« October 2, 2011 - October 8, 2011 | Main | October 16, 2011 - October 22, 2011 »

October 15, 2011

"Florida firing squads? What has death penalty supporters all riled up?"

The title of this post is the headline of this new article in the Christian Science Monitor, which gets started this way:

A majority of Americans seem to agree: They want the death penalty. And in a majority of states, the death penalty is legal.  So why are supporters of the death penalty engaging in so much heated rhetoric when, by all appearances, they seem to have both public opinion and the law on their side?

A case in point: Republican presidential contender Rick Perry received booming applause from a debate audience last month after he said he “never struggled” with any of the 234 executions he presided over during his watch as Texas governor.

And now in Florida, a state that already has capital punishment on the books and carried out an execution as recently as late September, a Republican lawmaker is proposing a bill to do away with lethal injection and only allow execution by electrocution or firing squad.

So what is happening here?  Some analysts suggest that those who think capital punishment is the ultimate crime deterrent are becoming increasingly insecure in the face of a resolute opposition to the death penalty, and that is moving them to find louder and more visible ways of making their position known.

In Florida, state Rep. Brad Drake (R) said his legislation is in response to the execution of Manuel Valle on Sept. 29, which was delayed by legal battles over the mixture of lethal drugs used in the procedure.

In a statement, Representative Drake said he is “tired of being humane to inhumane people,” and believes harsher punishment is justified to achieve justice for the most heinous crimes in his state.  “Let’s end the debate.  We still have Old Sparky,” he said. “And if that doesn’t suit the criminal, then we will provide them with a .45 caliber lead cocktail instead.”

Some recent and older related posts: 

October 15, 2011 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (5) | TrackBack

Sex offender registers Occupy protest camp as home address

This local article from Oregon, which is headlined "Sex offender claims Occupy Portland as address," reports on an interesting new connection between recent public protests and crime and punishment. Here are excerpts:

Portland police report that one of the residents of the Occupy Portland camp is a sex offender from California. A police lieutenant says the man registered at the Portland Police headquarters, and gave his local address as ‘Lownsdale Square, Occupy Portland.'

Protesters whom FOX 12 spoke with remained unconcerned that a sex offender may be in their midst....

"He is in Portland from California, and he listed his address as ‘ Lownsdale Square, Occupy Portland,'" Said Portland Police Lieutenant Robert King. King says the man registered with detectives as Raymond Allen Curtis, 32, and is complying with the law by checking in with Portland Police.

"It doesn't concern me, ‘cause I lived in Southeast Portland where there's one in every corner and every house anyways," Julianne Dunn says. "You never know when you could be attacked wherever you're at. So you have to be aware of your surroundings."

Surrounded by City Hall, the Justice Center and the Multnomah County courthouse, campers are preparing for the second weekend of Occupy Portland.

October 15, 2011 in Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (24) | TrackBack

"Killer's plea deal outrages family" ... because of lack of DP in NJ?

The title of this post is part of the headline of this local article out of New Jersey, along with my follow-up question and concern.  First, here are excerpts from the article:

A 25-year-old Camden gang leader who sanctioned the grisly killings of a Burlington County couple last year was sentenced to 30 years in prison for the crime Friday, despite outrage from a victim’s family.

Muriah Huff’s uncle, grandmother and cousins asked Superior Court Judge Irvin Snyder to reject the plea deal for Kuasheim “Presto” Powell offered by the Camden County Prosecutor’s Office in favor of a jury trial and potential life sentence. “Justice was not served. The system is broken,” said Earl Huff, uncle of 18-year-old Muriah.

In accordance with the deal, Snyder sentenced Powell to a pair of 30-year sentences for pleading guilty to the murders of Huff and Michael Hawkins, as well as two 20-year sentences for his guilty plea in the shooting of two Pennsauken brothers in a separate incident. Powell will serve the sentences concurrently, meaning he could be released when he is in his 50s. He must serve a minimum of 30 years, including time served of 19 months.

Camden County Assistant Prosecutor Mary Alison Albright said by agreeing to a deal, her office ensured Powell would spend time in prison rather than taking a chance he would be found not guilty. “With a guilty plea, we control the outcome,” Albright said. As part of the plea, Powell is committed to testifying against any co-defendants who go to trial.

Authorities said Huff, of Cinnaminson, and her boyfriend, 23-year-old Michael Hawkins, of Mount Holly, were tortured over a period of hours by young Bloods members in a row home on the 500 block of Berkley Street in Camden.

Powell, the admitted leader, ultimately ordered the pair be killed. He shot Hawkins six times in the head. Huff was beaten with a chair, choked with a rope, stabbed and suffocated. Authorities said Hawkins was killed as part of a gang dispute. Huff was killed simply to cover up Hawkins’ death....

[T]he family’s frustration boiled over Friday at the thought that Powell could walk free some day. “He shouldn’t have the opportunity to get out and enjoy a life after prison,” Huff’s cousin, Natasha Huff, told Snyder during the hearing.

“For him to be able to sit here and play let’s make a deal … something is wrong with the system,” Earl Huff added later. Shortly before handing down the sentence Snyder said, “The family is right. Thirty years doesn’t cut it.”...

Powell was the oldest of the gang members charged, and as such, admitted during his guilty plea the others looked to him during the killings. While he laughed and smiled while talking with his attorney before the hearing, Powell later told Snyder he was sorry for the crimes and that jail has changed him.

Powell said he has no explanation for his past actions, which he said he has replayed in his mind during his time in prison. When Powell pleaded guilty in August to his role in the Feb. 22 killings of Huff and Hawkins, he also admitted shooting two brothers in Pennsauken the day before. “If I could go back in time, I would change things,” he said.

Snyder dismissed Powell’s apology as continued manipulation. “I don’t believe anything you are saying about how you feel,” he said before handing down the sentence.

As suggested in the title of this post, I fear that this (seemingly too) lenient plea deal for a multiple murderer is a direct result of New Jersey's decision to abolish the death penalty in the state.  In states with the death penalty, plea deals for these kinds of horrific crimes will often involve prosecutors taking death off the table in exchange for a plea that carries a life with parole or an LWOP sentence.  But in NJ now, LWOP is the longest possible sentence that can be threatened even after a full trial, so state prosecutors have to offer something less to get even a mass murderer to be willing to give up his right to roll the dice at trial.

Regular readers know that I consider the impact on plea practices to be a unique and potentially potent argument in favor of the death penalty, though one not ever discussed sufficiently.  This New Jersey case serves as another prime example of how the abolition of the death penalty may permit a distinct kind of sentencing injustice.

October 15, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

October 14, 2011

Long Island's "mini-Madoff" gets 25-year prison term

As detailed in this Reuters report, a "Long Island man was sentenced to 25 years in prison Friday after admitting to stealing more than $195 million from thousands of investors in the course of a five-year, $400-million Ponzi scheme."  Here is more:

Nicholas Cosmo, 40, was ordered by U.S. District Judge Denis Hurley to repay $179 million to more than 4,000 investors who thought they were investing in short-term commercial bridge loans through Cosmo's two Long Island-based companies, Agape World Inc and Agape Merchant Advance.

Instead, prosecutors said, Cosmo used new investments to pay returns to investors, in a classic Ponzi structure.  Media accounts dubbed Cosmo a "mini-Madoff" following his arrest in January 2009, because of the similarity of his scheme to that of New York investment manager Bernard Madoff's multi-billion-dollar swindle, which had been discovered only weeks earlier.

Cosmo pleaded guilty in October 2010 to federal mail and wire fraud charges.  Under federal sentencing guidelines he faced up to 40 years in prison.  In contrast to many of Madoff's victims, who were well-off Manhattan residents, charities and companies, prosecutors said, Cosmo and Agape preyed on working-class families, U.S. soldiers and others who wound up losing all or part of their life savings....

This will be the second fraud-related prison term for Cosmo.  In 1999, he was sentenced to serve 21 months after admitting to having misled investors, commingled funds and forged documents while working at a stock brokerage firm.  He was stripped of his broker's license by the National Association of Securities Dealers in 2000 and forbidden from associating with other registered securities dealers.

October 14, 2011 in Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

Feds now talking about prosecuting media running medical marijuana ads!?!

This new AP story, which is headlined "US attorney considering going after newspaper, other media running ads for pot dispensaries," highlights how the federal government's latest push in the "war on pot" is now going past serious federalism concerns and starting to implicate serious First Amendment issues.  Here are the basics:

The chief federal prosecutor in San Diego is contemplating expanding a federal crackdown on the medical marijuana industry by going after newspapers, radio stations and other outlets that run advertisements for California’s pot dispensaries, her office told The Associated Press on Thursday.

U.S. Attorney Laura Duffy made the comments initially to California Watch, a project of the nonprofit Center for Investigative Journalism. They come a week after she and three other U.S. attorneys in California vowed to close medical marijuana businesses they deem questionable and single out people who rent buildings or land to the industry.

“I’m not just seeing print advertising,” Duffy told California Watch. “I’m actually hearing radio and seeing TV advertising. It’s gone mainstream. Not only is it inappropriate — one has to wonder what kind of message we’re sending to our children — it’s against the law.”

Duffy wasn’t available Thursday to speak to the AP but her office confirmed the comments published by California Watch. The federal government will determine whether the media crackdown is necessary as the results of last week’s actions unfold, Duffy’s spokeswoman Debra Hartman said. She cited a federal law that prohibits people from placing ads that have the purpose of buying or selling a controlled substance.

“If I own a newspaper ... or I own a TV station, and I’m going to take in your money to place these ads, I’m the person who is placing these ads,” Duffy said, according to California Watch.  “I am willing to read (the law) expansively and if a court wants to more narrowly define it, that would be up to the court.”...

Duffy’s comments are creating a buzz in the media industry, California Newspaper Publishers Association executive director Tom Newton said. As it stands now, advertisers are responsible for the contents of their ads in newspapers, he said. “If they are false, misleading or fall below the line in other legal ways, advertisers are responsible,” he said. “Newspapers don’t have the staff or time to vet every claim in every ad that they run.”

Duffy, whose district encompasses San Diego and Imperial counties, and the U.S. attorneys in three other California districts sent written warnings last week to landlords leasing property to dozens of warehouses and agricultural parcels where marijuana is being grown and for retail spaces where it is sold, telling them to evict their tenants or face criminal charges or seizure of their assets.

The attorneys say the state’s law legalizing medical marijuana was intended to allow it to be supplied to seriously ill people on a nonprofit basis.  But the law has been abused by people who are just looking to get rich, they say.  The action comes only months after the Obama administration tightened its stance on the issue.

Media owners were waiting to see what happens before reacting publicly, Newton said. “I think everybody needs to take a breath here and really think about the implications of this issue and whether or not this is a reasonable effort and use of the limited resources of the U.S. attorney’s office,” Newton said.

Wow!  I have a very hard time not being a bit stunned by U.S. Attorney Laura Duffy's comments, which seem to have planned out and have elements of fascist and anti-capitalist instincts.  I hope not merely proponents of medical marijuana and states' rights will be troubled by this, but that everyone who believes in basic American constitutional principles will be at least a bit concerned by what USA Duffy is saying here.

First, rather than make a fair assessment of whether Congress authorized these kinds of prosecutions and/or whether the Constitution would permit them — an assessment she is duty-bound and has sworn to do — USA Duffy here proudly asserts that she will actively try to expand the federal criminal law to scare and potentially imprison those who in the private media who provide a conduit for local and state businesses to advertise their services.  And rather than understand that people "just looking to get rich" is at the heart of our capitalist free-market commitment to allowing private people to provide desired products to willing consumers, USA Duffy here proudly claims that she knows better than state officials in California who should not be allowed to be in the medical marijuana business and that federal prosecutors should be able to punish media outlets for not sharing her particular views of good versus bad businesses in the state.

Second, it is not as if there are no other serious crime threats in California to occupy the activities of the US Attorneys out there.  As everyone knows, just in the last few weeks, California has begun to implement its prison reduction plans by returning large numbers of state prisoners to their local communities.  Might it not make a bit more sense for the feds in California to invest time and energy helping state and local officials figure out how best to assess who now most threatens the community?  I doubt that ads in the newspaper and the radio are the most serious threat to kids in San Diego.  And, unless the US Attorney's office under USA Duffy has fully and permanently fixed all the problems of illegal immigration on California's southern border, I do not quite understand why they think some medical marijuana ads are more harmful to the community than illegal immigrants.

I could go on and on, but I trust I have made my views here clear that I think this federal prosecutorial threat to the local media risks sending a lot more bad messages to American children than a few pot dispensary ads.  That all said, I hope I have not already shouted down any readers who might be supporting of U.S. Attorney Laura Duffy's comments.  I genuinely wish to hear from readers who may view the threatened federal prosecution of local media running pot dispensaries advertisements as not only constitutionally sound, but also a good modern use of federal resources in Southern California.

Some recent and older related posts:

October 14, 2011 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

"Second Chances After Prison"

The title of this post is the headline of this new New York Times editorial, which includes these important points:

With state prison costs driven mainly by recidivism, the federal government must do all it can to support programs like the Second Chance Act, which guides newly released prisoners to drug treatment, mental health care, housing and jobs to keep them from going right back to jail.  The House, which supports continued funding, must hold fast against a Senate appropriations bill that would zero out this important program.

Of about 700,000 people released from prisons this year, more than two-thirds will be re-arrested and more than half returned to prison within three years. Even modest reductions in recidivism could yield huge savings.  For example, a study released earlier this year by the Pew Charitable Trusts estimated that Texas could save $33.6 million, New York $42 million and California $233 million in the first year alone if they cut recidivism by even 10 percent. The Second Chance Act, signed into law by George W. Bush in 2008, supports re-entry services for newly released prisoners, who typically land on the street without money, skills or a place to live.  The program was initially authorized at $165 million. But Congress funded it at only $25 million for fiscal 2009, $100 million for 2010 and $83 million this year.  Even so, a recent analysis by the Council of State Governments Justice Center shows promising re-entry projects financed by this law springing up all over the country....

Representative Frank Wolf, Republican of Virginia, has promised to fight in the conference committee for the House bill that would invest $70 million into the Second Chance Act. The Senate, by contrast, has set aside no money for the program while earmarking more than $300 million in new aid for federal prisons.  The Senate has its priorities backward.

The phrase "penny-wise and pound-foolish" comes to mind a lot when I think about how Congress deals with a variety of modern crime and punishment issues.  And, sadly, many recent sentencing and punishment choices by Congress and the Obama Administration are not even penny-wise.

October 14, 2011 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (18) | TrackBack

Split First Circuit says state can refuse to turn over murderer to feds for capital prosecution

As detailed in this local report, the First Circuit "ruled Thursday that Rhode Island does not have to surrender accused murderer Jason Wayne Pleau to federal prosecutors who asked to have him tried in federal court where, if convicted, he potentially could have faced the death penalty." Here are the details:

In June, Governor Chafee refused the prosecutors' request for Pleau to face trial in U.S. District Court for allegedly plotting with a Massachusetts couple to rob a man as he tried to make a bank deposit.  Pleau is also accused of killing a gas station manager outside a Woonsocket bank.  Chafee said his refusal was based on what he said is Rhode Island law's rejection of the death penalty.

Lawyers for Pleau appealed a court order by U.S. District Judge William E. Smith in June that said the state had to surrender him to federal custody.  In August, the three-judge panel of the 1st U.S. Circuit Court of Appeals he granted Chafee's bid to become a full party in the appeal.

On Thursday, The appeals panel held in its opinion that the federal government is bound by the terms of a law that govern transfer of inmates between states.  In August, Chafee's chief counsel told the appeals court that prosecutors had chosen that route and must adhere to all its terms, including a provision that a governor has the authority to deny a request for custody.

The full First Circuit ruling in US v. Pleau, with both the majority and dissenting opinions, can be found at this link.  It will be interesting to see if the feds seek en banc review or even Supreme Court review of this interesting decision.

Related posts:

October 14, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

October 13, 2011

Notable reasons district judge gave Raj Rajaratnam a below-guideline sentence

This updated New York Times account of today's sentencing of insider-trader Raj Rajaratnam provides this interesting account of the reasons articulated by U.S. District Judge Richard J. Holwell for his sentencing decision:

At 11 years, the sentence lacks the symbolic heft of the range of 19 to 24 years that the government had sought under federal sentencing guidelines. At Thursday’s hearing, Reed Brodsky, a federal prosecutor, said Mr. Rajaratnam deserved an outsize penalty because his crimes were “brazen, pervasive and egregious” and “there is no one who is Mr. Rajaratnam’s equal in terms of the breadth and scope of his insider-trading crimes.”

In imposing his sentence, Judge Holwell cited a number of mitigating factors that he said caused him to hand down a term that was substantially lower than the nonbinding federal guidelines. He said Mr. Rajaratnam’s “good works figure into the equation,” citing his financial help for victims of the tsunami in Sri Lanka, the earthquakes in Pakistan and the Sept. 11 attacks.

Judge Holwell also disclosed that Mr. Rajaratnam had advanced diabetes that was leading to kidney failure, and said that prison “is a more intense experience for people with serious health conditions.”

“Some form of forbearance, however constrained by circumstance, is fundamental to our system of justice and appropriate here,” the judge said.

Meanwhile, this new CNBC commentary by John Carney is headlined "Raj's Sentence Is Too Long," and here is a taste:

Rajaratnam received the longest prison sentence ever for insider trading.  But unlike those convicted of any other kind of fraud, Rajaratnam’s sentence is not at all linked to the harm he inflicted on his victims.  The reason why Rajaratnam’s sentence isn’t linked to any victims is because no one has found any victims.  They just don’t exist....

You’d have a better case for the actual inflicting of harm if a company were intentionally concealing information so that insiders could trade on the information while outsiders traded on ignorance.  But no one alleges the companies Raj was convicted of trading were in cahoots with him. 

Eleven years for a crime without a victim. Does that seem like justice?

Some related recent posts:

UPDATE:  Writing this new New York Times piece, Peter Henning has a terrific account of the legal and prison realities facing Raj in the wake of his sentencing Thursday.

October 13, 2011 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Arkansas Supreme Court applies Confrontation Clause to jury sentencing proceeding

As detailed in this local press report, a "defendant who has pleaded guilty to a crime does not lose the right to confront witnesses during sentencing proceedings before a jury, the Arkansas Supreme Court said today in overturning a man’s life sentence for rape." Here are the basics of the ruling:

The jury was allowed to view a video of a state police investigator interviewing the victim.  On appeal, Vankirk, 31, argued that his right of confrontation guaranteed by the U.S. and state constitutions was violated when the trial judge admitted video testimony from a witness who was not present in the courtroom and could not be cross-examined....

In its unanimous opinion today, the Arkansas Supreme Court [explained that] cases [cited by the state] involved sentencing by a judge, not a jury, so they were significantly different from Vankirk’s case.

The court noted that in the case United States v. Mills, which did involve sentencing by a jury, a federal district judge in California ruled that a defendant had the right to confront witnesses during the sentencing phase of a capital murder trial.

Vankirk’s case did not involve the death penalty, but “what constitutional protections apply should not be based on the available punishment,” the state high court said.  “We are convinced that the right of confrontation, guaranteed by both the Sixth Amendment and Article 2, Section 10 (of the Arkansas Constitution), extends to appellant’s proceeding before a jury,” Justice Donald Corbin wrote in the opinion.

The court also said the error was not harmless because the video included testimony that the victim was younger at the time of the first rape than the state had alleged. “This comment alone, which was uncorroborated and went unchallenged because Vankirk was not allowed to question (the victim), was extremely prejudicial,” Corbin wrote in the opinion.

I am very thankful to reader who alerted me to the very interesting opinion in Van Kirk v. Arkansas, No. CR 11-182 (Ark. Oct. 13, 2011) (available here). Here is one of many notable passages from the opinion in Van Kirk:

The State ... focuses on the United States Supreme Court case of Williams v. New York, 337 U.S. 241 (1949), to support its conclusion that the right of confrontation does not apply in sentencing proceedings.  Williams, however, does not stand for that explicit proposition....  We find the State’s reliance on Williams to be unpersuasive.  First, Williams involved a challenge under the Due Process Clause, not the Confrontation Clause. And, second, it was decided more than fifteen years prior to the Pointer decision that made the Confrontation Clause applicable to the states.  Moreover, the issue as framed in Williams differs significantly from the one presented to us today in that Williams involved a judge and what information he could consider in sentencing; whereas, here, there was a jury impaneled to weigh evidence and impose punishment.

We believe that the federal district court’s decision in United States v. Mills, 446 F. Supp. 2d 1115 (C.D. Cal. 2006), where the court concluded that the constitutional right to confrontation applies to both phases of federal-capital sentencing to be more persuasive. We are cognizant of the fact that Mills is a death-penalty case but find the court’s analysis of the constitutional protections afforded during sentencing to be noteworthy nonetheless.  In reaching this conclusion, the court reviewed the historical approach by a number of courts in assessing what rights a defendant enjoys during sentencing and holding that the Confrontation Clause forbids the admission of testimonial hearsay during the death-penalty phase of a case.  Again, although Mills differs in that it is a death-penalty case, its rationale still applies to the facts of the case before us, as both Mills and the instant case involve sentencing by a jury.  As the Court of Appeals of North Carolina reasoned, the focus in determining what constitutional protections apply should not be based on the available punishment.  State v. Hurt, 702 S.E.2d 82 (N.C. Ct. App. 2010).

October 13, 2011 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Ohio newspaper asks "Why not put executions on hold?"

The Canton Repository has this notable new editorial headlined "Why not put executions on hold?".  Here is the text:

In his 10 months as governor, John Kasich has commuted two death row inmates’ sentences to life in prison without parole.  He has allowed four others to be executed. No one can doubt that he favors the death penalty but decides each request for clemency based on whether he believes justice will be served.

Which makes his office’s response puzzling when it comes to requests that he declare a moratorium on executions until a new committee can review how the death penalty is carried out in Ohio.

Twice that we know of this year — most recently this week — Kasich has been asked to institute a moratorium. Twice his spokesman has said only that the governor supports the death penalty.  It’s as if supporters of a moratorium and the governor’s office are talking past each other.  The answer doesn’t match up with the question.

Ohio Chief Justice Maureen O’Connor said recently she will appoint a 20-member committee of judges, attorneys, legislators and law professors to review state laws and examine how death penalty cases are handled across the state.  Earlier reviews by the American Bar Association and The Associated Press had found geographic and racial disparities in the frequency of death sentences being handed down and disparities in the quality of representation of defendants in death penalty cases.

If even Ohio’s top judge, who is a former county prosecutor, sees a need to review the procedures, wouldn’t the governor want to at least consider putting executions on hold pending the committee’s review?

October 13, 2011 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

"Rajaratnam Is Sentenced to 11 Years"

Somewhat surprisingly, I think, today's high-profile white-collar federal sentencing led to a sentence closer to what the defense sought than what prosecutors wanted.  The headline of this post comes from this New York Times account of today's sentencing:

The fallen hedge fund billionaire Raj Rajaratnam received on Thursday the longest-ever prison sentence for insider trading, a watershed moment in the government’s aggressive two-year campaign to root out the illegal exchange of confidential information on Wall Street.

Judge Richard J. Holwell sentenced Mr. Rajaratnam, the former head of the Galleon Group hedge fund, to 11 years in prison. A jury convicted him of securities fraud and conspiracy in May after a two-month trial....

Calling him “the modern face of illegal insider trading,” prosecutors accused Mr. Rajaratnam of using a corrupt network of well-placed tipsters – including former executives of Intel, I.B.M. and the consulting firm McKinsey & Company – to illicitly gain about $64 million.

The 11-year sentence was lower than the range of roughly 19 to 24 years requested by the government. Mr. Rajaratnam’s historic prison sentence continues a trend of ever-stiffer penalties against white-collar criminals. Legal experts say that the increased prison terms are in part a result of federal sentencing guidelines, passed in 1987, which link the length of a sentence to the dollar amount involved in the fraud....

Corporate wrongdoers have received record-long sentences in recent years. Bernard L. Madoff is serving 150 years for cheating investors in an epic Ponzi scheme. Lee B. Farkas, a former mortgage company executive, received 30 years for his role in a $2.9 billion bank-fraud scheme. Last month, Adley H. Abdulwahab, who was convicted of participating in a $100 million fraud scheme that preyed on retirees, was sentenced to 60 years in prison....

John C. Dowd, Mr. Rajaratnam’s lawyer, had asked the judge to impose a sentence closer to six to eight years, calling the government’s request “grotesquely severe.” In arguing for a lesser term, Mr. Dowd pointed out that a stiff penalty for Mr. Rajaratnam would be on par with the average sentences for violent crimes like kidnapping and sexual abuse.

Advocates of more lenient insider-trading sentences also say that the crime does not have any real identifiable victims, whereas other white-collar crimes such as Ponzi schemes or corporate accounting frauds destroy lives and livelihoods....

“One legacy of this case that Wall Street will be more careful about what they say on telephones than they used to be,” said David Siegal, a white-collar defense lawyer and former federal prosecutor at Haynes & Boone.

Mr. Rajaratnam’s lawyers are expected to focus their appeal on attacking the judge’s decision to admit the wiretapped calls as evidence. They will argue, among other things, that Congress has not authorized the use of wiretap surveillance for insider-trading cases. But most lawyers say that the odds of a reversal are low. “An appeals court will show great deference to the trial court judge on this issue,” Mr. Siegal said.

Mr. Rajaratnam must report within 60 days to the Bureau of Prisons, which will assign him to a correctional facility. Until then, he will be confined to his home, a duplex apartment on Sutton Place. With no parole in the federal prison system, he will serve out his entire sentence, though he can get a slight reduction for good behavior.

October 13, 2011 in Federal Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Any recommendations or predictions for today's Rajaratnam insider-trading sentencing?

One of the highest-profile white-collar cases in recent years finally gets to sentencing this morning, as detailed in this Bloomberg piece headlined "Rajaratnam to Be Sentenced Today."  Here are the basics:

Galleon Group LLC’s Raj Rajaratnam will be sentenced today for masterminding the biggest hedge-fund insider trading scheme in U.S. history, facing a federal judge who has broad discretion in setting his punishment.

U.S. District Judge Richard Holwell in Manhattan presided over the jury trial in which Rajaratnam was convicted of 14 counts of securities fraud and conspiracy.  He will consult federal sentencing guidelines and his own “gut feeling,” one legal expert said.  Depending on the result, Rajaratnam, 54, may spend much of the rest of his life in prison.

Holwell will consider additional factors including the sentences given to other defendants in the ring and the utility of “sending a message” to those who might be tempted to trade on illegal inside tips, according to Anthony Sabino, who teaches law at St. John’s University in New York.  “He is supposed to look at everything,” said Sabino, who predicted Rajaratnam will get almost 15 years. “It’s always a matter of discretion or gut feeling.”

Prosecutors called Rajaratnam a “serial insider trader” who illegally made $72 million by corrupting friends and business associates.  The government is asking Holwell to sentence Rajaratnam to 19 1/2 years to 24 1/2 years, which, prosecutors said, is the term suggested by the federal guidelines.

Rajaratnam’s lawyers said the government overstated the amount of money their client gained in the fraud and miscalculated other sentencing factors, resulting in a “grotesquely severe” recommendation. Rajaratnam is seeking a sentence “substantially below” the guideline range. Rajaratnam made only $7.4 million, they said.  They argued for a guideline calculation that would call for a sentence of 6 1/2 to 8 years....

Rajaratnam has also asked for leniency based on medical conditions he said would be life-threatening if he’s sent to prison. He hasn’t publicly disclosed the nature of his ailment, and Holwell has kept court papers discussing it secret....

Sabino said he would be surprised if Holwell gives Rajaratnam the sentence the government is seeking. “This is a nonviolent crime,” said Sabino. “He’s not a drug kingpin, he’s not a terrorist, he didn’t murder anybody.  And most of all, this is his first offense.”

Holwell is also unlikely to sentence Rajaratnam to eight years or less, according to Sabino. The judge will probably use the sentence to try to deter would-be Wall Street inside traders, Sabino said.   “A message needs to be sent to the Street,” Sabino said. “This was a very serious crime by Rajaratnam. It must be punished and it must be punished severely.”

In court papers, the government urged Holwell to make an example of Rajaratnam, saying he “represents the worst of illegal insider trading.”  Prosecutors compared him to Enron Corp.’s Jeffrey Skilling and WorldCom Inc.’s Bernard Ebbers, convicted in what prosecutors called “the worst of accounting frauds,” and Bernard Madoff, the man behind history’s biggest Ponzi scheme.  Skilling was sentenced to 24 years in prison, Ebbers to 25 years and Madoff to 150 years.

Judges have sentenced defendants convicted in connection with the Galleon investigation to an average of about three years.  Last month, U.S. District Judge Richard Sullivan gave Zvi Goffer 10 years for leading a Galleon-linked ring that bribed lawyers for inside tips about transactions involving their law firm’s clients....  Craig Drimal, another ex-Galleon trader, was sentenced to 5 1/2 years in prison. Danielle Chiesi, a former analyst at New Castle Funds LLC, got 2 1/2 years for passing tips to Rajaratnam and others. Drimal and Chiesi both pleaded guilty.

As of February, almost half of the 43 defendants sentenced for insider trading in the New York court from 2003 to 2010 avoided jail altogether, according to a Bloomberg analysis of court records.  Many of those defendants cooperated with the government or pleaded guilty, which often results in a lesser sentence....

Yesterday, prosecutors told Holwell that Rajaratnam shouldn’t be granted bail pending his appeal because he’s a flight risk. Rajaratnam, a naturalized U.S. citizen, has ties to Sri Lanka, where he was born, they said in court papers.

I think 15 years' imprisonment is a pretty good prediction for what Rajaratnam is likely to get.  In my view, the 10 years given to Zvi Goffer serves as a kind of floor and the roughly 20 years urged by prosecutors serves as a kind of ceiling.  I would not be surprised if the sentence ends up a little higher or a little lower than 15, perhaps in part to avoid the impression that the outcome here was just a split-the-difference choice between these poles.

Some related recent posts:

UPDATE:  Rajaratnam got "only" 11 years, as reported in this new post.

October 13, 2011 in Offense Characteristics, White-collar sentencing | Permalink | Comments (3) | TrackBack

Additional written testimony submitted at House Booker hearing

At the tail end of yesterday's hearing of the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee, titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," the members of the committee entered into the record submitted written testimony submitted by some public policy groups.  I hope to be able to provide links to all this submitted testimony, and already available at this link is testimony authored by Testimony of Mary Price, the Vice President and General Counsel of Families Against Mandatory Minimums (FAMM).  I believe a number of defense groups also submitted testimony, which I will post if/when I can find it.

UPDATE:  Here is a link to testimony from the ACLU submitted to the house subcommittee.

Some recent related posts about the House hearing:

October 13, 2011 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

"Punishing Pregnancy: Race, Incarceration and the Shackling of Pregnant Prisoners"

The title of this post is the title of this new article available via SSRN by Priscilla Ocen.  Here is the abstract:

The shackling of pregnant women prisoners during labor and childbirth is endemic within women’s penal institutions in the United States.  This article interrogates the factors that account for the pervasiveness of this practice and suggests doctrinal innovations that may be leveraged to prevent its continuation.  At a general level, it asserts that we cannot understand the persistence of shackling without understanding how historical constructions of race and gender operate structurally to both motivate and mask its use.

More specifically, this article contends that the shackling of pregnant prisoners during labor and childbirth can best be understood through an analysis that centers Black women and foregrounds the historical devaluation, regulation and punishment of Black women’s exercise of reproductive capacity in the context of slavery, convict leasing and chain gangs in the South.  The regulation and punishment of Black women within these oppressive systems reinforced and reproduced stereotypes of Black women as deviant and dangerous, and these images in turn animate harsh practices against all women prisoners.

Moreover, this article asserts that current jurisprudence concerning the Eighth Amendment, which is the primary constitutional vehicle for challenging conditions of confinement, is insufficient to combat this problem at the structural level.  This is so because of its focus on the subjective intentions of prison officials at the individual level and because of its omission of any consideration of how race underlies institutional practices.  Instead, this article suggests an expanded reading of the Eighth Amendment and the 'evolving standards of decency' language that undergirds the 'cruel and unusual punishments' clause.  This expanded reading, which this article refers to as the 'antisubordination approach,' draws upon Justice Harlan’s oft-cited dissent in Plessy v. Ferguson and his underappreciated reading of the Thirteenth Amendment therein to argue that conditions of confinement which result from or are related to repudiated mechanisms of racial domination should be deemed cruel and unusual punishment.

October 13, 2011 in Prisons and prisoners, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (50) | TrackBack

Interesting new numbers in latest Gallup poll of death penalty public opinions

Zc0mmtsaguquydfhqdeteaThis new release from the folks at Gallup, which is headlined "In U.S., Support for Death Penalty Falls to 39-Year Low; Fifty-two percent say the death penalty is applied fairly," reports on the results of the latest public survey on the death penalty. Here are highlights:

Sixty-one percent of Americans approve of using the death penalty for persons convicted of murder, down from 64% last year.  This is the lowest level of support since 1972, the year the Supreme Court voided all existing state death penalty laws in Furman v. Georgia.

Gallup first asked about use of the death penalty in murder cases in 1936.  At that time, 59% of Americans supported it and 38% opposed it. Americans' views on the death penalty have varied significantly over the 75 years since, including a period from the late 1950s to the early 1970s when less than a majority of Americans favored it.  Support climbed to its highest levels from the mid-1980s through the mid-1990s, including the all-time high of 80% who favored the death penalty in 1994.  Since then, support has gradually declined; this year's measure of 61% marks a 19-percentage-point drop over the past 17 years, and a 3-point drop from last year's measure.

The Oct. 6-9 poll was conducted shortly after the execution of Troy Davis in Georgia, which generated widespread protests and extensive news coverage.  This could help explain the slight drop in support for the death penalty this year.  However, there have been high-profile executions in the news in previous years without concomitant drops in death penalty support, making it less clear that such events have a direct impact on attitudes.

This year, 40% of Americans say the death penalty is not imposed often enough, the lowest such percentage since May 2001, when Gallup first asked this question.  Twenty-five percent say the death penalty is used too often, the highest such percentage yet that Gallup has measured.  The rest (27%) say the death penalty is imposed about the right amount....

Support for the death penalty is highly partisan in nature.  Almost three-quarters of Republicans and independents who lean Republican approve, compared with 46% of Democrats and independents who lean Democratic.  Additionally, men, whites, and those living in the South and Midwest are among those most likely to support the death penalty. Americans younger than age 30 are less likely to support the death penalty than are those who are 30 and older.

October 13, 2011 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (5) | TrackBack

October 12, 2011

"Inside-Trade Sentencing Gets Tougher"

The title of this post is the headline of this new Wall Street Journal piece, which gets started this way:

When disgraced hedge-fund titan Raj Rajaratnam, Wall Street's latest symbol of perfidy and excess, is sentenced in federal court Thursday, he will come up against a hard and unavoidable truth: Inside traders are facing considerably harsher sentences than they did in the past.  Mr. Rajaratnam is expected to receive among the longest-ever U.S. prison terms for his role in one of the biggest U.S. insider-trading cases ever, lawyers say.
 A higher percentage of those found guilty of such crimes are receiving significant time behind bars than in the past, according to a Wall Street Journal analysis. In the last two years, defendants sent to prison on insider-trading charges in New York federal courts have received a median sentence of about 2½ years, according to the Journal analysis of white-collar sentencing data from court records and archives involving 108 cases. Just Wednesday, hedge-fund trader Michael Kimelman was sentenced to 2½ years in prison for inside trading.

Those sentences compare with a median sentence of 18 months in the past decade and 11½ months from 1993 to 1999, according to the Journal analysis.  Meanwhile, a higher percentage of guilty insider-trading defendants on Wall Street and in corporate America have been incarcerated in recent years, according to the analysis.  In the past two years, 79% of defendants sentenced in New York have been sent to prison, compared with 59% in the 2000s and less than half from 1993 to 1999, the analysis shows.

October 12, 2011 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (1) | TrackBack

Washington state struggling with potential corrections budget cuts

2016465414This recent article from the Seattle Times, which is headlined "Budget woes: Will parolees get a free pass?," discusses some of the potential criminal justice consequences of budget cut realities in Washington state.  Here are excerpts:

Prison inmates convicted of murder and other violent crimes could be released without supervision if state lawmakers agree to a drastic set of cuts outlined by the state Department of Corrections.

Under one proposal, roughly 12,000 of the 17,000 felons now supervised in the state's version of parole would be unsupervised upon release from prison, a move one Department of Corrections (DOC) official called "devastating."

Other "reduction alternatives" proposed by DOC include increasing inmates' health-care co-pays to $4 from $3 and releasing inmates judged to be low and moderate risks to re-offend 120 days early, as long as they had not been convicted of a sex offense.

Hoping to head off some proposed cuts, Corrections officials are making budget trims in advance of the state Legislature's special session set for the end of November.  Among expenditures that could be on the chopping block is a 1,000-bed prison that DOC plans to open in Western Washington by 2016.

The state, which is looking to cut nearly $2 billion from the budget this biennium, has asked nearly all major state agencies to submit budget plans reflecting both 5 percent and 10 percent across-the-board cuts.  DOC's budget for the current biennium, which ends in June 2013, is $1.6 billion.  The department already has cut $250 million from its budget over the past three years by closing three prisons and slashing 1,200 jobs.

The deepest cut discussed by DOC would be to the agency's community corrections, or parole, division.  Under the worst-case scenario of a 10 percent cut, 12,000 convicts could be released from community supervision, a move that would save the state about $92 million over 18 months.  It also would require laying off 510 DOC community corrections officers and support staff, Corrections spokesman Chad Lewis said....

Tim Welch, a spokesman for the Washington Federation of State Employees (WSFE), which represents about 40,000 state workers, warns that the cuts to community corrections could endanger the public.  "We view it as wiping out community supervision, and that's going to harm public safety," Welch said.  "It's a neutron bomb against public safety."

Welch, whose union represents about 1,200 community corrections employees, said the WSFE supports several options to achieve cost savings, including the possibility of putting a proposal before voters to raise taxes.

"It's so devastating, I can't imagine what community corrections would look like," said Mark Janney, a community corrections supervisor who heads a DOC office in North Seattle. "We would be the Department of Prisons."...

If the 10 percent proposal is approved, most sex offenders not still in prison, including those supervised by GPS tracking bracelets, no longer would be supervised.  Felons convicted of murder, kidnapping, assault and other violent crimes also no longer would be supervised upon release.

In addition to not having a probation officer with whom to check in, inmates being released would not have help finding services such as housing and treatment for mental health and substance abuse.  Felons who would remain on community supervision would be drug and sex offenders court-ordered to serve a reduced sentence, which includes a combination of incarceration and treatment.  Felons ordered to serve probation for out-of-state crimes also would remain on supervision.

"You're talking about releasing inmates early, without any supervision. It's just really frightening," said Tracey Thompson, secretary of Teamsters Local 117, which represents about 5,500 corrections officers who work inside the prisons.  "How much deeper can you cut in this area without significantly undermining public safety and staff safety?"

In the past, the DOC has been sued by victims of crime for failing to supervise felons adequately. In 2010, for example, the state paid $4.25 million to settle a lawsuit filed by a Burien woman who suffered brain injuries when she was struck by a car driven by a mentally ill felon under DOC supervision.

October 12, 2011 in Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Dangerousness and dignity dicta could make SCOTUS work in Florence of sentencing interest

I have not been following the jail strip-search case before the Supreme Court too closely, in part because it is a Fourth Amendment case and in part because I lack the time to follow everything closely. But this early SCOTUSblog report on today's oral argument in Florence v. Board of Chosen Freeholders leads me now to the suggest that sentencing fans keep a close eye out for this forthcoming opinion.  First, here are parts of the helpdul SCOTUSblog report from Lyle Denniston: 

One thing, and only one thing, emerged clearly after a busy — and often confusing — hour of Supreme Court argument Wednesday on the constitutionality of strip-searches in local jails: the outcome is not going to be a categorical rule, one way or the other.  None of the three lawyers argued for that, and nowhere near a majority of the Justices seemed prepared to rule flatly for or flatly against strip-searching of arrested individuals.   But where five Justices might draw the line was entirely unpredictable after the hearing on Florence v. Board of Chosen Freeholders (docket 10-945).

What might turn out to be decisive is that the Justices discovered — to the surprise of some of them — that there was so little evidence that smuggling weapons or drugs into jails or prisons was actually a serious, documented problem. Several members of the Court pressed for “empirical evidence” of actual experience, but got in response only surmises, suggestions that it was fantasy not to appreciate that jails are by nature very dangerous places.

Although there were some comments from the bench — especially from Chief Justice John G. Roberts, Jr. — that not much was in dispute, it seemed obvious that the case involves anything but trivial differences of opinion. The Justices were deeply concerned about protecting the security of jails, but also were highly skeptical of an “anything goes” policy that would force every newly arrested individual to disrobe and have their bodies inspected, up close and perhaps with some manual manipulation. The members of the Court searched — at times in vain — for some guidance on just what potential threats to individual “dignity” were too much to be constitutionally forbidden....

The Court had real difficulty, for example, as the Justices tried to nail down just what Washington lawyer Thomas C. Goldstein was proposing as a Fourth Amendment standard to govern strip-searching.... Goldstein’s approach, indeed, allowed his principal adversary, Washington lawyer Carter G. Phillips, to begin his portion of the argument by saying that Goldstein’s argument moved around so much that it was not exactly clear what his constitutional claim was. But, as matters were to unfold, Phillips, too, wandered at times from his core argument that the Fourth Amendment should simply have nothing to do with the procedures used in jails upon the receipt of new arrestees. He conceded to Justice Sonia Sotomayor, for example, that there is “some constitutional right of privacy” in the jail setting, and conceded that manual inspection of body cavities would invade that right unless there were some strong evidence of a threat to justify it.

Justice Antonin Scalia somewhat sarcastically said that what Phillips seemed to be advocating was a Supreme Court ruling that was limited to the validity of “squatting and coughing” inspections, and nothing more.  Scalia was the Court’s most vigorous champion of jail security, and thus its least skeptical about strip-searching as a routine jail-entry policy.

The most aggressive defense of strip-searching, without any notable limits, came from a Justice Department lawyer, speaking for the federal government. Nicole A. Saharasky, an assistant to the U.S. Solicitor General, resorted to sometimes fanciful conjecture about how even individuals arrested for the most petty crimes — including political protesters — might actually be lurking conspirators to get guns, knives and drugs into jails or prisons. Her strongly emotional argument was notably short on hard evidence to prove her point.

Though I want to read the full transcript myself before calling Florence a "sentencing sleeper," this report on the oral argument leads me to think we could get multiple opinions from a splintered Court in Florence and that important sentencing-related concepts like dangerousness and dignity may be discussed at some lengthy in these opinions.  If nothing else, the Florence case may give us a helpful (and perhaps surprising?) window on the newer Justices' views on what should be considered constitutionally permissible in the name of jail security.

UPDATE:  The oral argument transcript in Florence is now available at this link.

October 12, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"Underwear bomber" pleads guilty mid-trial, now on to sentencing

As detailed in this new New York Times piece, "Umar Farouk Abdulmutallab, the Nigerian man accused of trying to blow up a commercial airliner on Christmas Day in 2009, abruptly pleaded guilty Wednesday morning to each of the eight counts against him, officials said."  Here is more:

The sudden reversal came before the start of the second day of proceedings in the trial of Mr. Abdulmutallab, who is not a lawyer but who was representing himself.

The eight counts include attempting to use a weapon of mass destruction and conspiring to commit an act of terrorism. The charges carried a penalty of life in prison, but the details of the plea were not immediately available....

In court on Tuesday, Mr. Abdulmutallab, well-educated and from a well-to-do Nigerian family, said little. He wore a colorful tunic, and grasped his hands before him and flipped through papers during much of the proceedings.

For their part, prosecutors laid out a case that appeared to be some cross between an ordinary lineup of witnesses to a crime and a rare courtroom primer in terrorism, Al Qaeda, jihad and martyrdom. Mr. Tukel told jurors that Mr. Abdulmutallab, while still in school, had begun to listen to the tape-recorded messages of Anwar al-Awlaki, the cleric who was recently killed by a missile from an American drone aircraft in Yemen. “He wanted jihad, he sought it out and he found it,” Mr. Tukel said of Mr. Abdulmutallab.

I assume that no formal plea deal was put together in order to get this plea to now happen, and I will be interested to read about just how this high-profile trial came to such an abrupt end today.  I am, of course, also interested to hear if everyone agrees with my views that (1) it is very likely that federal prosecutors will contend at sentencing that only an LWOP sentence is "sufficient" under 3553(a) for Abdulmutallab, and (2) pretty likely that Abdulmutallab will in fact get an LWOP sentence.

October 12, 2011 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Early reactions to the (too) quick House hearing on post-Booker sentencing

Less than two hours after it started, today's hearing of the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee, titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," has come to a close. As detailed in prior posts linked below, a lot happened in the 100 minutes of this hearing, though I seriously doubt that much is going to happen legislatively as a result of what just transpired.  Without too much reflection, here are a few quick reactions:

1.  There is clearly lots of bad blood among members of this subcommittee as reflected in a shouting match that broke out between Rep. Jackson Lee and Rep. Sensenbrenner

2.  Other than a precious few members, it is not obvious that many even on this subcommittee care too much about this subject.  Only about one-quearter of the 20 members of the subcommittee appeared to be in attendance and only a precious few asked questions suggesting they even understood how modern federal sentencing works.

3.  The absence of a Justice Department representative was both telling and disappointing, especially because it is very hard to predict how federal prosecutors would view proposals to abolish the US Sentencing Commission or to have a Blakely-compliant mandatory guideline system.

4.  The USSC's apparent recommendations to Congress to give reasonableness review more bite via statutory reform is very sound and very important and very constitutionally challenging, all of which in turn leads me to predict/fear that it is very unlikely to happen anytime soon.

5.  A lot of worrisome "smaller" federal sentencing issues that could benefit most from congressional oversight and legislative reform — the application of the Armed Career Criminal Act, child porn victim restitution awards, fast-track departures, the persistent growth of the federal criminal docket — did not even get mentioned.

6.  We desparately still need refined and consistent nomenclature to describe different potential kinds of federal guideline systems other than just advisory, presumptive and mandatory.  I especially urge readers to help me come up with a labels other than "presumptive" to describe the kind of revised advisory guideline systems — advisory with bite? advisory with great weight? — to describe what the USSC now seems to be advocating Congress to enact.

I could go on and on and on, but I have now said more than enough and need to get off the grid for awhile just to make sure my head does not explode as I have flash-backs from some of the worst moments of this morning's House hearing.

Some recent related posts about the House hearing:

October 12, 2011 in Blakely in Legislatures, Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (8) | TrackBack