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June 30, 2012

Will Lauryn Hill raise novel 3553(a) issues at her tax evasion sentencing?

HillThe question in the title of this post is prompted by this AP report, headlined "Lauryn Hill Tax Charges: Singer Pleads Guilty In NJ, Faces Jail Time."  Here are excerpts:

Eight-time Grammy-winning singer Lauryn Hill pleaded guilty Friday to not paying federal taxes on more than $1.5 million earned over three years.  Appearing in U.S. District Court in Newark, Hill admitted failing to file tax returns from 2005 to 2007.  She faces a maximum one-year sentence on each of the three counts. She was charged three weeks ago.

Dressed in a dark jacket, white button-up shirt and a long reddish-orange skirt, Hill declined to comment after Friday's hearing.  During the hearing, attorney Nathan Hochman indicated that Hill planned to pay back the taxes she owes. U.S. Magistrate Michael Shipp initially scheduled sentencing for early October but agreed to delay it until late November to give Hill time to make repayment....

After the charges were brought, Hill posted a long statement on her Tumblr page that decried pop culture's "climate of hostility, false entitlement, manipulation, racial prejudice, sexism and ageism."  She explained that she hasn't paid taxes since she withdrew from society to guarantee the safety and well-being of herself and her family.

Hill hinted Friday that she might expand on those comments at her sentencing. When Shipp asked her if anyone had directly or indirectly influenced her decision to plead guilty, she replied, "Indirectly, I've been advised my ability to speak out directly is for another time, at sentencing."

I look very much forward to seeing how Hill and her lawyers might be able to incorporate the faults of pop culture and its "climate of hostility, false entitlement, manipulation, racial prejudice, sexism and ageism" into an argument via 3553(a) that a low sentence would be sufficient to avoid the miseducation of Lauryn Hill.

June 30, 2012 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (8) | TrackBack

Did (white-collar?) arsonist poison himself in courtroom right after hearing verdict and sentence?

The main question in thie title of this post present the interesting mystery in reported in this Huffington Post piece, which is headlined "Michael Marin, Ex-Wall Street Trader, Dies In Courtroom After Conviction." Here are the details:

An ex-Wall Street trader collapsed and died in a Phoenix-area courtroom Thursday, shortly after being found guilty of setting his mansion on fire in a ploy to escape his mortgage debt.

Police are now investigating whether the man, Michael Marin, purposefully killed himself. Shortly after the jury read its verdict and sentenced him to 16 years in prison, Marin appeared to place something in his mouth several times and drink from a bottle he brought with him into the courtroom. Minutes later, he suffered from a seizure and died. Police can't yet confirm whether Marin’s death was a suicide.

Marin’s mansion in a ritzy Phoenix neighborhood caught fire in 2009, the Arizona Republic reports. Marin claimed he had to escape from the house wearing a scuba tank and mask to protect himself from the smoke, but investigators found evidence that he set the fire himself. Though he had grown accustomed to a lifestyle that reportedly included owning Picasso sketches and $800 climbing boots, Marin’s financial situation grew dire the year before the fire. His bank account balance fell to only $50 from $900,000 even while he had a monthly mortgage payment of more than $17,000, according to the Arizona Republic.

In addition to the interesting possibility that the defendant here decided to sentence himself to death rather than go to state prison, I have also flagged this story because I wonder just how we ought to characterized Marin's crime of arson.  Is this crime properly called vioent or non-violent?  Is it a white-collar offense?  A property offense or a fraud offense? One of the many challenges of studying crime and sentencing data is trying to fully understand what gets placed into which data catergories, and this kind of case reinforces my persistent concern than many crimes defy easy categorization.

June 30, 2012 in Data on sentencing, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Criticism of Justice Alito's one-size-fits-all dissent in Miller

As regular readers know and as previously explained here, in a series of posts I am taking on a claim at the heart of each dissenting opinion to the Supreme Court's new Eighth Amendment SCOTUS Miller ruling (opinion here, basics here).  In the first post here, I questioned number-crunching in the Roberts/textualism dissent.  In this second post here, I questioned claims about LWOP as a method of punishment in the Thomas/originalism dissent. 

Coming soon will be my final post in ths series in which I examine a key claim in Justice Alito's dissent.  But, before I that post is finished, I see that Wendy Kaminar has this potent criticism in The Atlantic of Justice Alito's work in Miller which carries this sub-headlined: "Conservatives are supposed to embrace individualism. So why did the Court's conservative wing defend a one-size-fits-all approach to juvenile justice?"  Here are snippets from the piece:

Individualized justice is supposed to be a conservative ideal. Liberals are supposed to embrace collectivism, while conservatives promote individualism and oppose regulatory schemes, like affirmative action, which treat people categorically as fungible members of groups. A collective or categorical approach to law is, from this perspective, an assault on liberty and the integrity of the individual -- except when it's not....

Justice Alito objected strongly to this individualized approach to sentencing. The "category of murderers" under 18 consists mostly of older teenagers who engage in "brutal thrill-killing," Alito declared in dissent. The offenders in the cases before the Court in Miller were "very young"; they were "anamolies," for whom it was "hard not to feel sympathy," he acknowledged. But if some members of the juvenile murderer category are atypical and inappropriate candidates for LWOP, that, Alito suggested, is their misfortune. In his view, 8th Amendment strictures against cruel and unusual punishment do not bar states from imposing excessively harsh sentences on a few juveniles who may not deserve them in order to facilitate their imposition on many teenagers who do.

"No one should be confused by the particulars of the two cases before us," Alito admonished, in a remarkable rejection of individualized justice when it arguably matters most, in the imposition of criminal sentences. Should Alito ever be arrested, I imagine he'll expect and demand to be treated as an individual -- not as a Catholic, or an Italian-American of a certain age, or a member of a conservative Supreme Court bloc, who might be sentenced for the sins of Justice Scalia (whatever they may be). I suspect he'll want to be treated as Samuel Alito, a particular person alleged to have committed a particular crime. Should he ever be arrested, Justice Alito will probably want police, prosecutors, jurors and judges to pay close attention to his particulars, which I doubt he'll condemn as "confusing."

Particularized, individualized justice is precisely what mandatory sentences deny. The Court has declined to strike them down under the 8th Amendment in cases involving adults, although they often dictate excessively, disproportionately harsh sentences, and their role in filling our prisons with non-violent drug offenders is a decades old scandal. Long promoted as a means of eliminated discretion in sentencing, mandatory minimums merely transfer discretion from judges to prosecutors. They ensure that prosecutors decide how defendants will be sentenced when they choose the crimes with which defendants will be charged.  In juvenile cases, prosecutors may sometimes choose lengthy, mandatory sentences when they choose to transfer juveniles to adult court.

Now, under Miller, prosecutors may still transfer juvenile homicide suspects, who may still face LWOP for "brutal thrill-killings."  But their sentences will no longer be determined by generally unaccountable prosecutors or by the crimes of other juveniles in their "category." This is not an obscure principle, difficult to comprehend.  Juvenile offenders are individuals too, not interchangeable members of a class.

Amen!

Some related Miller posts:

June 30, 2012 in Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

June 29, 2012

"Jerry Sandusky Could Get Pension in Prison Unless Bill Passes"

The title of this post is the headline of this ABC News story, which gets started this way:

Former Penn State football coach Jerry Sandusky will likely receive his $58,898-a-year state pension while in prison, unless a bill stalled in Pennsylvania's senate finance committee is quickly passed by the legislature and signed by the governor.

The bill would prevent employees convicted of sexual offenses related to their jobs from receiving their state pensions, said Cameron Kline, a spokesperson for State Sen. Larry Farnese, D-Philadelphia, who introduced the bill before Sandusky was charged with sexually abusing boys in his Second Mile program.

"This was introduced on Oct. 18, 2011, well before Sandusky's crimes came to light," Kline said. "It's something we think would be very appropriate for a case such as this. Now that it's over, we're a little concerned, confused and angry it's still stuck there. Apparently it's not a priority so the legislation still stays in committee."

Under current law, the pensions of public employees can be seized when a member is convicted of an Act 140 crime. That act includes crimes such as extortion, perjury and bribery but does not include sexual abuse, according to the Pennsylvania State Employees Retirement System website.

Pam Phile, spokesperson for the Pennsylvania State Employees Retirement System, said she could not speculate on whether Sandusky will have to forfeit his pension under the existing law, which was passed in 1978. "SERS reviews the sentencing documents in reaching a forfeiture determination and there has been no sentencing yet in this particular case," Phile said.

Kline said there are potentially other ways Sandusky could be stripped of his pension, but said passing a law at the state level would probably be the most logical. "There could be things at the Penn State level," he said. "[But] I really think it has to be a state law issue. This is the only thing that is at the ready to move. To my knowledge this is the best option."

June 29, 2012 in Celebrity sentencings, Collateral consequences, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

NC Gov Perdue again vetoes effort by legislature to reform state's Racial Justice Act

As reported in this new AP piece, "Gov. Bev Perdue on Thursday vetoed legislation that rolls back a landmark state law that allows death-row inmates to argue that their sentence resulted from racial bias." Here is more:

"As long as I am governor, I will fight to make sure the death penalty stays on the books in North Carolina. But it has to be carried out fairly — free of prejudice," Perdue said in a statement.

The Republican-controlled legislature passed the bill by margins that would appear to be enough for an override of Perdue's veto. Legislative leaders said they would try to push the legislation into law over Perdue's effort to block it.

"While Governor Perdue may claim to support the death penalty, her veto proves she's in lock-step with the leftist elements of her party who want to abolish it," Senate leader Phil Berger, R-Rockingham, and House Speaker Thom Tillis, R-Mecklenburg, said. "We will work with both sides of the aisle to override yet another irresponsible gubernatorial veto."

The existing state law allows judges to consider statistical analysis of cases showing race must have been a factor in prosecution decisions, even if no one testifies bias played a role in a specific case. Republicans who took over the General Assembly last year have sought to void or weaken the law passed in 2009, when Democrats controlled the legislature.

The law Perdue vetoed would allow convicts to offer statistics they think prove racial bias from a time span 10 years before a slaying and two years after they are sentenced. There is currently no time limit. The bill also says statistics alone cannot prove race was a significant factor in a death-row inmate's conviction or sentence. Statistics also would be limited to the conduct of prosecutors near where the murder occurred, rather than anywhere in the entire state as the current law allows.

The state's district attorneys sought the changes after saying that the Racial Justice Act clogged the court system and delayed the carrying out of capital punishment. Nearly all the 150-plus inmates on North Carolina's death row filed for reviews under the law, including white defendants convicted of killing white victims.

Opponents say the changes gut the intent of the law, which was removing racial discrimination from the criminal justice system and ensuring fairness in carrying out capital punishment.

In the first case under the law, Cumberland County Superior Court Judge Greg Weeks ruled in April that condemned killer Marcus Robinson's 1991 trial was so tainted by the racially influenced decisions of prosecutors that he should be removed from death row. Prosecutors plan to appeal the sentencing decision.

I am not surprised by the repeat veto, and it will be interesting to see if the NC legislature can keep the votes together for an override.  And, in light of Gov Perdue's strong veto statement (which can be accessed in full here), I wonder if she might end up commuting a lot of death sentences if/when the NC legislature succeeds in its override effort.

June 29, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

June 28, 2012

The cites to and echoes of Booker in today's SCOTUS health care ruling

In the comments to this prior post, DEJ makes this observation: "After holding the Medicaid expansion unconstitutional, the Court had to decide the remedy for violating the Spending Clause: Must the entire expansion fall or does it remain in some form?   And how, exactly, did the plurality come to its remedy? By looking to the Booker remedy opinion: "In considering that question, '[w]e seek to determine what Congress would have intended in light of the Court’s constitutional holding.' United States v. Booker, 543 U. S. 220, 246 (2005)."   Booker is twice cited by the plurality to support its remedy."

In addition, a thoughtful law grad from my alma mater, Rajiv Mohan, sent me this e-mail to not "how similar [the ACA ruling] is to Booker":

In both cases, legislative innovations -- if not limited -- threatened deeply-held constitutional principles: the right to trial by jury on the one hand, and enumerated powers on the other.

In both cases, the proposed limiting principle is oddly formalistic and susceptible to legislative circumvention. The Apprendi principle, after all, could be circumvented by advisory guidelines that give no role to the jury. And even with a ban on mandates under the Commerce Clause, Congress could achieve the same effect through the tax power.

And in both cases, a majority of the Court accepts the limiting principle, only for one Justice to back away from its seemingly natural consequences by pragmatically imputing to Congress a will to do what it no doubt could have done, in the face of considerable doubt that it actually did.

In a similar vein, public defender David Hemmingway sent me an e-mail to report his "whimsical notion" that the Booker remedy played a role in the ACA litigation outcome, which includes these observation:

This morning as SCOTUSblog was reporting that the individual mandate survived at the very same time that CNN & Fox loudly proclaimed that the Court had struck it down, [a lawyer in] our office recalled that overcast January day in 2005 when the Court issued Booker: everyone was reading it and scratching their head. In the ensuing seven years, CJ Roberts along with Justices Sotomayor and finally Justice Kagan have embraced it (as confirmed by last week's decision in Southern Union that the Apprendi right to jury fact finding also applies to criminal fines).

So maybe seven years of life with the Booker remedy -- which still stands in tension with both the Sixth Amendment violation that prompted it and the Congressional intent to reduce judicial discretion under the Sentencing Reform Act -- helped make it possible or easier for Roberts to join two conflicting majorities and uphold the ACA. At this time, on this planet, there are times when the best one can hope for requires that we live in a contradiction.

June 28, 2012 in Booker and Fanfan Commentary, Who Sentences? | Permalink | Comments (8) | TrackBack

Second Circuit panel now affirms Lynne Stewart's (way below guideline) 10-year prison sentence

One of many noteworthy legal developments today sure to be overshadowed by the Supreme Court's health care ruling is today's Second Circuit panel opinion upholding the 10-year prison sentence of (in)famous defense lawyer Lynne Stewart.  The lengthy unanimous opinion in US v. Stewart, No. 10-3185 (2d Cir. June 28, 2012) (available here), covers a lot of interesting sentencing ground, though the most extensive discussion concerns Stewart's claim that enhancement of her sentence due to her initial post-sentencing public comments violated the First Amendment.   Here are a few paragraphs from the start and end of the panel ruling:

Appellant Lynne Stewart appeals from a judgment of the United States District Court for the Southern District of New York (John G. Koeltl, Judge) sentencing her principally to 120 months' imprisonment following our vacatur on grounds of procedural error of her previous sentence of 28 months and remand of the district court's previous judgment insofar as it imposed that sentence. The details of this case were recounted at length in our prior opinion, United States v. Stewart, 590 F.3d 93, 100-08 (2d Cir. 2009) ("Stewart I"). We repeat them here only insofar as we think it necessary to explain our judgment [of affirmance]....

Finally, Stewart argues that her sentence is substantively unreasonable, principally because of the more than fourfold increase from her original sentence of 28 months' incarceration to the currently imposed sentence of 120 months.  She asserts that aside from her public statements, "no change in circumstances or information available to the sentencing court . . . supported increasing Ms. Stewart's sentence by this magnitude." Def.'s Br. at 101.  She also contends that the district court was not permitted to increase the sentence in response to suggestions that it do so in the dissent from our panel opinion, and in the dissents accompanying the denial of rehearing en banc.  Def.'s Br. at 103.  And she urges that in light of her personal characteristics, the sentence imposed on her was so "shockingly high" as to render it substantively unreasonable....

It is the "rare case" in which we will find a sentence substantively unreasonable, and we place "great trust" in a sentencing court.  Rigas, 583 F.3d at 123.  In Stewart I, we expressly recognized and were "impressed by the factors that figured in Stewart's modest sentence -- particularly her admirable history of providing, at no little personal cost to herself, proficient legal services in difficult cases to those who could not otherwise afford them."  Stewart I, 590 F.3d at 147-48.  But, nonetheless, she engaged in severe criminal conduct in aid of a terrorism conspiracy, and she did so by abusing the trust that the government had placed in her as a member of the bar.  When confronted with these transgressions, she lied repeatedly under oath.

From the moment she committed the first act for which she was convicted, through her trial, sentencing, and appeals, Stewart has persisted in exhibiting what seems to be a stark inability to understand the seriousness of her crimes, the breadth and depth of the danger in which they placed the lives and safety of unknown innocents, and the extent to which they constituted an abuse of her trust and privilege as a member of the bar.  We cannot agree with her that the sentence imposed on her was "shockingly high" so as to warrant a finding of substantive unreasonableness.

June 28, 2012 in Booker in the Circuits, Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (6) | TrackBack

Early SCOTUSblog report on ACA ruling: "It's very complicated"

I am very much enjoying this morning watching SCOTUSblog and Fox News trying to figure out what the heck is going on.

Here is Tom Goldstein's first-cut assessment: "The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read.... Chief Justice Roberts' vote saved the ACA."

Amy Howe adds: "The money quote from the section on the mandate: 'Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.' "

Notable early summary of Fox News spin: Chief Justice John Roberts: George W. Bush = Justice David Souter: George H.W. Bush

June 28, 2012 in Who Sentences? | Permalink | Comments (41) | TrackBack

SCOTUS strikes down Stolen Valor Act, 6-3, finding First Amendment problem

Reporting here on SCOTUSblog reporting on what its reporter Lyle Denniston is reporting from the Supreme Court this morning:

In Alvarez, the Ninth Circuit is affirmed. Per Kennedy. His opinion is for a plurality. The statute violates the First Amendment. Breyer and Kagan concur and conclude that the Act as presently drafted fails First Amendment scrutiny. So Congress probably could rewrite it.

"Lying was his habit" is how the opinion begins.

Alito, Scalia, and Thomas dissent.

So the upshot is that this version of the Stolen Valor Act is unconstitutional, but Congress may be able to do a new law.

The full opinion in Alvarez is now available at this link.

June 28, 2012 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

"Agent who started ‘Fast and Furious’ defends gunrunning operation"

The inter-branch sparring in the long-running brouhaha over the "Fast and Furious" gun operation has always seemed much more a political story than a criminal justice one.  Still, the enduring controversy surely has had significant federal criminal justice implications, at least by severly impacting relationship(s) between current members of Congress and the current Justice Department.  As the full House of Representative considers a vote to hold Attorney General Eric Holder in contempt based on a failure to provide full information about discussions of the operation, I wondered if reader have views concerning any potential (good or bad) long-term criminal justice implications of this scandal.  This Washington Post article, which shares the headline of this post, seems like a good prompt for urging F&F discussion to be more focused on criminal justice issues that political one.  Here is how the WaPo piece starts:

The “Fast and Furious” gun-tracking operation has been widely condemned by Republicans, Democrats and even top officials at the Justice Department as a failed sting. The case has led to the ouster of the U.S. attorney in Phoenix, President Obama’s first use of executive privilege and a probable vote of contempt Thursday against the attorney general.

But in the eyes of the man who started and oversaw Fast and ­Furious, the operation remains an example of smart law enforcement — an approach that has simply been misunderstood. “It was the only way to dismantle an entire firearms-trafficking ring and stop the thousands of guns flowing to Mexico,” said William D. Newell, a veteran federal agent who spent five years as the head of the Bureau of Alcohol, Tobacco, Firearms and Explosives in Phoenix.

In his first public interview about the operation, Newell said he believed that he and his agents were working the largest gun-trafficking case of their careers and finally had a window into Mexico’s powerful Sinaloa cartel.  To identify cartel members, ATF agents, beginning in 2009, watched as about 2,000 weapons purchased at Phoenix gun stores hit the streets; their goal was to trace them to the cartel.

But on Dec. 14, 2010, Operation Fast and Furious came crashing down. A Border Patrol agent was killed in the Arizona desert, and two AK-47s found at the scene were linked to Newell’s sting.  Agents working under him, enraged, went to lawmakers about the operation, sparking an 18-month investigation led by Rep. Darrell Issa (R-Calif.), who called Fast and Furious “felony stupid.”

Ever the optimist, I am hopeful the long-term impact of the F&F controversy will be a greater disinclination by federal (and state?) officials and prosecutors to imagine and engineer criminal justice stings that might end up looking "felony stupid."  But I fear that I may just be looking too hard for a silver lining in this otherwise dark criminal justice cloud.

Related post:

June 28, 2012 in Gun policy and sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

What is the real national sentencing "mood" in our new era of budget-cut reforms?

The question in the title of this post is prompted in part by what seems to be a somewhat muted political reaction to the Supreme Court's Eighth Amendment decision in Miller, and in part by this effective new article at The Crime Report.  The piece is headlined "Rethinking ‘Tough on Crime’," and it has a particular focus on this November's ballot initiative in California to reform that state's broad three-strikes law.  Here are excerpts:

[S]everal thousand prisoners ... could be eligible to petition for early release if California voters this November pass a proposed initiative to reform the state’s three-strikes law, the toughest in the country.  The proposed law would reserve 25-to-life sentences mostly to those who commit serious or violent crimes on their third offense.  It would also allow some current inmates, who committed a third strike that was not violent or serious, to petition for early release.

California is not alone.  States across the country are revisiting three-strikes laws and other tough mandatory minimum sentencing laws, particularly for low-level drug crimes.  Of the 24 states that passed three-strikes laws in the early 1990s, at least 16 have since modified them to give judges more discretion in sentencing or narrow the types of crimes that count as a “strike,” according to the National Conference of State Legislatures (NCSL).  At least 14 states in recent years also either eliminated mandatory minimum sentencing for low-level drug offenders, or gave judges more discretion to consider alternatives to incarceration, according to the NCSL.

The U.S. Sentencing Commission in October 2011 also recommended changes to federal mandatory minimum sentencing laws, saying that some penalties “apply too broadly, are set too high,” and are applied inconsistently across the country.

“Compared to the ‘80s and ‘90s when the push was to adopt more mandatory sentencing policies, the tide is beginning to move in the other direction,” said Marc Mauer, the director of The Sentencing Project.  “We’re seeing a better climate for sentencing and corrections reform.”

The changes are part of a broader rethinking of many of the “tough on crime” sentencing policies that dominated the country for decades.  Driven largely by the flagging economy, states have embraced a variety of reforms to rein in the cost of high prison populations, including diverting low-level drug offenders into treatment; reforming the parole system; and granting early release to certain inmates....

Though criminal justice reform was once thought of as a purely liberal issue, many of the most dramatic changes have come in traditionally conservative states, such as Texas, South Carolina, and Georgia, which have passed comprehensive reform packages.

Louisiana, which has the highest incarceration rate in the country, recently gave prosecutors and judges sentencing discretion for some crimes that normally carry mandatory minimum penalties and will allow early release for some non-violent offenders sentenced to life without parole.  Prominent conservatives, such as former House Speaker Newt Gingrich and former Attorney General Edwin Meese, have also spoken out in favor of reform, including eliminating mandatory minimum sentences for non-violent offenses.

Rather than a wholesale rejection of long prison terms, though, many of the mandatory minimum and repeat offender sentencing changes are refining laws to reserve the harshest punishment for violent or repeat criminals....

Not every state is moving towards sentencing reform.  In Florida, which has a three-strikes law and a mandatory sentencing scheme for gun crimes, Gov. Rick Scott earlier this year vetoed a bill that would have diverted some nonviolent drug offenders into treatment.  The legislature in Massachusetts is also considering enacting a new three-strikes law.

And, other than reevaluating mandatory sentences for drug crimes, most states still favor long prison terms, said Barry Krisberg, Director of Research and Policy at the Chief Justice Earl Warren Institute on Law and Social Policy at the University of California, Berkeley School of Law. “No one wants to fundamentally change sentencing laws, so we’re not,” he said. “We’re just working around them.”

June 28, 2012 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

June 27, 2012

Will some (many?) juve murderers taken off death row by Roper now also get the benefit of Miller?

I keep thinking about the roughly 2000+ juvenile murderers now in US prisons whose LWOP sentences have been thrown into constitutional doubt by the Supreme Court's Miller Eighth Amendment ruling.  I am sure it will be fascinating (and will be discussed a lot on this blog) just whether, when and how many of these defendants benefit from the Miller decision.  (Many of these defendants, as this March 2012 report from The Sentencing Project highlights on page 7, are in their 40s having already served decades in prisons and a few are actually senior citizens.)

As the question in the title of this post reveals, one especially notable subset of juvenile murderers came to mind for me today: the roughly six dozen juvenile murderers who had been sentenced to death and were on death row in 2005 when the Supreme Court in Roper declared juvenile murderers categorically ineligible for the sentence of death.  The Death Penalty Information Center has this webpage providing this overview of the juve murderers who were on death row at the time of Roper:

As of December 31, 2004, 71 persons were on death row for juvenile crimes.... Although all were ages 16 or 17 at the time of their crimes, their current ages range from 18 to 43. They were under death sentences in 12 different states and had been on death row from 4 months to 24 years. Texas had by far the largest death row for juvenile offenders, holding 29 (40%) of the national total....

All of the juvenile offenders who were on death row are male... Over three-quarters of these cases involved 17 year old offenders, and two-thirds of them were offenders of color. In contrast, 81% of the victims were adults. Over two-thirds of the victims are white, and half are females.

The DPIC's case summaries of all the juve capital defendants and their crimes does not include any information about when or how these defendants were resentenced after Roper.  For a variety of reasons, I doubt that all these juvenile murderers who got off death row due to Roper were given mandatory LWOP sentences.  But I also would guess that some were, and thus wonder if some of these defendants might get (another) resentencing after Miller and perhaps now get even a lower sentence. 

Recent posts on Miller ruling and its potential impact:

UPDATE:  I have just seen this AP article from Mississippi discussing this group of offenders and a state-based claim that once-capital defendants do not get now the benefit of Miller:

Mississippi corrections officials initially said 56 inmates were in custody who were sentenced when they were 18 or younger, but said Tuesday some inmates had multiple counts and the actual number is 46 serving capital murder sentences.

"It is our position that it will not affect those capital murder cases where the death penalty was sought and the jury returned a sentence of life without parole," Hood said in a statement Tuesday. "This is because the jury at that separate sentencing hearing took into consideration those factors that the United States Supreme Court held must be considered before a life without parole sentence can be imposed.

In cases that are pending on direct appeal, where a life without parole sentence was imposed, Hood said his office will file a motion for resentencing based on the Supreme Court ruling. "Where juvenile defendants who were previously sentenced to life without parole and their sentences have already been affirmed, we expect they will file a motion for post-conviction relief based on this intervening decision," Hood said.

At any resentencing, Hood said the trial judge "may consider those factors identified by the Supreme Court and then may resentence them to life without parole or life, which means that they will be eligible for parole at age 65." 

June 27, 2012 in Assessing Miller and its aftermath, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

Eighth Circuit upholds six-month sentence increase after defendant smiled at sentencing

Though it is sometimes said that a smile is worth a thousand words, in a US district court a smile can apparently sometimes be worth an extra six months in federal prison.  This remarkable reality is demonstrated by the an Eighth Circuit panel ruling today in US v. White Twin, No. 11-3206 (8th Cir. June 27, 2012) (available here), which concludes with these two paragraphs:

White Twin claims that the district court abused its discretion by considering an improper factor – his smile.  This court reviews the substantive reasonableness of a sentence for abuse of discretion.  United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).  A district court abuses its discretion when it “gives significant weight to an improper or irrelevant factor” in sentencing.  United States v. Williams, 624 F.3d 889, 896-97 (8th Cir. 2010).

The district court did not abuse its discretion by increasing White Twin’s sentence by six months after he smiled.  The court was uniquely situated to observe his demeanor, and personally charged with reviewing the § 3553(a) factors.  District courts have wide discretion in determining a fair and just sentence.  See United States v. Gant, 663 F.3d 1023, 1029-30 (8th Cir. 2011).  A district court may consider a defendant’s attitude and demeanor when exercising its sentencing discretion.  See United States v. Robinson, 662 F.3d 1028, 1033 (8th Cir. 2011).  Congress has provided that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661.  The district court based its increase in the sentence not solely on the smile, but a combination of it and other factors.  The district court did not abuse its discretion in considering White Twin’s smile.

June 27, 2012 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

"Madoff's Brother to Plead Guilty to Criminal Charges"

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

The brother of convicted Ponzi scheme operator Bernard Madoff will plead guilty to criminal charges Friday, marking the first time a family member has admitted guilt aside from Mr. Madoff himself since the fraud came to light 3½ years ago.

Peter Madoff, who worked as the Madoff firm's chief compliance officer and senior managing director, is expected to plead guilty to two charges at a hearing Friday, including falsifying the records of an investment adviser and conspiracy to commit securities fraud and other crimes.

As part of an agreement with prosecutors, Peter Madoff has agreed to a sentence of 10 years in prison, prosecutors said in a letter to U.S. District Judge Laura Taylor Swain, which was filed on Wednesday.  He also has agreed to forfeit about $143.1 billion, prosecutors said.

I trust I will not be the only one who wonders about and sees the irony in a mega-fraudster like Peter Madoff, thanks to the exercise of prosecutorial charging/sentencing discretion, is now apparently going be serving just 10 years in federal prison (actually, probably less than 9 years given good-time credits) while many low-level federal crack offenders are still serving their second or third decade of federal prison time because a federal judge lacked any sentencing discretion to impose a lower sentence deacdes ago under then-applicable mandatory minimums and/or then-binding mandatory guidelines.

June 27, 2012 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Questioning forceful (but suspect) claims by the varied Miller dissents: the Thomas/originalism methods

As previously explained here, in a series of posts I am trying to explain briefly what I see as a suspect judgment or assertion or conclusion at the heart of each dissenting opinion to the Supreme Court's new Eighth Amendment SCOTUS Miller ruling (opinion here, basic questions here and here and here).  In the first post here, I questioned number-crunching in the Roberts/textualism dissent.  In this second post now, I question claims about LWOP as a method of punishment in what I am calling the Thomas/originalism dissent.

Justice Thomas' Miller dissent, which was joined only by Justice Scalia, rests on an originalism claim in this sentence:  "As I have previously explained, 'the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous methods of punishment — specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted.'  Graham (dissenting opinion)[FN 2]." The associated footnote 2 then says (cites omitted): "Neither the Court nor petitioners argue that petitioners’ sentences would have been among the modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.  Nor could they. Petitioners were 14 years old at the time they committed their crimes.  When the Bill of Rights was ratified, 14-year-oldswere subject to trial and punishment as adult offenders.  Further, mandatory death sentences were common at that time.  It is therefore implausible that a 14-year-old’s mandatory prison sentence — of any length, with or without parole — would have been viewed as cruel and unusual."

Though I am not deeply versed in Eighth Amendment originalism, I do know some reasonably contest that the Eighth Amendment was only "originally understood as prohibiting torturous methods of punishment."  But even if one fully accepts Justice Thomas' claim that the Eighth Amendment is only to be viewed as a restriction on punishment methods, I do not find it "implausible" to contend that those who enacted the Eighth Amendment in the late 18th century (and/or those who enacted the Fourteenth Amendment in the mid 19th Century) would view an LWOP prison term as "akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted."

A critical assumption built into the (suspect) logic of Justice Thomas' reasoning in footnote 2 is that, because the death penalty was not considered a cruel and unusual method of punishment for teens at the time the Bill of Rights was adopted, surely then must the seemingly lesser punishment method of prison not have been considered cruel and unusual.  But the Eighth Amendment surely was never meant or understood to support the claim that because death is a constitutional method of punishment everything short of death and/or leading up to death is also constitutional.  Many infamous forms of torture punishments around during the colonial period (such as thumbscrews, ducking stools, and the rack) were often not expected or intended to cause death, and yet all seem to agree that these methods of punishment would violated the Eighth Amendment even from an originalist perspective.  In addition, originalists seem also to agree that severe physical punishments designed to cause a painful "lingering death" in the process of completing an execution (such as the breaking wheel or drawing and quartering) were modes of punishment being barred by the Eighth Amendment's prohibition on cruel and unusual punishments.

Of course, being locked in a prison cage is surely not as physically painful a method as thumbscrews or the rack, especially over a short period of time.  But prison as the deprivation of liberty over time is surely a distinct method of punishment, and an LWOP prison term lasting many decades is surely much more physically and mentally taxing than, say, being subjected for a few days to thumbscrews or waterboarding.  (Indeed, I would wager many relatively young offender serving an LWOP would agree to enduring thumbscrews or waterboarding for a few days in order to get a real chance for an early release.)  In other words, though a day in prison is surely a less torturous method of punishment than a day on the rack, I am not sure that necessarily means that an LWOP prison term lasting many decades is a less torturous method of punishment than a day on the rack.

Moreover, bringing back in the Framers' mindset, in this context I often think of Patrick Henry's famed quote of "Give me liberty or give me death" and President Lincoln's famed description of America as a nation "conceived in liberty."  Against that backdrop, I think one might fairly conclude that many Framers would have viewed a LWOP prison term's permanent deprivation of human liberty to be a method of punishment (much?) worse than death.  Indeed, what truly makes an LWOP sentence so severe and extreme is that it is arguably just a form of "lingering death" because deprivation of any chance at parole ensures that an offender will forever linger in prison (sometimes with only slightly more liberty than someone left on a rack if always kept in solitary confinement) until he eventually dies.  (The fact that prison was concevied and designed to be soley a method of rehabilitative punishment around the time of enactment of the 14th Amendment add to my view that an LWOP prison term might very well have been viewed as both cruel and unusual to many Americans throughout much of American history.)

My point here is decidedly not that I think an originalist approach to the Eighth Amendment is ideal or provides a clear jurisprudence concerning when an LWOP sentence might and might not be constitutionally permissible.  Rather, as in all my posts in this series on the Miller dissents, I just want to flag the reality that the originalist claim that only some methods of punishment are unconstitutional does not necessarily and obviously, as Justice Thomas seeks to suggest, produce the conclusion that the LWOP sentences at issue in Miller were constitutional.  Indeed, because liberty-deprivation through confinement in prisons (and especially the LWOP sentence) are really a very modern mode/technology of punishment wholly unknown to the Framers, I think trying to figure out what the Framers would have thought about LWOP prison terms is a bit like trying to figure out what the Framers would have thought about the internet: one's personal views about the new technology will necessarily color one's judgment as to what the Framers' would have thought.

Related post in this series:

June 27, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17) | TrackBack

Ohio's Republican legislature, prodded by Republican gov, enacts major felon reentry reforms

This local story from my own Columbus Dispatch, which is headlined "Bill signings include help for freed felons," effectively highlights not only that bipartisanship remains vibrant on some "smart" criminal justice reforms, but also that having Republicans in charge of a state's political branches may be essential to moving these reforms from good ideas to enacted legislation.  Here is how the piece starts:

A bill that will reduce barriers to employment and education for felons when they leave prison was among the 13 pieces of legislation that Gov. John Kasich signed yesterday.

Deemed the “collateral sanctions” bill, Senate Bill 337 will make it easier for people getting out of prison to get jobs cutting hair, working construction, selling hearing aids and working as security guards. Judges will be able to award certificates to remove job barriers and protect employers from potential liability. Also, courts can order community service instead of fines or driver’s-license revocation for non-driving offenses, and child-support orders can be modified when inmates are in jail or have a felony record.

It was a truly bipartisan bill introduced by Democratic Sen. Shirley Smith of Cleveland and Republican Sen. Bill Seitz of Cincinnati — and championed by Kasich — that the House passed unanimously.

On issues key modern state criminal justices ranging from sentencing reform to collateral consequences to use of clemency powers, Ohio's Governor John Kasich has been, in my view, one of the most engaged and effective chief executives in the nation.  (For this reason, I may now have to start rooting for Mitt Romney to pick Gov Kasich as his running mate, though I doubt he is on any realistic short lists.)  And the Ohio General Assembly, perhaps because it is dominated by members of the same party as Governor Kasich and has a number of real thoughtful members on both sides of the aisle, merits great credit for not turning any of these issues into a political football to kick around seeking polling points.

Though sometimes I fear that praise from the ivory tower might hurt rather than help some politicians, I still must give a proud shout-out and hearty praise to Gov Kasich and the Ohio legislature.  I hope they keep up the great work and keep trying to make sure my Ohio tax dollars are not wasted on unduly harsh and ineffective criminal laws and policies.

June 27, 2012 in Collateral consequences, Reentry and community supervision, Who Sentences? | Permalink | Comments (5) | TrackBack

"Cracking the Disparities: The Ongoing Battle for Fairness in Crack Sentencing"

The title of this post is the headline of this effective new commentary by Nkechi Taifa at the Huffington Post. The piece highlights that the passage of the FSA and the subsequent ruling for defendants in Dorsey hardly makes all well in the federal sentencing world, and it urges President Obama to get in the game.  Here are excerpts:

Last week's Supreme Court ruling in Dorsey v. United States represents another victory in the ongoing battle for fairness in cocaine sentencing. The Court correctly ruled that the 2010 Fair Sentencing Act (FSA), which increased fairness in cocaine penalties, was not limited to newly committed crimes but applied also to offenses committed prior to passage of the Act where the defendant had not yet been sentenced....

The ruling comes in the wake of advances that have successfully chipped away disparities between crack and powder cocaine sentencing.  First, Congress passed the FSA, reducing the egregious 100-to-1 sentencing ratio to a more reasonable, albeit still insufficient, 18-to-1.  Second, the U.S. Sentencing Commission amended its guideline ranges to be consistent with the new Act.  Third, the Commission unanimously agreed to make these changes retroactive....

None of these necessary improvements, however, benefit those whose offenses and harsh, discriminatory mandatory minimum sentences occurred prior to the Fair Sentencing Act's passage. Ironically, these are the very cases that originally inspired reform.

The process for relief for this remaining category of cases can be swiftly initiated with the stroke of the executive pen, moving the nation closer to concluding a shameful chapter in the chronicles of federal drug sentencing policy.  There is wide support for fairness and consistency in cocaine sentencing, and utilizing presidential clemency power is the most practical option to ensure immediate reform.  Commutation of the sentences of the identifiable class of people currently incarcerated for crack cocaine offenses under the old sentencing regime -- that all three branches of government agree is unjust, inconsistent, unfair, and biased -- is timely and can be readily accomplished.

Professor Mark Osler and former prosecutor Matthew Fass in a recent article [here from the Federal Sentencing Reporter], highlighted Gerald Ford's 1974 strategic use of the presidential pardon power to impanel an ad hoc executive clemency board to oversee the petitions of 21,000 people convicted of draft-related offenses during the Vietnam War. Within a year, President Ford granted 90 percent of the petitions.  On balance, the approach by Ford to establish a pardon board allowed for individualized review of each clemency application, with options including approval, community service, or denial....

Similarly, adoption of an individualized review process for pre-FSA cases would not be burdensome or a "get out of jail free card."  Cases could simply be recalculated according to the new 18-to-1 ratio, under already existing parameters established by the Sentencing Commission that result in gradual releases in appropriate cases over the course of several decades.  The president would be free to use his constitutional pardon power unrestricted by the 18-to-1 ratio should he so choose.

Moreover, the creation of a transparent process by which to review and remedy these discredited sentences would correct an injustice that has resulted in egregiously severe and racially discriminatory sentences for a quarter of a century.  And establishment of a clemency board independent of the Office of the Pardon Attorney and the Department of Justice could shield the review process from scandals of past administrations and current allegations of discriminatory treatment of clemency applications unveiled by the investigative journalism website Pro Publica....

Despite improvements by Congress, the Sentencing Commission, the Department of Justice and the Supreme Court, the fight for fairness and justice in crack cocaine sentencing is not over.  The president could bring closure to this injustice through his constitutional executive power of clemency, creating a review board to reevaluate old crack cocaine sentences so they are consistent with the new law.

Regular readers should not be surprised to hear that I think this is a great idea, nor should they be surprised to see this great idea get completely ignored by the powers-that-be in the White House (at least until after this November's election).

June 27, 2012 in Clemency and Pardons, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Arizona scheduled to conduct a more transparent execution

As reported in this AP article, headlined "Arizona inmate to be executed in new open process," folks are today literally going to see the impact of a media lawsuit concerning state execution protocols.  Here is how the piece starts:

Witnesses expect to be able to see prison officials inject a lethal drug into a condemned inmate for the first time in Arizona history on Wednesday, when the state is scheduled to execute its fourth prisoner of the year.  Arizona opened up the process after a federal judge recently sided with The Associated Press and other news organizations in Idaho to allow witnesses full viewing access to lethal injections.

Until now, witnesses from the news media, the state and victims' family members walked into the death chamber at the state prison in Florence after the inmates had been injected and covered with a sheet up to their chest or neck.  Once the witnesses were in place, the drugs then coursed through the inmates' veins.  Now witnesses will see the actual injection, something that defense attorneys sought in an effort to ensure inmates don't experience any unnecessary pain.

Samuel Villegas Lopez is set to be Arizona's fourth inmate to die by a single-drug lethal injection.  Two more condemned prisoners whose appeals are nearing their end could be executed by the end of the year, which would put the state on pace to match its busiest year for executions and among the busiest death-penalty states in the nation.

Lopez was sentenced to die for the brutal rape and murder of a 59-year-old Phoenix woman in 1986. Of the 126 inmates on Arizona's death row, only five have been there longer than him.

June 27, 2012 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Lots of new interesting and diverse prison headlines and stories

A quick Google news search on the term prison has brought up this morning a whole host of notable stories. In no special order, here are some of the headlines and links to stories that caught my eye:

June 27, 2012 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

June 26, 2012

Anyone eager to discuss Dorsey or Southern Union or Arizona v US or...

any of the other still on-going SCOTUS developments or other sentencing stories beyond the Supreme Court's Eighth Amendment work in Miller v. Alabama?  I ask in part because there is much of recent SCOTUS sentencing law and policy activity worthy of continued discussion beyond the Miller ruling, and yet I have (too) many ideas swirling around my head for future posts/commentaries on various aspects of the Miller case and its likely aftermath.

I have already posted six significant entries in the last 36 hours concerning the Miller ruling, and I have at least three more blog commentaries in the works on the dissenting opinions and on how states with lots of mandatory LWOP juve sentences might most efficiently respond to the holding.  (In addition, I could and perhaps should try to provide in additional posts some round up of the more interesting MSM coverage and blogosphere commentary on the Miller decision.)  But if readers report in the comments that they are already getting Miller fatigue (and/or would rather see posts on other topics), I will be inclined to move toward a last call on Miller time.

June 26, 2012 in Who Sentences? | Permalink | Comments (4) | TrackBack