June 16, 2012
Condemned Ohio murderer prevails on Ford claim on eve of execution date
As reported in this local article, an Ohio state trial judge "ordered a halt Friday to the scheduled execution of death row inmate Abdul Awkal, ruling that the convicted killer lacked the mental capacity to understand the connection between his crime and his punishment." Here are the details:
Cuyahoga County Common Pleas Judge Stuart Friedman read his 13-page ruling from the bench in a morning proceeding that ended a weeklong competency hearing featuring testimony from psychiatric doctors about Awkal’s mental illness.
“The court is forced to conclude that, as a result of severe and persistent mental disease, Abdul Awkal presently lacks the capacity to form a rational understanding as to the reason the state intends to execute him on June 20,” he stated. “Abdul Awkal may not be executed unless and until he has been restored to competency,” he added.
Kevin Cafferkey, one of Awkal’s lawyers, said after the hearing that he intended to file for a stay of execution with the Ohio Supreme Court and for a reprieve from Gov. John Kasich. Awkal is scheduled for execution on Wednesday at 10 a.m.
Prosecutor Bill Mason said he disagreed with Friedman and would appeal the ruling. “Awkal changed his story on the eve of execution and blamed the CIA for executing him, after admitting that he had lied to psychiatrists and has now successfully manipulated the court," Mason said in a written statement.
Mason said the Awkal case has been reviewed and approved for nearly 20 years by appeals and federal courts. “Unfortunately, Judge Friedman's decision will likely cause even more delay in this case and prolong the suffering of the victims' family. Delays like this are what is wrong with the death penalty," Mason concluded.
In 1992, Awkal shot and killed his estranged wife and her brother, Latife and Mahmoud Abdul-Aziz, inside the Old Lakeside Courthouse during a divorce and child-custody dispute. Friedman was the judge who sentenced him to death.
Kasich had granted Awkal a two-week reprieve from his original June 6 execution date after defense lawyers made a last-ditch claim that the 53-year-old Lebanese immigrant is mentally ill and does not understand his punishment.
In reaching his decision, Friedman acknowledged the difficulty of determining Awkal's sanity and mental capacity to understand the consequences of his actions....
All five doctors who examined Awkal determined he was severely mentally ill, suffering from schizophrenia. But they also said they believe he can be restored to mental competency through the use of anti-psychotic drugs. The doctors disagreed, however, in their diagnoses of Awkal's mental capacity to understand the connection between his crime and his upcoming execution....
David Singleton, executive director of the Ohio Justice & Policy Center, and one of Akwal’s lawyers, said he hoped Friedman's ruling would end the state's attempts to execute his client. “Given Mr. Awkal’s mental incompetence, we are confident that the court’s ruling will be the final word in this matter,” Singleton said.
I doubt many (any?) death row defendants have prevailed on this kind of claim (known as a Ford claim based on the 1986 SCOTUS ruling prohibiting the execution of anyone too mentally ill to understand their punishment) to halt an execution only days before it was scheduled to take place.
Any early federal sentencing predictions after quick conviction in Gupta insider trading case?
As reported here by CNN, "Rajat Gupta, the consummate corporate insider and former director at Goldman Sachs, was found guilty of insider trading on Friday," and it took the "federal jury in New York ... just over a day of deliberation [to find] Gupta guilty of four of six criminal counts." In this New York Times piece, Professor Peter Henning provides a great preview of some sentencing basics now facing Gupta:
The jury convicted Mr. Gupta on tips he made to Mr. Rajaratnam in September and October 2008, about developments at Goldman. Prosecutors had wiretaps of Mr. Rajaratnam describing his source on Goldman’s board, which pointed a finger directly at Mr. Gupta. With sentencing scheduled for Oct. 16, the focus of the case will now shift to his punishment as well as the potential issues his defense lawyers may introduce on appeal.
In recommending prison terms for insider trading, the federal sentencing guidelines for insiders focus primarily on the financial gains made by a defendant. Mr. Gupta did not personally trade in Goldman Sachs or Procter & Gamble shares based on the inside information he received. But by tipping off Mr. Rajaratnam, he is responsible for the transactions conducted through Galleon Group based on the information he provided.
By convicting Mr. Gupta of conspiracy, prosecutors will most likely argue that he is responsible for all trading cited in the indictment — which was estimated at trial to have generated for Galleon over $16 million in gains or in losses avoided. Prosecutors will also seek to add on to the sentence by arguing that Mr. Gupta “abused a position of trust” by leaking information while serving as a director of Goldman and P&G. Based on these two issues, the sentencing guidelines recommend a sentence of 8 to 10 years.
Mr. Gupta will argue for a much lower sentence, claiming that the acquittal on two counts should mean that any trading gains from transactions related to those charges should be excluded from the sentencing calculation. He is also likely to argue that Mr. Rajaratnam himself made the decision on how much to invest, and so the amount of the gain overstates the harm from the insider tips.
But even based solely on the 2008 Goldman trades in which he was convicted of tipping Mr. Rajaratnam, the sentencing guidelines range would still dictate 6 to 8 years in prison. Mr. Gupta is likely to claim that other factors should be taken into consideration — his strong reputation in the business world and extensive charitable efforts — to argue for a much lower sentence, perhaps even home confinement.
Judge Jed S. Rakoff of the Federal District Court in Manhattan will determine the sentence, and he has shown some hostility toward the sentencing guidelines in a previous securities fraud case. So he may be persuaded to impose a lower prison term than the government wants.
In United States v. Adelson, an accounting fraud case, the guidelines calculation called for a life sentence for a company’s former president who had helped cover up an accounting fraud. But Judge Rakoff rejected such a severe punishment, describing “the utter travesty of justice that sometimes results from the guidelines’ fetish with abstract arithmetic, as well as the harm that guideline calculations can visit on human beings if not cabined by common sense.”
You can be sure that Mr. Gupta’s defense team will include the Adelson opinion prominently in its sentencing arguments. And prosecutors naturally will do their best to explain why insider trading is different.
In 2009, Judge Rakoff sentenced the lawyer Marc Dreier to 20 years in prison for leading a scheme that defrauded investors of nearly $700 million, rejecting the government’s recommendation of a 145-year prison sentence. At the sentencing, Judge Rakoff said that “Mr. Dreier is not going to get much sympathy from this court, but he is not Mr. Madoff from any analysis, and that’s why I can’t understand why the government is asking for 145 years.” As a result, prosecutors are likely to temper their sentencing recommendation, and will have to defend their interpretation if they want the court to impose a stiff sentence.
Based on Henning's guideline calculations and my expectation that Gupta's lawyers will put together a strong set of sentencing materials, I would place the over/under betting line for Gupta's sentencing at around 5 years' imprisonment.
My instinct is that Rajaratnam's 11-year prison term providing a functional ceiling on Gupta's sentencing exposure, and that Judge Rakoff is going to be strongly inclined to impose some term of imprisonment. Splitting the difference within those basic parameters, and given Judge Rakoff's historic inclination to resist rigid application of the fraud guidelines, Gupta can reasonably hope for a sentence of only a few years imprisonment. But, especially in this political climate and in the wake of a jury conviction, I am sure prosecutors will be advocating forcefully for a prison term closer to a decade.
UPDATE: This new Bloomberg piece provides lots of background on Judge Rakoff's recent sentencing history in white-collar cases. It notes, inter alia, that last year Judge Rakoff "entenced Winifred Jiau, a Stanford University-educated consultant convicted of corrupting friends and selling confidential information, to four years in prison, less than half of the maximum 10 years sought by federal prosecutors." That datum makes me inclined to move the over/under betting line for Gupta's sentencing down to 4 years' imprisonment.
June 16, 2012 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
June 15, 2012
"Sensible Sentences for Nonviolent Offenders"
The title of this post is the headline of this New York Times editorial. Here are excerpts:
The enormous strain prison costs put on state budgets has led some conservatives and liberals to do something sensible together. Democrats and Republicans in several states are pushing to reform criminal justice policies based on strong evidence that imprisoning nonviolent offenders for ever longer terms adds huge costs with little benefit to public safety.
Texas closed a prison last year, for the first time in its history, after reducing its prison population by steering nonviolent drug offenders to treatment and adopting other policies. South Carolina and Mississippi eased eligibility standards for parole. South Carolina, Alabama, Arkansas and other states have raised the dollar amount that triggers felony property crimes....
Offenders released in 2009 from state prisons served, on average, almost three years behind bars, nine months longer than those released in 1990. A new study by the Pew Center on the States reports that additional time in prison costs states more than $10 billion. More than half the extra cost was for nonviolent offenders.
The study also found that earlier release for nonviolent offenders would not have jeopardized public safety based on an analysis of arrest and incarceration data from Florida, Maryland and Michigan. Risk could be further reduced with better prerelease planning and strong community supervision. After decades of lengthening sentences, state leaders are realizing that it is possible to cut sentences and prison spending without harming the public.
June 14, 2012
Will feds seek to (cross)appeal Stanford's sentence of "only" 110 years in prison?
The question in the title of this post is my tongue-in-cheek response to this news (via this article) that " R. Allen Stanford, the Texas financier convicted of fleecing 30,000 investors from 113 countries in a $7 billion Ponzi scheme, was sentenced on Thursday to 110 years in jail." Here is more on the sentencing:
A defiant Mr. Stanford, in a rambling statement to the court before the sentencing, intermittently fought back tears and shuffled papers, and said, “I’m not up here to ask for sympathy or forgiveness. I’m up here to tell you from my heart I didn’t run a Ponzi scheme.” He blamed the government for the collapse of his businesses and asserted that “we could have paid off every depositor and still have substantial assets remaining.”
In response, federal prosecutor, William J. Stellmach, called Mr. Stanford’s version of events “obscene.”
“This is a man utterly without remorse,” Mr. Stellmach said. “From beginning to end, he treated all of his victims as roadkill. He went after the middle class, including people who didn’t have money to lose. People have lost their homes. They have come out of retirement.”
A federal jury in March convicted Mr. Stanford of 13 out of 14 counts of fraud in connection with a worldwide scheme over more than two decades in which he offered fraudulent high-interest certificates of deposit at the Stanford International Bank, which was based on the Caribbean island of Antigua.
Prosecutors argued that Mr. Stanford had consistently lied to investors, promoting safe investments for money that he channeled into a luxurious lifestyle, a Swiss bank account and various business deals that almost never succeeded.
Mr. Stanford’s defense lawyers pleaded for a sentence effectively of time served because of the three years he spent in prison waiting for his trial. Prosecutors recommended 230 years....
As regularreaders know, the feds are not usually too pleased when a district judges imposes a sentence less than half of what prosecutors have sought. In this case, though, I predict confidently that only Mr. Stanford will be appealing. I also predict the Fifth Circuit is unlikely to be moved by any sentencing appeal.
June 14, 2012 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack
"Scores in N.C. are legally 'innocent,' yet still imprisoned" due to federal gun laws
The folks at USA Today have this fascinating and fantastic front-page feature story concerning the many persons currently serving federal prison time for gun possession crimes that are no longer crimes in the wake of an important recent Fourth Circuit ruling. The headline of this post is drawn from the headline of the USA Today piece, which is today's must-read and includes these excerpts:
A USA TODAY investigation, based on court records and interviews with government officials and attorneys, found more than 60 men who went to prison for violating federal gun possession laws, even though courts have since determined that it was not a federal crime for them to have a gun. Many of them don't even know they're innocent.
The legal issues underlying their situation are complicated, and are unique to North Carolina. But the bottom line is that each of them went to prison for breaking a law that makes it a federal crime for convicted felons to possess a gun. The problem is that none of them had criminal records serious enough to make them felons under federal law.
Still, the Justice Department has not attempted to identify the men, has made no effort to notify them, and, in a few cases in which the men have come forward on their own, has argued in court that they should not be released.
Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime. And although they have agreed in court filings that the men are innocent, they said they must still comply with federal laws that put strict limits on when and how people can challenge their convictions in court.
"We can't be outcome driven," said Anne Tompkins, the U.S. attorney in Charlotte. "We've got to make sure we follow the law, and people should want us to do that." She said her office is "looking diligently for ways, within the confines of the law, to recommend relief for defendants who are legally innocent."
These cases are largely unknown outside the courthouses here, but they have raised difficult questions about what, if anything, the government owes to innocent people locked in prisons. "It's been tough," said Ripley Rand, the U.S. attorney in Greensboro, N.C. "We've spent a lot of time talking about issues of fundamental fairness, and what is justice."
It's also unusual. Wrongful conviction cases are seldom open-and-shut — usually they depend on DNA or other new evidence that undermines the government's case, but does not always prove someone is innocent. Yet in the North Carolina gun cases, it turns out, there simply were no federal crimes.
Using state and federal court records, USA TODAY identified 23 other men who had been sent to federal prison for having a firearm despite criminal records too minor to make that a federal crime. Nine of them remain in prison, serving sentences of up to 10 years; others are still serving federal probation. The newspaper's review was limited to only a small fraction of cases from one of the three federal court districts in North Carolina.
Federal public defenders have so far identified at least 39 others in additional court districts, and are certain to find more. And prosecutors have already agreed to drop dozens of cases in which prisoners' convictions were not yet final.
Some of the prisoners USA TODAY contacted — and their lawyers — were stunned to find out that they were imprisoned for something that turned out not to be a federal crime. And their lawyers said they were troubled by the idea that innocence alone might not get them out. "If someone is innocent, I would think that would change the government's reaction, and it's sad that it hasn't," said Debra Graves, an assistant federal public defender in Raleigh. "I have trouble figuring out how you rationalize this. These are innocent people. That has to matter at some point."...
Decades ago, Congress made it a federal crime for convicted felons to have a gun. The law proved to be a powerful tool for police and prosecutors to target repeat offenders who managed to escape stiff punishment in state courts. In some cases, federal courts can put people in prison for significantly longer for merely possessing a gun than state courts can for using the gun to shoot at someone.
To make that law work in every state, Congress wrote one national definition of who cannot own a gun: someone who has been convicted of a crime serious enough that he or she could have been sentenced to more than a year in prison.
Figuring out who fits that definition in North Carolina is not as simple as it sounds. In 1993, state lawmakers adopted a unique system called "structured sentencing" that changes the maximum prison term for a crime, based on the record of the person who committed it. People with relatively short criminal records who commit crimes such as distributing cocaine and writing bad checks face no more than a few months in jail; people with more extensive records face much longer sentences.
For years, federal courts in North Carolina said that did not matter. The courts said, in effect: If someone with a long record could have gone to prison for more than a year for the crime, then everyone who committed that crime is a felon, and all of them are legally barred from possessing a gun.
Last year, the U.S. Court of Appeals for the 4th Circuit said federal courts (including itself) had been getting the law wrong. Only people who could have actually faced more than a year in prison for their crimes qualify as felons under federal law.
The 4th Circuit's decision came in a little-noticed drug case, United States v. Simmons, but its implications could be dramatic. For one thing, tens of thousands of people in North Carolina have criminal records that no longer make having a gun a federal crime. About half of the felony convictions in North Carolina's state courts over the past decade were for offenses that no longer count as felonies under federal law.
No one yet knows precisely how many people were incorrectly convicted for having a gun, but the number could be significant. Rand, the U.S. attorney in Greensboro, estimated that more than a third of the gun cases his office prosecuted might be in question, either because the defendants didn't commit a federal crime at all by possessing a gun or because their sentences were calculated incorrectly. "We're going to be addressing this for a while," he said.
The Justice Department and federal courts moved quickly to clean up cases that were pending when the 4th Circuit announced its decision. Prosecutors dropped pending charges against people whose records no longer qualified them as felons; the 4th Circuit reversed convictions in more than 40 cases that were on appeal at the time. Some of the men were given shorter sentences; others were simply let go.
But the next question has proved far harder to answer: What should the government do with the prisoners whose legal cases were already over?
Whether [these legally innocent defendants] can go home depends on federal laws that put strict limits on when and how people who have already been convicted of a crime can come back to court to plead their innocence.
Those laws let prisoners challenge their convictions if they uncover new evidence, or if the U.S. Supreme Court limits the sweep of a criminal law. But none of the exceptions is a clear fit, meaning that, innocent or not, they may not be able to get into court at all. Federal courts have so far split on whether they can even hear the prisoners' cases.
Habeas corpus — the main legal tool for challenging unlawful detention — is currently ill-suited to such cases, said Nancy King, a Vanderbilt Law School professor who has studied the issue. Habeas mainly safeguards people's constitutional right to a fair process, she said, and the problem is that "saying, 'I'm innocent' isn't, on its face, that type of constitutional claim." Still, she said, "innocent people should be able to get out of prison."
Prosecutors don't disagree, though most said they are not convinced the law allows it. Rand, the U.S. attorney in Greensboro, said he is "not aware of any procedural mechanism by which they can be afforded relief," though he said lawyers in his office "have not been pounding on the table" to keep the men in jail.
"No one wants anyone to spend time in jail who should not be there," said Thomas Walker, the U.S. attorney in Raleigh. That's why he said prosecutors were quick to dismiss charges that were pending when the 4th Circuit ruled. But cases in which convictions are already final "are in a totally different posture and require us to follow the existing statutory habeas law," he said.
But there's also an even more basic question: How would the prisoners even know?... [C]ourts have asked public defenders to seek them out. Those lawyers said the Justice Department should do more to help, because it has better information and more resources, an assertion prosecutors dispute.
"We're doing it with our hands tied," said Eric Placke, a federal public defender in Greensboro. "I appreciate the compelling considerations they have to deal with. But I do think in cases of actual innocence that it would be nice, to say the least, if they would be a little more proactive." Placke and other public defenders said the reviews have been difficult because they often have limited access to records from the men's prior convictions, which has left them to hunt through files in courthouses across the state.
This story is sad, telling and remarkable for so many reasons, and it also seems to present a situation in which I might argue that some kind of habeas relief (or even federal clemency) is constitutionally required under the Fifth and/or Eighth Amendment.
As a matter of substantive due process and/or cruel and unusual punishment, I do not think the federal government should be constitutionally permitted to keep someone imprisoned for an act that all now seem to agree was not a federal crime. Though the statutory habeas rules might preclude relief, I think the continuing constitutional violation of on-going imprisonment of an innocent person demands some kind of immediate remedy. Clemency is often mentioned by the Supreme Court and commentators as the fail-safe in these kinds of cases, and I hope that this important USA Today piece will at the very least make the folks in the executive branch take this constitutional problem even more seriously.
June 14, 2012 in Clemency and Pardons, Gun policy and sentencing, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (52) | TrackBack
You be the sentencing judge: what should "putrescent" Ponzi scheme R. Allen Stanford get?
The latest greatest notorious Ponzi schemer, R. Allen Stanford, is due to be sentenced in federal court in Houston today. Here are the basics and some sentencing predictions from this Bloomberg piece:
R. Allen Stanford, found guilty of leading a $7 billion international fraud scheme by a U.S. jury, will spend the rest of his life in prison if a federal judge grants prosecutors’ request.
Stanford, 62, will be sentenced today by U.S. District Judge David Hittner in Houston. Jurors in March convicted the Stanford Financial Group principal of 13 charges, including five counts of mail fraud and four of wire fraud, each punishable by as long as 20 years in prison.
Prosecutors asked for a 230-year term, the maximum under federal sentencing guidelines. Ali Fazel, one of Stanford’s lawyers, said the defense asked for a sentence of 31 to 44 months, based on a different, much-lower calculation of investors’ losses. Prosecutors contended that such a sentence was tantamount to “time served” for Stanford, who has been in custody since June 2009.
A sentence of about 30 years is more likely, according to Douglas Burns, a New York criminal defense lawyer. “This isn’t the Madoff case,” Burns said, referring to Bernard Madoff, the New York financier who received a 150-year term for a Ponzi scheme that bilked investors of more than twice as much money as Stanford’s victims. “This doesn’t seem to be at the same level.”
Stanford’s jury found he lied to buyers of certificates of deposit issued by his Antigua-based Stanford International Bank Ltd. and sold in the U.S. by his Houston-based securities firm, Stanford Group Co.... “Robert Allen Stanford is a ruthless predator responsible for one of the most egregious frauds in history,” the Justice Department said in its 34-page filing on June 6....
Barry Pollack, Washington criminal defense lawyer, said the government’s recommendation is inappropriate for a symbolic sentence. Stanford would be 77 if he served 15 years and would be unlikely to commit crimes after being released, Pollack said. “It’s hard to take a request for a 230-year sentence seriously,” Pollack said yesterday in a telephone interview.
Burns, a former federal prosecutor, agreed. “The government, I think, is not looking for this 230-year sentence,” he said. Given Stanford’s age, “a life sentence approximates 25 years.”
U.S. District Judge Denny Chin was under “unbelievable pressure” when he sentenced Madoff in 2009, Burns said, adding he doubted Hittner would mete out a comparable punishment. “I don’t think he’s going to give him a Bernie Madoff-like sentence because I don’t think the case is viewed like the Madoff case,” he said. A 12 1/2-year sentence would fairly and severely punish the financier, he said.
Thomas Petters, 54, a Minnesota businessman found guilty of orchestrating a $3.5 billion fraud in Dec. 2009, received a 50- year prison term. Galleon Group LLC co-founder Raj Rajaratnam last year was sentenced to 11 years for insider trading. He will be 55 tomorrow. Enron Corp. Chief Executive Officer Jeffrey Skilling, found guilty of both fraud and insider trading at the world’s biggest energy trading company, got a 24-year term in 2006. He is now 58....
More than 300 victims’ letters have been received by the court. Two fraud victims will address the judge before the financier is punished, according to court papers. “Madoff may go down in history for operating the world’s biggest Ponzi scheme, but I hope Judge David Hittner gives Allen Stanford the ‘bragging rights’ he deserves for operating the world’s most criminal Ponzi scheme,” victims advocate Angela Shaw said in an e-mailed statement. “His actions have ruined thousands of lives, for which he has shown no remorse.”
The evocative adjective "putrescent" comes from a line in the Government's quite compelling sentencing memo (available here), which does quite a nice job painting a picture of Stanford as even worse that Bernie Madoff. That memo, as well as the fact that Stanford went to trial and seems to have lived even more lavishly than Madoff with his ill-gotten gains, leads me to think Stanford may ultimately get a sentence closer to the 230 years recommended by the feds than the merely 30+ months sought by the defense (which seems almost as kooky and silly as the prosecutors' recommendation).
If I were the judge, I would probably would be going into today sentencing hearing with an eye toward a prison term set somewhere between 50 and 100 years. There is no magic in that recommendation, but I do think a fraudster of Stanford's status has earned himself a sentence that leaves him with no prospect of ever leaving prison alive.
June 14, 2012 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack
"Sentencing Councils and Victims"
The title of this post is the title of this new article posted on SSRN by Ian Edwards. Here is the abstract:
This article explores the place victims have, and should have, in bodies that formulate sentencing guidelines, with particular reference to sentencing guidelines in England and Wales and the Sentencing Council's obligation under the Coroners and Justice Act 2009 to have regard to ‘the impact of sentencing decisions on victims of offences’ when devising guidelines. The issues are situated in political and penological contexts; the place of victims in sentencing commissions or advisory bodies in the USA, England and Australia is analysed and the meaning and significance of the Sentencing Council's obligation towards victims is considered, relating the specific obligation to broader issues concerning the place of victims within bodies that formulate sentencing guidelines.
While incorporating victims within sentencing commissions might undermine commissions’ aims, it can play an important role in helping to boost public confidence in criminal justice, a touchstone for all western governments’ criminal justice policies.
Judge unmoved by undefeated boxing champ's claim prison is defeating him
As reported in this AP article, "Floyd Mayweather's demands that he be released from jail because the poor quality of the food and water has threatened his health were denied by a Las Vegas judge who says he should eat and drink what is being given to him behind bars." Here is more about the ruling which denied the boxing champ's request to get out of jail early:
Justice of the Peace Melissa Saragosa wrote in her late Wednesday decision that water has been made available to Mayweather around the clock and the only reason he isn't eating properly is because he refuses to eat the provided meals. Saragosa said Mayweather's complaints that he is unable to exercise in jail also are invalid because he has been "provided sufficient space and time for physical activity if he so chooses."
"This court finds, and the defendant admits, there is nothing illegal about the defendant's sentence in this case," Saragosa wrote.
A mere 12 days after Mayweather turned himself in to begin his three-month sentence, his legal team filed an emergency motion Monday asking the court to put him under house arrest or move him into the general jail population -- something that jail officials had avoided to protect the celebrity fighter. The motion claimed the undefeated champion might never fight again because he was getting out of shape in solitary confinement....
Mayweather pleaded guilty last year to reduced domestic battery charges stemming from an attack on his former girlfriend while two of their children watched. The plea deal allowed him to avoid trial on felony charges that could have gotten Mayweather up to 34 years in prison if he was convicted. Mayweather was sentenced Dec. 22, but was allowed to remain free long enough to make a Cinco de Mayo weekend fight.
Mayweather's legal team told the court this week that his personal physician, Dr. Robert Voy, visited the jail Friday and determined that the fighter appeared to have lost muscle tone. Voy estimated Mayweather was consuming fewer than 800 calories a day instead of his usual 3,000 or 4,000 calories. Mayweather also wasn't drinking enough because he wasn't allowed bottled water and doesn't enjoy tap water....
Prosecutor Lisa Luzaich scoffed at the complaints during a court hearing Tuesday. "It's jail," Luzaich told the court. "Where did he think he was going? The Four Seasons?"
Though perhaps not quite as catchy as "That's a clown question, bro," I sure like the idea of the sports world giving us the phrase "It's jail, not the Four Seasons."
June 13, 2012
Former prosecutor urging clemency for murderer he sent to Ohio's death row
As helpful reader alerted me to this notable new AP article, headlined "Prosecutor seeks mercy for condemned Ohio killer," discussing a clemency hearing for an Ohio death row inmate scheduled to be executed next month. Here are the interesting details:
The prosecutor who helped send the killer of a Youngstown store owner to death row told the state Parole Board on Tuesday that the condemned inmate should be spared because the crime didn't rise to the "heinous" level that deserves capital punishment.
Former Mahoning County prosecutor Gary Van Brocklin said he tried repeatedly to get John Eley to testify against another man he believes is the mastermind of the 1986 shooting in exchange for a lesser sentence. That other man, Melvin Green, gave Eley the gun used in the shooting and told him to go into the store, which had banned Green for previous threats, Van Brocklin said via a video interview presented to the parole board. "Basically, he set up the entire robbery," Van Brocklin said.
He also said that, while not making light of the death of store owner Ihsan Aydah, the robbery of the convenience store was the type of killing that was prosecuted more frequently as a death penalty case in the early days of the law. Ohio's current capital punishment law was enacted in 1981. "It wasn't in the more heinous nature of cases that now receive the death penalty," Van Brocklin said.
It's not unusual for judges or prosecutors to change their mind about individual cases or the death penalty itself, but such testimony on behalf of a condemned inmate is relatively rare.
Eley, 63, is scheduled to die by injection July 26 for the shooting at the Sinjil Market on Aug. 26, 1986. Eley confessed to the killing to police and invoked his Fifth Amendment right to refuse to testify against Green, who was acquitted. "I don't want to go through all this ritual," Eley told a court psychologist in 1987, according to a written presentation to the board by Paul Gains, the current Mahoning County prosecutor, who opposes clemency. "I did it. I want to do my time," Eley said in that interview. "I don't want to talk about it. I'm sorry I did it, that's all."...Scott Krichbaum, who represented Green at trial in 1987, said Tuesday that the state had enough to charge Green but not to convict him. "It's a common tactic to blame the other guy," Krichbaum, now a Mahoning County judge, said in a phone interview. "That's pretty standard in criminal defense."
Eley's attorneys based their argument for clemency around Green's role in the shooting. They also presented evidence that Eley came from an impoverished childhood, abused alcohol and drugs, had brain impairment and is mentally disabled and mentally ill.
Gains says Eley was a career criminal who showed no remorse over the shooting and whose IQ of 82 is well above the threshold of mental disability. Gains presented evidence to the board that Eley withdrew his claim of mental disability eight years ago and that psychological reports from the trial draw opposite conclusions about mental illness and mental disability.
Gains noted Eley had already been to prison twice by the time of Aydah's slaying. "And where Eley's attorneys now say that Melvin Green should be blamed for the crime, the evidence is unrebutted that Eley was the shooter, and that Eley went into the store alone while Green waited outside for Eley to subdue Mr. Aydah," Gains said in his board filing.
It will be very interesting to see what kind of recommendation the seven-member Ohio Parole Board makes in light of this former prosecutor's testimony, and also to see how Gov Kasich responds to that recommendation.
As I have noted in this space before, Gov Kasich has already established an interesting clemency record in capital and other cases during his first 18 months as Ohio's Governor, and one has to think that just about everything full of political significance in Ohio may get extra attention this political summer. In other words, this is yet another interesting death penalty story worth watching closely in the weeks ahead.
Big new ACLU report highlights the high cost of high numbers of elderly prisoners
The ACLU has just released this important and timely new report, titled "At America’s Expense: The Mass Incarceration of the Elderly." The full report runs nearly 100 pages, but seems worth reading in full (especially after checking out thanks to the ACLU this slideshow and this video on the topic). And the first seven paragraphs of the report's introduction highlights its basic findings and themes:
The United States is the largest incarcerator in the world, with 2.3 million people behind bars. Prisoners across the country are also getting older and experiencing all the same ailments that afflict those of the same age who are not behind bars. Our extreme sentencing policies and a growing number of life sentences have effectively turned many of our correctional facilities into veritable nursing homes — and taxpayers are paying for it.
From 1980 to 2010, the United States prison population grew over 11 times faster than the general population. During this time, the general population increased by 36%, while the state and federal prison population increased by over 400%. The number of elderly people in our prisons is growing even faster.
The graying prison population has become a national epidemic afflicting states around the country—from California to Missouri to Florida— further burdening already strained state budgets. According to the National Institute of Corrections, prisoners age 50 and older are considered “elderly” or “aging” due to unhealthy conditions prior to and during incarceration. This report uses that definition and finds that that there are 246,600 elderly prisoners behind bars across the country. To the extent possible, this report provides data for prisoners age 50 and older; in a few cases when data for this age group is not readily available, this report provides data on the next closest age range.
In 1981, there were 8,853 state and federal prisoners age 55 and older. Today, that number stands at 124,900, and experts project that by 2030 this number will be over 400,000, amounting to over one-third of prisoners in the United States. In other words, the elderly prison population is expected to increase by 4,400% over this fifty-year time span. This astronomical projection does not even include prisoners ages 50-54, for which data over time is harder to access.
The United States keeps elderly men and women locked up despite an abundance of evidence demonstrating that recidivism drops dramatically with age. For example, in New York, only 7% of prisoners released from prison at ages 50-64 returned to prison for new convictions within three years. That number drops to 4% for prisoners age 65 and older. In contrast, this number is 16% for prisoners released at age 49 and younger. Further, most aging prisoners are not incarcerated for murder, but are in prison for low-level crimes. For example, in Texas, 65% of prisoners age 50 and older are incarcerated for nonviolent drug, property, and other nonviolent crimes. This increasing warehousing of aging prisoners for low-level crimes and longer sentences is a nefarious outgrowth of the “tough on crime” and “war on drugs” policies of the 1980s and 1990s. Given the nation’s current overincarceration epidemic and persistent economic crisis, lawmakers should consider implementing parole reforms to release those elderly prisoners who no longer pose sufficient safety threats to justify their continued incarceration.
State and federal governments spend approximately $77 billion annually to run our penal system. Over the last 25 years, state corrections spending grew by 674%, substantially outpacing the growth of other government spending, and becoming the fourth-largest category of state spending. These corrections costs are mainly spent on incarceration, and incarcerating aging prisoners costs far more than younger ones. Specifically, this report finds that it costs $34,135 per year to house an average prisoner, but it costs $68,270 per year to house a prisoner age 50 and older. To put that number into context, the average American household makes about $40,000 a year in income.
States can implement mechanisms to determine which aging prisoners pose little safety risk and can be released. Releasing many of these individuals will ease the burden on taxpayers and reunite prisoners with their families to care for them. This report conducts a fiscal impact analysis detailing the cost savings to states in releasing the average aging prisoner. While some of these prisoners may turn to the government for their healthcare or other needs, government expenditures on released aging prisoners will be far cheaper than the costs of incarcerating them. Based on statistical analyses of available data, this report estimates that releasing an aging prisoner will save states, on average, $66,294 per year per prisoner, including healthcare, other public benefits, parole, and any housing costs or tax revenue. Even on the low end, states will save at least $28,362 per year per released aging prisoner.
North Carolina legislature trying again to cut back on state's consequential Racial Justice Act
As reported in this local article, which is headlined "House approves bill that weakens Racial Justice Act," legislators in North Carolina are trying again to take the teeth out of landmark legislation which appears to have functionally killed the death penalty in the Tar Heel State. Here are the details:
The House of Representatives on Tuesday approved a bill that would substantially weaken the Racial Justice Act. The 2009 law allows death-row inmates to try to use statistical proof of racial bias by North Carolina prosecutors to convert their sentences to life in prison without parole. The bill approved Tuesday so restricts the use of statistics that they would be useless in most cases.
Statistics could only be used for the county or judicial district where the crime was committed, rather than statewide, and only covering a period of 10 years before the offense and two years after the sentence. Defendants would have to come up with some other evidence to prove bias, as statistics alone would not be enough, under the proposed law.
The 72-47 vote Tuesday would be enough to override a gubernatorial veto. Last year, Gov. Bev Perdue vetoed another bill aimed at dismantling the Racial Justice Act. The margin of victory was accomplished with five conservative Democrats who once again broke party ranks.
The House is expected to give final approval to the bill on Wednesday, and then it will go to the Senate, which also has enough votes for an override if necessary. The Senate overrode the veto in January, but the House didn’t have the votes to do so....
Rep. Nelson Dollar, a Republican from Cary, said on the House floor Tuesday the Racial Justice Act was well-intended but has simply allowed convicted killers of any race another avenue to try to avoid the death penalty. The law should be about each case and not statistics, he said. “This is about monsters,” Dollar said. “Monsters. Evil people doing unspeakable, inhuman acts. That’s what this is about.”
Rep. Angela Bryant, a Democrat from Rocky Mount, answered Dollar. “Just because we face monsters, we will not ourselves become monsters,” she said. “We are upholding a system of laws that will apply no matter what monsters we face.”...
Following the vote, Sarah Preston, police director for the American Civil Liberties Union of N.C., issued a statement criticizing legislators for passing a bill that ignores the findings of a Cumberland County Superior Court judge earlier this year that there was overwhelming evidence of racial bias in the state’s capital punishment system. “This effort is a direct attack on the entire Racial Justice Act, a nationally recognized civil rights law that would be gutted by this bill,” Preston said.
If (when?) this reform of the NC Racial Justice Act becomes law, I suspect there will still be years of litigation before the North Carolina even gets close to resuming executions.
A few older and more recent posts on NC Racial Justice Act:
- NC Gov signs new racial justice act concerning capital prosecutions
- Will NC's new Racial Justice Act effectively kill the state's death penalty?
- New research suggests race of victim impacts NC death penalty administration
- NC defender officer urging that racial bias claims be brought in every capital case
- NC prosecutors bring complaints about state's Racial Justice Act to court
- State judge refuses to overturn Racial Justice Act in North Carolina
- Talk of profound changes to North Carolina's potent Racial Justice Act
- North Carolina DAs urge state legislature to repeal Racial Justice Act
- Veto debate follows NC legislature's vote to repeal state's capital Racial Justice Act
- NC Governor vetoes bill to repeal state's Racial Justice Act
- North Carolina legislature creates committee to study state's Racial Justice Act while considering veto override
- NC death row defendant prevails in first case decided under state's Racial Justice Act
- Reviewing the uncertain state of capital justice in the state of North Carolina
- NY Times editorial on "Race and Death Penalty Juries"
Lots new to check out over at The Crime Report
Regular readers may be tired of hearing my recommendation that every sentencing fan should should make regular visits to The Crime Report. But these items, all posted in just the last day, provide more support for my advice:
June 12, 2012
"Death in Prison: The Right Death Penalty Compromise"
The title of this post is the title of this notable new piece on SSRN by Professor Russell Covey. Here is the abstract:
The death penalty today provides virtually none of the benefits its advocates proffer as justifications for its existence. The tiny number of death sentences imposed, the even tinier number actually carried out, the enormous drain on public resources, and the decade-long delays that inevitably occur thoroughly undermine any deterrent or retributive benefits today’s death penalty might otherwise provide. In this paper, I argue for a compromise position that promises to better serve penal purposes and that will save states money at the same time: abandon the current dysfunctional death penalty in favor of a new ultimate sentence: death-in-prison.
A sentence of death-in-prison would be exactly what it says: a prisoner sentenced to death-in-prison would remain in prison until he or she died. Death-in-prison would be a kind of hybrid sentence: like life in prison without possibility of parole (“LWOP”), death-in-prison would entail lifetime incarceration but no affirmative state action to terminate the prisoner’s life, but death-in-prison would also share several features of the conventional death penalty. As with the conventional death penalty, a special penalty trial would be needed to impose the ultimate death-in-prison sentence. In addition, persons sentenced to death-in-prison might continue to serve their sentences in special segregated “death rows.” Death-in-prison sentences would also be imposed with all the magisterial weightiness of conventional death sentences. Persons so sentenced would be told, like those in conventional death penalty states, that the punishment for their crime is the ultimate one — death. If adopted, death-in-prison would reduce criminal justice expenditures, facilitate community healing, discourage divisive and ineffective commutation campaigns, and diminish wrongful executions, without forgoing what is arguably the greatest benefit of the current death penalty: the expressive value of imposing a “death” rather than a “life” sentence on highly culpable offenders.
Effective commentary on upcoming sentencing of Ponzi schemer Allen Stanford
As reported in this post last week, federal prosecutors have submitted a sentencing memo seeking a 230-year prison term for R. Allen Stanford. Today, via this posting on the DealBook section of the New York Times, Professor Peter Henning provides has some astute thoughts on the upcoming sentencing. The piece is headlined "Viewing Financial Crimes as Economic Homicide," and here are excerpts:
R. Allen Stanford, who was found guilty of operating a multibillion-dollar Ponzi scheme, is likely to receive a sentence later this week that will require him to spend the rest of his life behind bars. If that happens, it will continue a pattern in which white-collar defendants convicted of committing large-scale fraud have received long prison terms, far longer than what has been meted out in the past.
In March, Mr. Stanford, a Texas tycoon, was convicted on 13 counts of fraud and money laundering related to the collapse of Stanford International Bank, based in Antigua. Investors lost billions of dollars in what were billed as high-yield certificates of deposit but turned out to be largely worthless. Thousands of victims throughout the United States and the Caribbean were affected.
In a sentencing recommendation filed in the Federal District Court in Houston, prosecutors asked Judge David Hittner for 230 years in prison, the maximum permitted by federal law for the convictions. Not surprising, Mr. Stanford is seeking a much lower punishment that would effectively result in a sentence of time served since he was jailed after being charged in 2009.
I’m not really going out on a limb by predicting that the actual sentence will be somewhere in between those two recommendations. But how high is the sentence likely to be? ...
One reason prosecutors have asked for such a startlingly high amount for Mr. Stanford is that a court can only sentence a defendant to the maximum permitted under the statute. Thus, prosecutors have asked the judge to impose separate sentences for each violation, totaling 230 years in prison.
If Judge Hittner follows the government’s recommendation, the sentence would exceed the 150-year sentence imposed on Bernard L. Madoff for perpetrating the greatest Ponzi scheme in history. Such a long sentence could never be completely served, so it would be largely symbolic, intended to reflect the impact of Mr. Stanford’s crimes.
While it is unlikely that Judge Hitter will impose the statutory maximum term the government is seeking, it would not be surprising to see a sentence of at least 30 years -- and perhaps as much as 100 years. That would fit in the pattern in recent financial fraud cases in which federal prosecutors sought long prison terms and judges have agreed to punishments that put white-collar defendants in jail for the rest of their lives.
Other defendants found guilty of financial frauds have received stiff sentences. Edward Okun, who was convicted of defrauding customers of $126 million through his tax-deferral service, received a 100-year prison term in August 2009 after prosecutors recommended a sentence of 400 years. Thomas J. Petters received a 50-year prison sentence in April 2010 for defrauding investors of approximately $3.7 billion after prosecutors recommended he receive the maximum term of 335 years. Lee B. Farkas was sentenced to 30 years in June 2011 for his role as an executive at the mortgage lender Taylor, Bean & Whitaker after prosecutors urged a sentence of 385 years for a fraud that resulted in the collapse of Colonial Bank.
Mr. Stanford faces two significant hurdles in seeking a shorter sentence . First, he has not exhibited any contrition or remorse that can sway a judge. He has maintained his innocence at trial, and he plans to appeal the convictions.
A second, greater problem is the attitude of many judges after the financial crisis. Many have come to view financial frauds as crimes worthy of the type of sentences that was once reserved for violent offenders. White-collar defendants are no longer given light sentences because they were not viewed as threats to society.
Prosecutors often speak of the deterrent value that a long sentence will have on other financial executives who will be chastened to avoid defrauding investors and clients. As I discussed last year in a piece on Mr. Farkas’s sentencing, that is a message likely to be lost on other corporate executives because they do not view themselves as engaging in the type of misconduct that can lead to convictions, or life sentences.
Sentencing a white-collar defendant to a substantial prison term is really more about expressing society’s outrage at a misconduct that took advantage of investors and destroyed their financial well-being. These types of fraud are akin to economic homicide, and courts are treating them more and more as such.
Recent related post:
Whitely Bulger's moll gets sent up the river for eight years for harboring mobster
As reported in this local article, headlined "Bulger Girlfriend Greig Sentenced To 8 Years In Prison," a high-profile sentencing in Boston today resulted in a significant (within-guideline) prison term for a mobster's girlfreind. Here are the basics:
Catherine Greig, the longtime companion of James “Whitey” Bulger, has been sentenced to eight years in prison for helping the reputed mobster elude authorities for 16 years. She was sentenced Tuesday in Boston’s federal court during a hearing in which five family members of some of Bulger’s alleged murder victims delivered impact statements.
Judge Douglas Woodlock also imposed a $150,000 fine on Greig, who had no visible reaction to the sentence, according to WBUR’s David Boeri.
In March, Greig pleaded guilty to charges of conspiracy to harbor a fugitive, identity fraud and conspiracy to commit identity fraud. She faced a maximum sentence of 15 years for the three charges. Probation officials had recommended a sentence of 27 to 33 months, but Woodlock calculated the sentence to be between 87 and 108 months, under federal guidelines.
Prosecutors had requested a 10-year prison sentence, citing “the most extreme case of harboring [a fugitive] this district has ever seen.” Greig’s attorney said her conduct “arose out of the love she had for Bulger,” as he sought a 27-month sentence for his 61-year-old client.
Previous related posts:
- Interesting plea deal calling for high-profile defendant's forfeiture of intellectual property rights
- Heated "victims" and "low" guideline range set up interesting sentencing for mobster's moll
"Commutation Recipients Ask for OPA Investigation"
The title of this post is the title of this press release from FAMM (Families Against Mandatory Minimums). Here are excerpts:
A group of 16 formerly incarcerated people who received sentence commutations from Presidents William J. Clinton, George W. Bush, and Barack Obama sent a letter today urging President Obama “to investigate credible claims of serious misconduct against the Office of the Pardon Attorney (OPA) in the Department of Justice (DOJ).” The group also asked the president to use his authority to grant more commutations to deserving applicants.
“We know that the pardon attorney’s office failed President Bush and is now failing President Obama. We won’t know the extent of the damage, however, until the Congress or the Justice Department fully investigates the OPA,” FAMM President Julie Stewart said....
“The 16 individuals who signed this letter are not unique,” said Molly Gill, FAMM’s director of special projects. “There are thousands of other people in prison just like them, people who have worked hard to rehabilitate themselves and who would lead productive lives in our communities. Getting clemency shouldn’t be like winning the lottery. Every prisoner deserves a fair review from this administration’s pardon attorney -- and the president and the taxpayers who pay his salary deserve it, too. But it appears likely that no one will get a fair shake from the pardon attorney’s office unless the President or the Department reforms it.”
The text of the full letter, along with the names of all the signers, is available at this link. The letter, as well as the list of signatories, is an interesting read. I am fearful that this letter will not be enough to convince Congress to get serious about these matters, in part because they do not now fit into a convenient right/left political narrative. But I am very glad FAMM and others are trying to keep this important story in the news.
Related posts concerning federal clemency practices:
- "Presidential Pardons Heavily Favor Whites"
- Investigation reveals (shockingly?!?!) that politicians and politics impact federal pardons
- DOJ audit of federal clemency process with sound and fury signifying nothing
- Updated numbers on President Obama's disgraceful clemency record
- Noting President Obama's (still) stingy clemency record
- ProPublica reveals more ugliness in federal clemency process
- Public policy groups urge Senate Judiciary Committee to investigate US Pardon Attorney Office
- Commentary calls for "cleaning house" at DOJ's Office of the Pardon Attorney
June 11, 2012
Effective explanation of why we never can really know impact of capital punishment
Betsey Stevenson and Justin Wolfers, professors at the University of Pennsylvania’s Wharton School, have this effective new commentary now up at Bloomberg discussing the challenge of ever reaching a firm conclusion as to the true impact of the death penalty in the modern United States. The piece is titled "The Death-Penalty Debate Represents a Market Failure," and here are excerpts:
The debate over the death penalty offers a vivid illustration of a tragic flaw in the market of ideas: Strong beliefs attract a lot more attention, and can have a lot more influence, than the truth.
In recent years, five U.S. states have eliminated capital punishment, and several others are currently reconsidering their policies. Advocates of the death penalty insist the moves will lead to more murders. They point to a number of studies conducted over the past couple of decades that purport to find clear evidence supporting their view. Experts happily serve up unequivocal congressional testimony, and feed their analyses to lobby groups.
The reality, unsatisfying and inconvenient as it may be, is that we simply don’t know how capital punishment affects the homicide rate. That’s the conclusion of the National Academy of Sciences, which typically plays the role of impartial arbiter in these social-science debates. Their expert panel recently concluded that existing research “is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates,” and that such studies “should not influence policy judgments about capital punishment.”...
As big a deal as capital punishment may seem, it’s actually quite rare. Since the death penalty was reinstated in the U.S. in 1976, there have been about 670,000 homicides and only 1,296 executions, a rate of about one execution per 500 murders. This makes the task of discerning its specific impact very difficult.
To complicate things further, the homicide rate fluctuates enormously for reasons unrelated to capital punishment. So the correlation between capital punishment and homicide rates can be positive or negative, depending on the specific sample of states or countries analyzed, the sample period chosen, and which other determinants are accounted for.
Even if the correlation between capital punishment and murder rates could be reliably estimated, that wouldn’t be enough to prove causation. For instance, more vigorous capital punishment probably occurs at the same time as other reforms to sentencing, prisons and policing. Unless these variables are measured accurately -- and our existing criminal-justice statistics do not provide adequate measures -- it is impossible to disentangle which reforms are driving the homicide rate.
It’s not even clear how to determine whether a state has an active death penalty. Is Connecticut’s recent decision to eliminate its death penalty consequential, given that the state executed only one person in the past 50 years? California has issued 951 death sentences since 1976, but executed only 13 prisoners, suggesting that the courts have slowed down the system enough to effectively transform a nominal death sentence into life without parole.
Finally, we have no evidence at all on how would-be murderers perceive the risk of execution if they are caught, which is what really matters for deterrence.
Taken together, the various problems of measuring the relationship between crime and punishment yield what the National Academy panel calls “model uncertainty.” In English, that means there are many seemingly plausible ways of looking at the evidence that yield dramatically different answers. The true effect could be big or small, positive or negative. We just can’t estimate it with any certainty....
Even if one accepts the possibility that the threat of death deters some would-be murderers, that doesn’t mean it’s the best way to do so. Capital punishment diverts hundreds of millions of dollars from other criminal-justice interventions that may have done more to reduce homicide rates. This important point -- there’s an opportunity cost to spending on capital punishment -- often gets overlooked.
Amid all the uncertainty, the data do allow one conclusion that the National Academy should have emphasized more strongly: The death penalty isn’t the dominant factor driving the fluctuations in the U.S. homicide rate. If it were, the homicide rate in the U.S. wouldn’t have moved in lockstep with that of Canada, even as the two countries experimented with different death-penalty regimes (see chart). Likewise, homicide rates tend to rise and fall roughly in unison across states, even as some -- such as Texas -- ramp up executions, and others have chosen not to adopt the practice (see chart).
Overall, the panel’s conclusions are a welcome corrective to a debate in which politically expedient, yet imperfect, findings have attracted greater attention than those rare moments of humility when we social scientists admit what we don’t know. Now that a widely respected authority has established the uncertainty about the deterrent effects of the death penalty, it’s time for advocates on both sides to recognize that their beliefs are the product of faith, not data.
Recent and older related posts:
- Expert panel concludes that death penalty deterrence studies are inconclusive
- Yet another look at the death penalty deterrence question
- "Majority of Leading Criminologists Find Death Penalty Does Not Deter Murder"
- "Study says Texas death penalty a homicide deterrent"
Heated "victims" and "low" guideline range set up interesting sentencing for mobster's moll
This new AP article, which is headlined "Lawyer for Mass. mobster's lover asks for leniency," reports on the final pre-game development before a high-profile federal sentencing scheduled for tomorrow in a high-profile criminal case out of Boston. Here are the details:
The lawyer for the longtime girlfriend of Boston mobster James "Whitey" Bulger asked a judge on Monday to sentence her to 27 months in prison for helping the fugitive stay on the run for 16 years. Prosecutors have asked for a decade in prison for Catherine Greig, who faces sentencing Tuesday.
The 61-year-old pleaded guilty in March to charges of conspiracy to harbor a fugitive, identity fraud and conspiracy to commit identity fraud. The 82-year-old Bulger is awaiting trial on charges he participated in 19 murders. Authorities captured the couple in Santa Monica, Calif., last June. Prosecutors say the pair posed as married retirees from Chicago and had a stash of more than $800,000 in cash and 30 weapons in their apartment upon capture.
In a sentencing memo, Greig's lawyer Kevin Reddington said his client was in love with Bulger and there was no evidence she knew about the money or guns. He said Bulger was a "Robin Hood like" person and a "champion of the oppressed" when she fled with him, years before an indictment revealed "horrific allegations of murder."
The attorney called the government's sentencing recommendation a "draconian sentence" to crush someone prosecutors are trying to portray as a "sinister mastermind." Reddington also suggested that the government was trying to "rectify the bungling" of their investigation and redeem themselves from bad publicity. He said the government struck a plea deal with Greig, then faced criticism in the media from family members of those whom prosecutors say Bulger killed.
Greig faces a maximum of 15 years in prison, but prosecutors previously said she could serve as little as 32 months under sentencing guidelines. Reddington's memo says probation officials recommended a prison sentence of 27 to 33 months.
The defense attorney also singled out Steven Davis, the brother of a 26-year-old woman who prosecutor say Bulger killed in 1981, as spearheading criticism he says led to a post-plea effort by the government to give his client a long prison sentence. Greig's attorney also filed an objection Monday to a request from the U.S. attorney's office to allow Davis and other family of Bulger's victims to speak at her sentencing. He says they're not victims of Greig's crimes.
Prosecutors have called Greig's conduct the most extreme case of harboring a criminal they've seen. They said she protected Bulger from authorities, for years denying the family of his victims the chance to see him brought to justice. Davis said Monday that a sentence of 27 months "would be the most ridiculous thing to ever come out of federal court."...
Patricia Donahue, the widow of a man who died in a hail of bullets after prosecutors say Bulger opened fire on someone else in 1982, called the defense's request for 27 months in prison for Greig "a joke" that would encourage other people to harbor criminals. Donahue, of Boston, also said she was hoping to speak at Greig's sentencing. "How are we not victims of the crime if she spent 16 years with the man responsible for my husband's death?" Donahue said.
The specifics of this AP article prompt the quote marks in the title of this post, which in turn frame the interesting legal issues now presented by Catherine Greig's sentencing. I can see a good argument for calling the victims of Bulgler's crimes also victims of Greig's crimes of harboring and fraud (and I generally take an expansive view of who has rights under the federal Crime Victims Rights Act). But, especially if one credits Greig's claims that she did not know all about Bulger's homicidal past (and that folks are really most angry about how the feds have handled the Bulger case), I can also see a reasonable argument for limiting how victims of Bulgler's murders get to express themselves at Greig's sentencing.
Even more interesting for hard-core sentencing fans seems to be the distinct dynamic in this case of a defense attorney urging a sentencing judge to follow the guidelines while federal prosecutors seek some form of a departure from the guidelines. As all federal sentencing practitioners know, in nearly all post-Booker cases, the prosecutors are typically defending the guidelines and seeking within-guideline sentences while defense attorneys attack the guidelines as too harsh and seek non-guideline outcomes. But, in this distinctive case, it appears that the defense attorney will be praising the guidelines, while prosecutors (and perhaps also victims) argue that a within-guideline sentence would be unjust and inappropriate.
Previous related post:
- Interesting plea deal calling for high-profile defendant's forfeiture of intellectual property rights
June 11, 2012 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Still more (and still puzzling) crime rate declines reported by FBI
This press release from the FBI, which carries the exciting title "FBI Releases Preliminary Annual Crime Statistics for 2011," includes some truly exciting news about the latest crime rate data:
According to the FBI’s Preliminary Annual Uniform Crime Report released today, the nation experienced a 4.0 percent decrease in the number of violent crimes and a 0.8 percent decline in the number of property crimes in 2011 when compared with data from 2010. The report is based on information the FBI gathered from 14,009 law enforcement agencies that submitted six to 12 comparable months of data for both 2010 and 2011.
Some of the crime-rate specifics are detailed in the graphic reprinted here and via these data snippets:
In 2011, all four of the violent crime offense categories — murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault — declined nationwide when compared with data from 2010. Murder and nonnegligent manslaughter declined 1.9 percent, while forcible rape, robbery, and aggravated assault each declined 4.0 percent.
Violent crime declined in all city groups. Cities with populations of 50,000 to 99,999 saw the largest decrease (5.2 percent) in violent crime. Violent crime decreased 6.6 percent in metropolitan counties and 4.7 percent in nonmetropolitan counties....
Nationally, the property crime offense categories of larceny-theft and motor vehicle theft decreased in 2011 when compared with 2010 data. Motor vehicle theft dropped 3.3 percent, and larceny-theft decreased 0.9 percent. However, burglary offenses increased 0.3 percent.
Three of the nation’s regions had decreases in property crime in 2011 when compared with data from 2010. These offenses declined 1.3 percent in the South, 0.8 percent in the West, and 0.4 percent in the Midwest. However, property crimes increased 0.2 percent in the Northeast....
Arson offenses, which are not included in property crime totals, decreased 5.0 percent nationwide. Arsons declined in all four regions in 2011, with the Northeast experiencing the largest decrease (12.3 percent).
In this notable and astute analysis of these new data, Professor James Alan Fox compares the data for all of 2011 with the FBI data from just the first half of 2011 to conclude that, in fact, "several crime categories showed an increase in the second half of the year, including a 1.9% uptick in murder." Based on this analysis, Fox has this view and advice:
[W]e shouldn't overstate the significance of the trends for the second half of the year; they are as volatile as those for the first half. The late-year increases may say more about low crime levels near the end of 2010 than anything about 2011. The fuller picture remains to be seen.
Whatever the final data show, it would seem that the long-term downturn in crime has slowed, and may even have bottomed out. Crime can’t go down forever, of course. At this juncture, we need to focus on making sure that any increase that does occur is relatively modest.
With rates relatively low, this is not the time to diminish crime fighting efforts. If we naively presume that the crime problem has been solved (as opposed to just controlled for the time being), the crime rate could easily rebound. If we fail to invest sufficiently in crime prevention and crime control — both personnel and programs — we may someday look back at 2011 and consider them the “good old days.”
As regular readers know, I continue to be amazed and puzzled with modern American crime rate trends, especially during a period in which so many Americans (on both the right and the left) seem convinced that the country's political and legal systems are highly dysfunctional. In this important arena, something keep working; whatever that something is, I hope it does not run out of all its still positive momentum anytime soon.
Some related posts on the great modern crime decline:
- Effective Washington Post commentary talks up great (and still puzzling) crime decline
- Amazingly great new FBI data: crime down yet again in start of 2011!
- Still more great news and data on the latest crime rates in the United States
- Remarkable drop in US violent crimes rates in 2010 according to latest BJS data
- Wonderfully puzzling violent crime rate continue to decline (despite NFL lockout)
- Some speculations about the great crime decline in Florida
- 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"
Phony lawyer Howard Kieffer prevails in Tenth Circuit on federal sentencing issues
Howard O. Kieffer is a name familiar to many federal criminal lawyers for a number of different reasons. This start of a new (and very long) Tenth Circuit opinion highlights why:
By all appearances, Defendant Howard Kieffer had a successful nationwide criminal law practice based in Santa Ana, California. Defendant held himself out as Executive Director of Federal Defense Associates, and touted his services through websites, legal conferences, and professional contacts. As early as 1997, Defendant appeared as co-counsel of record in United States v. Olsen, 1997 WL 67730 (9th Cir. 1997) (unpublished). Over the next few years, Defendant gained admission to a slew of federal trial and appellate courts around the country, where he appeared on behalf of numerous criminal defendants. All the while, Defendant had a secret. He is not and never has been an attorney. He never went to law school, never sat for a bar exam, and never received a license to practice law.
Defendant no longer has a secret. In 2009, a jury in the District of North Dakota convicted Defendant of mail fraud, in violation of 18 U.S.C. § 1341, and making false statements, in violation of 18 U.S.C. § 1001. The jury found Defendant gained admission to the District of North Dakota by submitting a materially false application to the court. He then relied on that admission to gain admission to the District of Minnesota, District of Colorado, and Western District of Missouri. Once admitted in those districts, Defendant proceeded to appear on behalf of federal criminal defendants unaware of his true identity. The district court sentenced Defendant to 51 months imprisonment and ordered him to pay $152,750 in restitution to six victims of his scheme. The Eighth Circuit affirmed. United States v. Kieffer, 621 F.3d 825 (8th Cir. 2010).
Defendant’s web of deception continued to unravel in 2010 when a jury in the District of Colorado also convicted him of making false statements in violation of § 1001, in addition to wire fraud, in violation of 18 U.S.C. § 1343, and contempt of court, in violation of 18 U.S.C. § 401. As to the false statements count, the jury found that to gain admission to the District of Colorado, Defendant fraudulently represented to the court clerk’s office that he was licensed to practice law in the District of Columbia. As to the wire fraud count, the jury found Defendant used a website, www.boplaw.com, to promote his unauthorized practice of law and bilk a criminal defendant’s brother out of several thousand dollars. Lastly, as to the contempt count, the jury found Defendant jeopardized the administration of justice by lying to the clerk’s office and purporting to represent that criminal defendant before the district court. The district court sentenced Defendant to 57 months imprisonment to run consecutively to the 51 month sentence previously imposed on him in the District of North Dakota. The court further ordered him to pay restitution in the amount of $152,019 to seven victims of his scheme unaccounted for in North Dakota, and directed him as a special condition of supervised release to obtain the probation office’s preapproval of any proposed employment or business ventures. Defendant now appeals his most recent convictions and sentence. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2). For reasons to follow, we affirm the district court’s judgment of conviction, but vacate its judgment of sentence on the wire fraud and false statements counts, and remand for resentencing.
Judge Posner in fine form discussing federal guidelines' Aggravating Role enhancements
Though the decision by a Seventh Circuit panel today in US v. Figueroa, No. 11-2594 (7th Cir. June 11, 2012) (available here) does not break any new ground, Judge Richard Posner's opinion for the court makes it a must-read. Figueroa is concerned with how to interpret and apply the federal sentencing guidelines' Aggravating Role enhancements, and here is a taste of some of Judge Posner's prose to whet the appetite:
Economy of words is not a defining characteristic of lawyers, including the lawyers who drafted the sentencing guidelines and application notes and the lawyers and judges who have drawn on the seven factors in Application Note 4 to help determine who is a “supervisor.”...
In a tiny enterprise, neither extensive nor “otherwise extensive,” the four roles — organizer, leader, manager, supervisor — are unlikely to be differentiated. There is likely to be one boss, and it doesn’t matter what one calls him. But in a substantial enterprise, organized as substantial enterprises legal or criminal usually are — that is, hierarchically — there will be organizer-leaders (the guidelines do not distinguish between those two designations) and manager-supervisors (again not distinguished, and in fact not distinguishable on any ground that we can relate to sentencing policy) intermediate between the organizer-leaders and the rank and file. Application Note 4 relates only to the organizer-leaders; we cannot see what guidance it provides to determining whether a participant who is neither a boss nor a grunt is a manager or (the same thing, just a different word) a supervisor. When the question is not whether the defendant is a leader or organizer, but instead a manager or supervisor in a hierarchical organization (hence a “middle manager”), there is no need to sweat over the terms “manager” or “supervisor”....
If a judge, a probation officer, a lawyer, even a defendant, doesn’t know what a “manager” or “supervisor” is, Application Note 4 isn’t going to help him — especially since it’s about organizers and leaders and not middle managers and low-level supervisors, as the cases, hungry for text to hang a decision on, are reluctant to acknowledge. So we won’t try the reader’s patience with a trip to the dictionary, where we would find other unhelpful synonyms for “supervisor,” such as one who “oversees,” or unhelpful periphrases such as “to coordinate, direct, and inspect continuously and at first hand [in order] to accomplish” some objective.
SCOTUS gives Sixth Circuit an AEDPA smack-down via per curiam opinion
This morning, I was again expecting (or at least hoping for) some notable criminal justice Supreme Court action this morning as the Justices returned to action. But it appear we must wait at least another week for the three big sentencing issue still pending (reviewed here).
The Justices did give criminal justice fans a little love this morning by granting cert on a new Double Jeopardy Clause case, Evans v. Michigan, which concerns an issue SCOTUSblog describes in this way: "Whether the Double Jeopardy Clause bars retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact."
The Justices also gave the Sixth Circuit a little error-correction smack-down via a sharp per curiam summary reversal in Parker v. Matthews (available here). Here is how the unanimous Parker opinion gets started:
In this habeas case, the United States Court of Appeals for the Sixth Circuit set aside two 29-year-old murder convictions based on the flimsiest of rationales. The court’s decision is a textbook example of what the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) proscribes: “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 12). We therefore grant the petition for certiorari and reverse.
Do death row suicides justify speeding up, or shutting down, California's execution process?
The question in the title of this post is prompted by this new AP article, which is headlined "Death Row suicide highlights executions' delays." Here are excerpts:
When James Lee Crummel hanged himself in his San Quentin Prison cell last month, he had been living on Death Row for almost eight years — and he was still years away from facing the executioner. California's automatic death penalty appeals take so long that the state's 723 condemned inmates are more likely to die of old age and infirmities — or kill themselves — than be put to death.
Since capital punishment was reinstated in 1978, California has executed 13 inmates, and none since 2006. But 20 have committed suicide, including Crummel, who abducted, sexually abused and killed a 13-year-old boy on his way to school in 1979. Another 57 inmates have died of natural causes. The ponderous pace of this process has helped make the state's death row the most populous in the nation, and it has generated critics from all quarters.
Victim rights groups say the delays amount to justice denied. Death penalty opponents say the process, like execution itself, amounts to cruel and unusual punishment. And now the state's voters will get an opportunity this November to vote on a measure that would abolish the death penalty, which critics deride as an inefficient and expensive system for a financially troubled state.
It took the Supreme Court four years to appoint Crummel a public defender, and it took his attorney almost that long to file his opening brief after several time extensions. Crummel's appeal was expected to consume a few more years before the high court decided the case.
While most condemned inmates welcome legal delays, even those seeking a speedy resolution are stymied. Scott Peterson, who was sentenced to death seven years ago for murdering his pregnant wife Laci, is attempting to get his case before the Supreme Court as soon as possible, because he says he was wrongly convicted. Peterson's parents hired a top-notch private appellate lawyer after sentencing, while other Death Row inmates wait an average of five years each for appointment of taxpayer-funded public defenders....
Despite the growing backlog, district attorneys continue to send murderers to death row. Five new inmates have arrived this year, and several more are expected, including Los Angeles gang member 24-year-old Pedro Espinoza who was convicted of shooting to death a high school football player. A jury recommended death for Espinoza, and a judge is scheduled formally sentence him in September.
Meantime, Los Angeles County District Attorney Steve Cooley is attempting to immediately resume executions of two longtime Death Row inmates Mitchell Carleton Sims, 52, and Tiequon Aundray Cox, 46, who have exhausted all of their appeals. Sims has been on Death Row since 1987, Cox since 1986. "It is time Sims and Cox pay for their crimes," said Cooley, who is asking that the inmates be executed with a single drug rather than the three-drug lethal cocktail now being challenged in federal and state courts. The California District Attorneys Association is backing Cooley's attempt to resume executions.
June 10, 2012
"Efforts to Relax Pot Rules Gaining Momentum in US"
The title of this post is the headline of this new AP article, which includes these excerpts:
Once consigned to the political fringe, marijuana policy is appearing on legislative agendas around the country thanks to an energized base of supporters and an increasingly open-minded public. Lawmakers from Rhode Island to Colorado are mulling medical marijuana programs, pot dispensaries, decriminalization and even legalization. Seventeen states and the District of Columbia now authorize medical marijuana and 14, including neighboring Connecticut and Massachusetts, have rolled back criminal penalties for possession of small amounts of pot.
Rhode Island is poised to become the 15th state to decriminalize marijuana possession. The state's General Assembly passed legislation last week that would eliminate the threat of big fines or even jail time for the possession of an ounce or less of pot. Instead, adults caught with small amounts of marijuana would face a $150 civil fine. Police would confiscate the marijuana, but the incident would not appear on a person's criminal record. Minors caught with pot would also have to complete a drug awareness program and community service....
Some supporters of decriminalization say they'd like to go even further. "America's 50-year war on drugs has been an abysmal failure," said Rep. John Savage, a retired school principal from East Providence. "Marijuana in this country should be legalized. It should be sold and taxed."
Opponents warned of dire consequences to the new policy. "What kind of message are we sending to our youth? We are more worried about soda — for health reasons — than we are about marijuana," said one opponent, Rhode Island state Rep. John Carnevale a Democrat from Providence....
Medical marijuana helped bring marijuana policy into the mainstream back in 1996, when California became the first state to authorize the use of cannabis for medicinal use. Other states followed suit. "It's now politically viable to talk about these things," said Robert Capecchi, legislative analyst with the Marijuana Policy Project, a Washington, D.C.-based group that supports the reduction or elimination of penalties for medical and recreational pot use. "The public understands that there are substances that are far more harmful — alcohol, tobacco — that we regulate. People are realizing just how much money is being wasted on prohibition."
Colorado and Washington state will hold fall referendums on legalizing marijuana. A ballot question on legalization failed in California in 2010. This month, Connecticut's governor signed legislation to allow medical marijuana there. Last week, New York Gov. Andrew Cuomo proposed cutting the penalty for public possession of small amounts of pot....
Robert DuPont, who served as the nation's drug czar under presidents Richard Nixon and Gerald Ford, said Americans should be wary of a slippery slope to legalization. While marijuana may not cause the life-threatening problems associated with heroin, cocaine or methamphetamine, it's far from harmless. "It is a major drug of abuse," he said. "People ask me what the most dangerous drug is, and I say marijuana. Other drugs have serious consequences that are easy to recognize. Marijuana saps people's motivation, their direction. It's a drug that makes people stupid and lazy. That's in a way more dangerous."
"Clemency in a Time of Crisis"
The title of this post is the title of this new paper available via SSRN authored by Professor Cara Drinan. Here is the abstract:
At the state level, the power to pardon or commute a criminal sentence — that is, to grant clemency — is vested in either the Governor, an executive clemency board, or some combination thereof. Until very recently, clemency grants were a consistent feature of our criminal justice system. In the last four decades, though, state clemency grants have declined significantly; in some states, clemency seems to have disappeared altogether.
In this Article, I contend that executive clemency should be revived at the state level in response to ongoing systemic criminal justice failings. Part I of this Article describes clemency at the state level today. Despite judicial and scholarly support for the role of clemency in our criminal justice system, state clemency practice fails to live up to its theoretical justifications. Part II of this Article makes the case for a policy of vigorous clemency on both theoretical and practical grounds. Not only was clemency designed, at least in part, to serve an error-correcting function, but also, today, there are several reasons why state executive actors may be able to use their clemency power robustly without suffering politically. In Part III, I address questions of implementation. If state executive actors are to pursue commutations of sentences or pardons, which inmates should be the subject of such pursuits? How can those executive actors best be insulated from political pressure? In sum, this Article argues that revitalizing state clemency is a valuable and viable component of broader criminal justice reform.
Golden anniversary of the greatest escape from the greatest prison
This morning's New York Times has this new article discussing an old mystery still surrounding a long-closed (but still justifiably famous) federal prison. The piece is headlined "Tale of 3 Inmates Who Vanished From Alcatraz Maintains Intrigue 50 Years Later," and here is how it begins:
Fifty years ago, on the night of June 11, 1962, the three convicts were locked down as usual. Guards walking the tier outside their cells saw them at 9:30 and checked on them periodically all night, looking in at the sleeping faces, hearing nothing strange. But by morning, the inmates had vanished, Houdini-like.
Guards found pillows under the bedclothes and lifelike papier-mâché heads with real hair and closed, painted eyes. Federal agents, state and local police officers, Coast Guard boats and military helicopters joined the largest manhunt since the Lindbergh baby kidnapping in 1932, scouring the prison complex on Alcatraz Island, the expanse of San Francisco Bay and the surrounding landscape of Northern California.
A crude raft made of rubber raincoats was found on a nearby island. But the fugitives were never seen again. Federal officials said they almost certainly drowned in the maelstrom of riptides, undertows and turbulent, frigid waters of the 10-mile-wide bay, their bodies probably swept out to sea under the Golden Gate Bridge.
But for aficionados of unsolved mysteries, the fantasy that Frank Lee Morris and the brothers Clarence and John Anglin had successfully escaped from the nation’s most forbidding maximum security prison and are still alive, hiding somewhere, has been a tantalizing if remote possibility for a half-century now.
It seemed wildly improbable. “The Rock” where Al Capone, Machine Gun Kelly and other infamous criminals were held was thought to be escape-proof. In its 29 years as a federal prison, from 1934 to 1963, no one is known to have made it out alive. Forty-one inmates tried. Of those, 26 were recaptured, 7 were shot dead, 3 drowned and 2 besides Mr. Morris and the Anglin brothers were never found.
Had they survived, the three men — all bank robbers serving long terms — would be in their 80s now. And while their names are all but forgotten, their breakout has been a subject of fascination to many Americans, analyzed in countless articles, four television documentaries, a 1963 book by J. Campbell Bruce, “Escape from Alcatraz,” and a 1979 movie of the same name starring Clint Eastwood as Mr. Morris.