 2010
- "Punishment Politics: Gubernatorial Rhetoric, Political Conflict, and the Instrumental Explanation of Mass Incarceration in the American States"
"Judge sends therapist to prison for 35 years in massive Medicare-fraud case"
The title of this post is the headline of this new piece in the Miami Herald reporting on the "other shoe" dropping in a record-setting white-collar federal sentencing. Here are the basics from the article:
A federal judge Monday issued another astonishing prison sentence in the nation’s biggest mental-health fraud case, sending a Miami therapist to prison for 35 years. Marianella Valera, 40, a naturalized U.S. citizen from Peru who ran Miami-based American Therapeutic Corp. with her boyfriend, received less time in prison than he did.
On Friday, Lawrence Duran, 49, a New York transplant, got 50 years as the mastermind of the massive Medicare-fraud scheme — accounting for more than $200 million in bogus billing to the taxpayer-funded program. [Previous blog coverage here.]
But in both instances, U.S. District Judge James Lawrence King gave out the longest prison sentences ever for a Medicare-fraud offender. Previously, the longest sentence was a 30-year term imposed in 2008 on a Miami physician convicted in an HIV-therapy scam. This year, Duran and Valera pleaded guilty to a variety of conspiracy, fraud and money-laundering charges after they failed to reach plea deals with the Justice Department.
Prosecutors had pushed for a 40-year sentencing, but Valera’s lawyer, Arthur Tifford, sought considerably less time. Justice Department lawyer Jennifer Saulino argued that Valera abused her “position of trust” as the licensed owner of American Therapeutic. Duran had registered the company in her name to disguise his past ownership of a similar mental-health company, which had carried a $2 million debt....
The couple’s company, with clinics stretching from Miami to Fort Lauderdale to Orlando, collected $87 million in Medicare payments after submitting $205 million in false claims. The couple paid kickbacks to recruiters to supply patients suffering from dementia, Alzheimer’s and addictions, but they could not have benefited from the company’s purported group therapy sessions....
A total of 34 people, including American Therapeutic employees, doctors, therapists, nurses and recruiters, have been charged in the ongoing fraud case, which is being investigated by the FBI and Health and Human Services-Office of Inspector General. This year, about a dozen defendants have pleaded guilty.
The underlying offense facts certainly suggest that American Therapeutic was involved in record-sized frauds. Still given that the loss amounts involved here are far below the losses in cases of mass financial fraud in which defendants have often received sentences of 25 years or far less — I am thinking of some of the usual suspects here (e.g., Bernie Ebbers, Jeff Skilling, Marc Dreier) — I find both notable and remarkable that these defendants (who pleaded guilty, unlike say Ebbers and Skilling) are now to due to spend decades more in prison for their offenses.
Especially in light of the Eleventh Circuit's apparent willingness to sometimes find sentences substantively unreasonable as too short (as evidenced by today's Padilla ruling), I wonder if there might still be some hope for these defendants if they appeal their sentences as unreasonably long.
Recent related post:
"Electronic Monitoring Reduces Recidivism"
The title of this post is the title of this helpful new "In Short" publication from the National Institute of Justice that provides a summary of a notable new lengthy report on electronic monitoring and offenders’ risk of failing to meet the terms of their probation. Here is the start of the NIJ summary:
A large NIJ-funded study of Florida offenders placed on electronic monitoring found that monitoring significantly reduces the likelihood of failure under community supervision. The decline in the risk of failure is about 31 percent compared with offenders placed on other forms of community supervision.
Researchers from Florida State University’s Center for Criminology and Public Policy Research compared the experiences of more than 5,000 medium-and high-risk offenders who were monitored electronically to more than 266,000 offenders not placed on monitoring over a six-year period. The researchers worked with the Florida Department of Corrections to secure approval, obtain administrative data, and gain help in contacting local probation offices for interviews. The researchers interviewed offenders, probation officers, supervisors and administrators to uncover insights into the electronic monitoring process.
I think it is fantastic that NIJ is producing this brief research reviews, as I am much more likely to read and understand this NIJ publication, which runs 4 pages, instead of the underlying research study, which runs over 200 pages. It is always nice to see my federal tax dollars going to such a good end, especially when it also provides me with helpful blog fodder.
Split Eleventh Circuit deems Jose Padilla's 17-year terrorism sentence substantively unreasonable
Thanks to David Oscar Markus and this post at his Southern District of Florida blog, I have seen that an Eleventh Circuit panel today has handed down this very-long opinion in a very high-profile terrorism case. Here is how David summarizes the basic holding:
Judge Dubina writes the majority, which Judge Pryor joins, affirming the conviction and reversing Jose Padilla's 17 year sentence as too low. Judge Barkett dissents on both the conviction and sentencing holdings.... This case seems destined for Supreme Court review.
And here from the start of the opinion are the issues in play as set forth at the start of the majority's opinion:
A federal grand jury in the Southern District of Florida indicted Appellants Adham Hassoun, Kifah Jayyousi, and Jose Padilla (referred to individually by name or collectively as “defendants”), along with Mohammed Youssef and Kassem Daher, for offenses relating to their support for Islamist violence overseas....
Trial commenced on April 16, 2007, and four months later, the jury returned a special verdict convicting defendants on all counts.... On Count 1, the district court sentenced Padilla to 208 months, Hassoun to 188 months, and Jayyousi to 152 months’ imprisonment. On Count 2, the district court sentenced each defendant to the maximum 60 months’ imprisonment. On Count 3, the district court sentenced Padilla and Hassoun to the maximum of 180 months’ imprisonment and sentenced Jayyousi to the maximum of 120 months’ imprisonment. The district court made all sentences run concurrently and imposed a 20-year period of supervised release for each defendant. The defendants appeal, and the government cross-appeals Padilla’s sentence.
Among the interesting aspects of the majority's sentencing ruling in this case is its conclusion that Padilla's sentence was procedurally sound but substantively unreasonable. Here are a few (of many) interesting passages from the majority's sentencing discussion (with some cites removed):
The district court did not commit procedural error. Neither party contends that the district court failed to properly calculate the Guidelines range or treated the Guidelines as mandatory.... Furthermore, the district court adequately explained that it gave Padilla a sentence that was below the Guidelines range for several reasons: the conditions of Padilla’s prior confinement, his allegedly low risk of recidivism due to his age at the time of his anticipated release, the comparable sentences imposed on other terrorists, and the fact that Padilla did not personally injure anyone or target Americans in his conspiracy.
However, Padilla’s sentence is substantively unreasonable because it does not adequately reflect his criminal history, does not adequately account for his risk of recidivism, was based partly on an impermissible comparison to sentences imposed in other terrorism cases, and was based in part on inappropriate factors. First, the district court acknowledged that Padilla had a criminal history but then unreasonably discounted this criminal history when it imposed a sentence....
Second, Padilla’s sentence unreasonably fails “to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). The district court explained that given Padilla’s age when he is eligible to leave the criminal system, he will unlikely engage in new criminal conduct. The government argues to the contrary that “the risk of recidivism upon release is very real. That risk is greater because Padilla has literally learned to kill like a terrorist.” We agree that the district court failed to consider the nature of Padilla’s crimes and his terrorism training. Although recidivism ordinarily decreases with age, we have rejected this reasoning as a basis for a sentencing departure for certain classes of criminals, namely sex offenders. See United States v. Irey, 612 F.3d 1160, 1213–14 (11th Cir. 2010) (en banc), cert. denied, 131 S. Ct. 1813 (2011). We also reject this reasoning here....
Third, in considering “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” 18 U.S.C. § 3553(a)(6), the district court unreasonably failed to consider the significant distinctions between Padilla’s circumstances and the sentences of other offenders the district court referenced at the sentencing hearing.... On remand, we admonish the district court to avoid imposition of a sentence inconsistent with those of similarly situated defendants. It should not draw comparisons to cases involving defendants who were convicted of less serious offenses, pleaded guilty, or who lacked extensive criminal histories, nor should it draw comparisons to cases where the government sought the imposition of the death penalty.
Judge Barkett's discussion of sentence issues is also interesting (and even longther than the majoity's discussion). Here is the concluding passage from her sentencing discussion (with cites removed):
Much of what the majority takes issue with concerns the trial judge’s discretion in weighing the § 3553(a) factors, but the record simply cannot support the conclusion that Padilla’s sentence involves an abuse of such discretion. Precedent from the Supreme Court and this Circuit recognize that trial judges may attach great weight to one factor over others, and remember that each convicted person is an individual and every case is a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue. The trial judge followed these principles such that her conclusion to sentence Padilla below the Guidelines is entitled to due deference, even by those who “might reasonably have concluded that a different sentence was appropriate.
UPDATE: For a press account of this ruling, here is a Reuters piece headlined "Court says Padilla prison sentence too lenient."
The latest news (and helpful background) on the Troy Davis case
This lengthy Atlanta Journal-Constitution article, headlined Troy Davis’ life in board’s hands; World watches as group prepares to deliberate Wednesday execution," provides the latest news on what is the most-discussed and most-reviewed death penalty case in recent memory. Here is how the lengthy piece starts:
The condemned in Georgia always have a long and tortuous journey to the execution chamber. But the case of Troy Anthony Davis, whose execution is set for Wednesday, has been perhaps the most extraordinary and controversial legal odyssey in the state’s history.
It also has generated the most worldwide attention of any Georgia case. On Thursday, Davis’ supporters gave the state Board of Pardons and Paroles the names of 663,000 people asking Davis be spared execution. Advocates are using social media to rally support and organize protests around the world.
Davis’ case has taken one unexpected turn after another since he was sentenced to death 20 years ago for the murder of Savannah Police Officer Mark Allen MacPhail. On two occasions, the district attorney who put Davis on death row issued final statements believing nothing stood in the way of Davis’ execution, only to see the case reconsidered. On Monday, the parole board is scheduled to meet once again to determine whether Davis should live or die.
Even though Davis, 42, was condemned to die for killing a cop and prosecutors steadfastly stand behind his conviction, his innocence claims have attracted a host of dignitaries. Among them, former President Jimmy Carter, Pope Benedict XVI, former Georgia Supreme Court Chief Justice Norman Fletcher and former FBI Director William Sessions say Davis should be granted clemency.
“This case is extraordinary because there have been substantial questions of his innocence for almost a decade,” said death-penalty lawyer Stephen Bright, a professor at Yale Law School. “It has attracted attention from all around the world, and the extraordinary number of people supporting him — and the prominence of some of them — is unprecedented.”
This Wednesday marks the fourth time the state has set a date for Davis to be put to death by lethal injection. In July 2007, the state parole board granted Davis a stay after he’d said final goodbyes to visitors. A year later, the U.S. Supreme Court stepped in less than two hours before he was to be placed on the gurney. Seven months after that, the federal appeals court halted another planned execution, leading to an almost-unprecedented U.S. Supreme Court order that granted Davis a new hearing that ultimately proved unsuccessful.
Anneliese MacPhail, the mother of the slain officer, said she is cautiously optimistic the execution will be carried out this week. “I want to get it over with,” she said. “I want to have some peace.” After Davis’ new execution date was set, it appeared there was nowhere for him to turn because his appeals are exhausted. But the parole board quickly agreed to again consider Davis’ request for clemency. It set a hearing for Monday and did not say when it will issue its decision.
The parole board denied clemency to Davis three years ago, but the five-member board has three new members. The board is expected to hear from witnesses who did not testify in its prior hearings. This includes a woman who has signed an affidavit saying she heard Sylvester “Redd” Coles, who was at the crime scene, say he was the real killer. Davis’ lawyers are also expected to submit sworn statements from at least three jurors who sentenced Davis to death, but who are now asking that Davis be spared execution.
The AJC article provides a lot more background on Davis's conviction and the controversies surrounding it. In addition, these prior posts from this blog on the Davis case (for which I have added the dates of the post) highlight just some of the more recent legal wranglings:
- "Will Georgia Kill an Innocent Man?" (July 2007)
- Georgia appears poised to execute Troy Davis despite innocence concerns (Sept 2008)
- Supreme Court stays planned Georgia execution of Troy Davis (Sept 2008)
- Troy Davis gets no relief on innocence claims in Eleventh Circuit (April 2009)
- SCOTUS orders innocence hearing in Troy Davis case (Aug 2009)
- A year after SCOTUS intervenes, Troy Davis innocence hearing about to start (June 2010)
- "Innocence claim rejected: Troy Davis loses challenge" (Aug 2010)
- Eleventh Circuit punts Troy Davis case up to SCOTUS (Nov. 2010)
- Georgia death row inmate Troy Davis now gets no review or relief from SCOTUS (March 2011)
September 18, 2011
New study says life with parole in California really means, on average, about 20 years
This local piece from California reports on an interesting new study of what life sentences really mean in the state. Here are snippets from the piece, which provides an effective summary of the new study:
Inmates serving life with the possibility of parole in California, mostly convicted murderers, spend an average of 20 years in prison and almost never commit new crimes after being released, a new study concludes.
The report by the Stanford Criminal Justice Center at the university's law school, issued Thursday, also found that the state Board of Parole Hearings has become increasingly willing to set release dates for "lifers" in the last few years. But those dates have often been vetoed by the governor, under a voter-approved law that has parallels in only three other states, the report said.
Release rates are likely to increase, however, under Gov. Jerry Brown. Through April, Brown had overruled fewer than 20 percent of the parole dates approved by the board, which is composed mostly of former law enforcement officers and prison officials. The comparable veto rates were 70 percent for Gov. Arnold Schwarzenegger and 98 percent for Gov. Gray Davis.
The study also found that prisoners who are denied parole must wait an average of five years for their next hearing, up from two years in 2007, mostly because of a new, voter-approved victims' rights law. The board is less likely to approve release at an inmate's first hearing than at future hearings, the study found, and is less than half as likely to grant parole when a victim's relative attends the hearing.
The report also cited a recent study of 860 convicted murderers paroled in California since 1995. Only five had been sentenced for new felonies since then, none for crimes carrying life sentences, the study said.
The parole board, appointed by the governor, has no authority over most prisoners, who serve fixed terms based on their crimes. But it decides when lifers - those convicted of murder, attempted murder and a few other crimes, such as aggravated cases of kidnapping and rape - are suitable for release.
Lifers constitute one-fifth of the state's prisoners, the highest percentage of any state and an increase from 8 percent of the inmates in 1990, the study said. In addition, California has 4,000 prisoners serving life without the possibility of parole and more than 700 sentenced to death, all for specific categories of murder, such as murder of a police officer, multiple murders and murder during a rape, robbery or burglary....
The parole board now approves release in 18 percent of the hearings, three times the approval rate in 2007, the study said. It said one reason was a 2008 state Supreme Court ruling that required parole decisions to be based on the risk to public safety and not, in most cases, solely on the facts of the crime.
The study issued by the Stanford Criminal Justice Center is titled "Life in Limbo: An Examination of Parole Release for Prisoners Serving Life Sentences with the Possibility of Parole in California." The full 28-page study is available at this link.
Bureaucrats initially deny Pennsylvania prisoner access to state constitution
This local story, headlined "Pennsylvania's Department of State denies inmate's request for a copy of the state constitution," provides an amusing tale of state bureaucracy at its finest:
The state constitution ... should be readily available to anyone who wants it, right? That’s probably what Michael Baynard thought when he requested a copy of it from the Pennsylvania Department of State through the state’s Right to Know Law.
Instead, the 37-year-old prison inmate was told he couldn’t have it. Baynard, who is serving time at the State Correctional Institution at Coal Township for sex offenses, appealed to the state’s Office of Open Records. On Sept. 7, the Open Records Office ordered the State Department to send him a copy of the constitution.
When that appeal arrived at the Open Records Office, its executive director, Terry Mutchler, said she thought it was some kind of high jinks. Then she realized it was for real. “It almost leaves me speechless,” Mutchler said. “It encapsulates some of the derision that folks have for us in government because a copy of the constitution is clearly a public record.”
The Department of State argued that the constitution doesn’t qualify as a record that falls under its purview since it is not a record that the department made as a result of an action it took, spokesman Ron Ruman said. In defending its decision to the Open Records Office, the department also claimed it assigns act numbers to records and the request for the constitution failed to cite an act number and year.
But there is only one state constitution. Mutchler said she couldn’t imagine a state agency not providing it.... The State Department has decided not to appeal the Open Records Office decision, although the department’s staff counsel stands by the initial denial as correct and appropriate, Ruman said.