July 21, 2012
Kentucky considering one-drug protocol four years after Baze approved its three-drug approach
This local article, headlined "Kentucky proposes single-drug execution method," reports that the state which successfully defended its three-drug execution protocol before the Supreme Court in the Baze case is now changing its execution plans. Here are the basics:
Kentucky Justice Cabinet officials filed the regulatory changes Friday, outlining a new protocol that would allow wardens to execute inmates with an intravenous solution of either sodium thiopental or pentobarbital, instead of the combination of sodium thiopental, pancuronium bromide and potassium chloride.
Death penalty opponents and inmates have argued that the three-drug mixture violates the constitutional prohibition on cruel and unusual punishment by producing more pain compared to the one-drug method.
The fight over Kentucky’s method has been going on for a year and a half, and the debate has been one of the factors that have held up executions in recent years in the state. Executions cannot resume until the state’s protocol passes muster. In April, Franklin Circuit Judge Phillip Shepherd ordered the cabinet to change the protocol within 90 days or defend the mixture in his court....
The proposals are scheduled for a public hearing Sept. 25 and could appear before the state’s Administrative Regulation Review Subcommittee as soon as October. But any controversy could push the proposed regulations’ effective date as far back as January....
David Barron, an assistant public advocate with the Kentucky Department of Public Advocacy, said death-row inmates would continue legal fights against lethal injection under the proposed regulations, which he said leave many issues unresolved and create new problems. “They appear to be attempting to carry out executions in a way that no state has even attempted, let alone done before,” Barron said.
The new rules provide wardens with a second option for executing inmates if the single-drug injections are not available seven days prior to a scheduled execution. In those cases, a two-drug protocol involving a mixture of midazolam and hydromorphone would be permitted, but the warden would have to notify inmates seven days in advance of which option will be used. “That itself invites last-minute litigation because you don’t know if you are going to be executed with one drug or the two drugs” until a few days beforehand, Barron said.
At least seven other states have switched to the one-drug method for lethal injections. Deborah Denno, who has studied execution methods from around the country, told the Associated Press that states now use a half-dozen ways to carry out executions. “States are so panic-stricken about not being able to execute, they’re creating this Frankenstein-type of procedure of killing at all cost, whatever it takes,” Denno said.
Kentucky’s regulations are similar to Ohio’s and cover a variety of details about how an execution is carried out, ranging from when an inmate is moved from death row to the holding cells where the execution chamber is housed to who pronounces the inmate dead and how.
As regular, long-time readers know, many supporters of the aggressive litigation against states using three-drug protocols for lethal injections would often assert that the litigation was not designed to halt or delay executions but to prod states to adopt better execution protocols such as those involving only one-drug. Indeed, calls for a switch to a one-drug protocol were common in the Kentucky litigation that made it to the Supreme Court in Baze v. Rees in 2008, though Kentucky succeeded in getting the Justices to approve its then-in-place three-drug method.
Now, four years later, most as a result of still continuing aggressive litigation about three-drug protocols, Kentucky appears poised to adopt a new execution method that embraces the one-drug protocol previously championed by many on the defense side. And, as far as I can tell, the state which have used this kind on one-drug protocol to date have yet to experience any obvious or serious problems with this method of completing death sentences. Nevertheless, as Kentucky and perhaps others states finally begin to line up to adopt this apparently improved method of execution, there are still claims that states are "creating [a] Frankenstein-type of procedure of killing at all cost." These assertions confirm my long-standing view and fear that the litigation over lethal injection protocols was more about obstructing any and all executions rather than about truly improving the means for how these executions would be completed.
"The Mandatory Meaning of Miller"
The title of this post is the title of this new piece by Professor William W. Berry III. Here is the abstract:
In June 2012, the United States Supreme Court held in Miller v. Alabama that the Eighth Amendment’s ban on 'cruel and unusual' punishment prohibited the imposition of mandatory life-without-parole sentences on juveniles. This case continued the Supreme Court’s slow but steady expansion of the scope of the Eighth Amendment over the past decade.
In light of the Court’s decision in Miller to preclude mandatory sentences of life without parole for juveniles, this article explores the possibility of further expansion of the Eighth Amendment to proscribe other kinds of mandatory sentences. Applying the approach of the Court in Woodson and Miller to other contexts provides, at the very least, a basis to remedy some of the injustices created by mandatory sentences.
This article, then, argues that the “mandatory” meaning of Miller is that the Eighth Amendment requires consideration of mitigating evidence by courts in all cases involving “death-in-custody” sentences. In light of this mandatory” meaning, the article then considers several important normative consequences.
Specifically, application of this 'mandatory' meaning would result in the Eighth Amendment barring imposition of a 'death-in-custody' sentence in capital cases where life with parole is not a sentencing option, cases involving a mandatory sentence of life without parole, and cases where the term of the sentence approaches the life expectancy of the offender. As explained below, the key principle here is that the Eighth Amendment requires courts to examine mitigating evidence in any case where the duration mandated legislative sentence exceeds the life expectancy of the offender.
Part I of this article explains the meaning of 'mandatory' as developed by Miller. In Part II, the article describes the normative consequences of adopting the 'mandatory' meaning of Miller -- when 'mandatory' matters -- in applying the Eighth Amendment to 'death-in-custody' cases. In Part III, the article then makes the case -- why 'mandatory' matters -- for adopting this approach in Eighth Amendment cases.
July 20, 2012
Ignition lock law in Kansas seeming responsible for huge drop in DUI fatalities
This local article from Kansas, headlined "DUI fatalities drop sharply in wake of recent law," provides additional and dramatic support for my long-standing belief that any and everyone seriously committed to saving innocent victims from deadly criminal activity ought to be vigorous and vocal supporters of ignition locks as a punishment for drunk driving. Here is the report on amazing data from Kansas:
When lawmakers passed legislation in 2011 requiring an ignition interlock for those convicted of their first drunken driving offense, one of the main goals was cutting down on alcohol-related traffic fatalities. After a year, it appears the law is working, according to preliminary data released by the Kansas Department of Transportation.
Between July 1, 2011 — when the state’s new DUI ignition interlock law went into effect — and June 30, 2012, the state recorded 59 alcohol-related traffic fatalities, compared with 125 and 137, respectively, for the previous two years during the same timeframe....
Kansas had lagged behind the country in reducing alcohol-related fatalities, seeing increases in recent years as numbers dropped across the country. Alcohol-related traffic fatalities averaged 116 a year between 2000 and 2010 in the state.
Kansas drivers with a DUI conviction now must install an ignition interlock — which requires drivers to blow into a device to show their blood-alcohol level is under .04, half the legal limit — before their vehicle will start. Under the new law, first-time DUI offenders must use an ignition interlock for a year; drivers with multiple DUI convictions must use it longer.
Kansas joined 14 others states in enacting a first-time offender ignition interlock law. Most states have some form of ignition interlock law, but some only apply to repeat DUI offenders.
Pete Bodyk, traffic safety manager for KDOT, was also on the commission, and cautioned that the preliminary numbers will probably go up some, but he still expects the data to show a significant decline in fatalities since the law was enacted. While there’s no way to know for sure if the drop in alcohol-related fatalities was a direct result of the new law, Bodyk said “that’s the only thing that’s new. ... Hopefully we’ll see a trend.”
Largest mass shooting in US history surely to become a capital case
Though I am sure hard-core death penalty abolitionists feel differently, I cannot help but find some comfort in the fact that the state which just experienced the worst mass shooting in US history still has capital punishment. Here are the awful basics via this ABC News account:
Twelve people were killed and 59 were injured in Aurora, Colo., during a sold-out midnight premier of the new Batman movie "The Dark Knight Rises" when 24-year-old James Holmes allegedly unloaded four weapons' full of ammunition into the unsuspecting crowd. The number of casualties makes the incident the largest mass shooting in U.S. history.
Holmes, an honors student and Ph.D candidate at a nearby college with a clean arrest record, allegedly entered the movie auditorium wearing a ballistics helmet, bullet-proof vest, bullet-proof leggings, gas mask and gloves. He detonated multiple smoke bombs, and then began firing at viewers in the sold-out auditorium, police said today.
Bullets from the spree tore through the theater and into adjoining theaters, where at least one other person was struck and injured. Ten members of "The Dark Knight Rises" audience were killed in theater, while two others died later at area hospitals. Numerous patrons were in critical condition at six local hospitals, the Aurora police said this afternoon....
Holmes was apprehended within minutes of the 12:39 a.m. shooting at his car behind the theater, where police found him in full riot gear and carrying three weapons, including a AR-15 assault rifle, which can hold upwards of 100 rounds, a Remington 12 gauge shot gun, and a .40 Glock handgun. A fourth handgun was found in the vehicle. Agents from the federal bureau of Alcohol, Tobacco, and Firearms are tracing the weapons. ABC news confirmed that they were all purchased legally.
According to police sources, Holmes told the officers arresting him that he was "The Joker," referring to the villain in the second installment of the Batman movie trilogy, "The Dark Knight." He also warned police that he had booby-trapped his apartment, leading officers to evacuate the Aurora apartment building.
Police Chief Dan Oates said today that police, bomb squads, and the ATF have found a large number of explosive devices and trip wires at Holmes' apartment and have not yet decided how to proceed without setting off explosions. "The pictures we have from inside the apartment are pretty disturbing considering how elaborate the apartment is booby trapped," police said outside of the apartment complex today. The "flammable and explosive" materials could have blown up Holmes' apartment building and the ones near it, police said....
Witnesses in the movie theater said they saw smoke and heard gunshots that they thought were part of the movie until they saw Holmes standing in front of the screen, after entering from an emergency exit. Holmes methodically stalked the aisles of the theater, shooting people at random, as panicked movie-watchers in the packed auditorium tried to escape, witnesses said.
At one point the shooter exited the theater only to wait outside the doors and pick off patrons as they tried to exit, witness Jennifer Seeger told "Good Afternoon America." "You just smelled smoke and you just kept hearing it, you just heard bam bam bam, non-stop. The gunman never had to reload. Shots just kept going, kept going, kept going," one witness told ABC News....
The suspected shooter will face his first court appearance next week, according to district attorney Carol Chambers. Holmes, originally of San Diego, moved to Aurora to pursue his Ph.D. at the University of Colorado medical center, living just blocks from the hospital in an apartment that police say is now laced with explosives and being searched by HazMat teams.
Federal law enforcement sources tell ABC News that Holmes bought a ticket to the movie, slipped out of the theater once it began and propped open the emergency exit before gathering his weapons and gear and coming back into the theater. Once inside, he opened fire.
In the immediate aftermath of these sorts of horrific mass killings, I find it so very hard to react with my head without also listening to my heart. And in these kind of awful cases, my heart (or is it my gut) often suggests to me that ultimate punishment of death is the only one which feels fitting. I suspect Colorado prosecutors (and perhaps also federal prosecutors) will have similar feelings.
"Insider Traders Face Longer Sentences as Judges Get Tough" (except for cooperators)
The title of this post is drawn from the headline of this Bloomberg article, which my editorial addition in parenthesis. Here are excerpts:
Inside traders have more to fear when they stand before Manhattan federal judges for sentencing. Since Jan. 1, 2011, the judges have sent the average violator to prison for more than 22 months, according to an analysis of sentencing data by Bloomberg News. That was a 20 percent increase from the average term of 18.4 months during the previous eight years.
The harsher sentences come three years into a federal crackdown on insider trading on Wall Street. Since August 2009, federal prosecutors in Manhattan have charged 71 people with insider trading and won 65 convictions, with six cases still pending. Some of those convicted, including former Goldman Sachs Group Inc. director Rajat Gupta, are awaiting sentencing.
“There are different insider-trading cases now,” Ellen Podgor, a professor at Stetson University College of Law in Gulfport, Florida, said. “You look at the individuals they’re going after now -- it’s a higher level.”
Judges in Manhattan federal court are also slightly more likely to send offenders to prison. Twenty-one of 36 defendants sentenced for insider trading since the start of 2011 -- or 58 percent -- were jailed. By comparison, 24 of the 43 defendants sentenced from 2003 through 2010, or 56 percent, lost their freedom. Of late, most of those who avoided prison cooperated with the government.
The longer terms for insider trading are consistent with lengthier terms nationally for all forms of fraud. According to U.S. Sentencing Commission statistics, the average sentence in fraud cases in fiscal 2011 rose to 23 months from 14.4 months eight years earlier, a 60 percent increase. “White-collar sentences all across the U.S. are going up,” Podgor said in a phone interview....
Cooperating with the government has kept some of those convicted out of jail. Since the start of 2011, judges have sentenced 12 defendants who admitted their guilt and agreed to provide evidence for prosecutors. Cooperators have secretly recorded their friends and colleagues, interpreted documents and worked in other ways with federal agents. Eleven of the cooperators avoided prison altogether, according to the data. One got six months.
“It’s important that cooperating witnesses do get lower sentences,” said Christopher Garcia, former chief of the securities fraud unit in the U.S. Attorney’s Office in Manhattan. “The hope of reduced sentences is a powerful tool for prosecutors in persuading and encouraging people to make cases against others.”
Anil Kumar, a former McKinsey & Co. director who testified against both Rajaratnam and Gupta, was sentenced yesterday to probation. U.S. Circuit Judge Denny Chin cited Kumar’s “extraordinary cooperation” and his effort to “make amends for what he did.”
Judges in most insider cases imposed terms less than those recommended by the Sentencing Commission’s guidelines, according to court records. Rajaratnam, facing from 19 years to 24 1/2 years under the guidelines, got 11 years behind bars. Holwell explained at sentencing that Rajaratnam was sick and had a history of doing charitable works. In another case, James Fleishman, a Primary Global executive convicted of leaking tips, got 30 months when the guidelines called for a term of 87 to 108 months. U.S. District Judge Jed Rakoff, who has been critical of the sentencing guidelines, handed down the sentence.
James Felman, a lawyer in Tampa, Florida, who serves as the American Bar Association’s liaison to the Sentencing Commission, said many judges are willing to undercut the harsh terms urged by the guidelines in white-collar cases. The U.S. Supreme Court ruled in 2005 that the guidelines were no longer mandatory. “All guideline sentences have been increasing,” Felman said in a phone interview. Of the recommended white-collar sentences, he said that “even the government is aware they’re frequently too high.”
Still, a conviction for insider trading almost always means prison time for non-cooperating defendants. Of 24 non-cooperators who pleaded guilty or were convicted at a trial during the period measured here, 20 were ordered imprisoned for an average of 33 months. The four spared played minor roles in the schemes, judges said.
July 19, 2012
New Sentencing Project report highlights for-profit detention in the federal system
The report details how harsher immigration enforcement and legislation led to a 59 percent increase in the number of detainees being held by the federal government between 2002 and 2011. It specifically examines how Immigration and Customs Enforcement (ICE) and the U.S. Marshals Service (USMS) have increasingly relied on private companies to detain these individuals, as well as the complex network of facilities that house federal detainees, and the failings of private detention. Among the report's major findings:
- Between 2002 and 2011 the number of privately held ICE detainees increased by 208 percent, while the number of USMS detainees held in private facilities grew by 355 percent.
- In 2011, 45 percent of ICE detainees and 30 percent of USMS detainees were held by private companies.
- Federal detainees are held in a complex network of facilities in which information on where individuals are being held, and by whom is often unavailable or incomplete.
- The private detention industry is dominated by the same companies that are regularly criticized for their management of private prisons.
- Concerns raised in the context of private prisons, including unsatisfactory levels of service, negative political and policy implications, and questionable economic effects, apply equally to private detention.
The full report, Dollars and Detainees: The Growth of For-Profit Detention, includes a list of the privately-operated facilities actively employed by ICE and USMS, as well as detailed graphs and data on the growth of private detention, and the lobbying activities of Corrections Corporation of America.
Effective review of Southern Union's impact and potential import
For various understandable reasons, the Supreme Court significant Sixth Amendment ruling in Southern Union has not gotten all that much attention. But this effective Indiana Lawyer article, headlined "US Supreme Court: Criminal fines require jury finding," provides a nice reminder of the significance of the ruling. Here are excerpts from this piece:
An end-of-term U.S. Supreme Court decision did far more than reduce a penalty in a federal criminal environmental judgment from $18 million to $50,000. It created a new reality for how the government will have to pursue such prosecutions in the future, experts say.
A rare coalition of conservative and liberal justices ruled 6-3 in Southern Union Co. v. United States, 11–94, that the Sixth Amendment right to a jury trial requires a jury to determine facts to support a sentence imposed after a guilty verdict....
“This is definitely a win for the defendants,” [Indiana University law professor Ryan] Scott told the Indiana Lawyer. “That said, the history of Apprendi is one of the Supreme Court recognizing more and more expansive jury rights and the government responding with great resilience.”
In essence, experts said, juries will have to determine factors such as lengths of violations for sentences involving fines on a “per day/per violation” basis, or losses and potential penalties in federal fraud cases. A simple guilty verdict such as that in Southern Union no longer is sufficient to allow a judge to use his or her discretion in levying criminal fines....
Southern Union seems to suggest that Apprendi may apply to any penalties inflicted by the government for the commission of offenses.... Also left for future consideration: “When does an offense rise beyond the level of ‘non-petty’ and become substantial enough to invoke the Apprendi rule?”
Scott also sees more Apprendi questions arising. The jury trial right could be a matter for the courts to decide in cases involving restitution determinations and in matters where asset forfeiture is ordered, he said.
Press and pressure prompting talk of clemency reforms in White House
As reported in this encouraging new story from Danfa Linzer at ProPublica, headlined "Obama Administration Wants Review of Prisoner’s Commutation Request," it appears that all the bad press about federal clemency practices has gotten some traction in the White House. Here is how the story starts:
The Obama administration has asked for a fresh review of an Alabama federal inmate's commutation request and directed the Justice Department to conduct its first ever in-depth analysis of recommendations for presidential pardons, according to several officials and individuals involved.
The Office of Pardon Attorney has been at the center of growing controversy since December, when stories published by ProPublica and The Washington Post revealed a racial disparity in pardons. White applicants were four times more likely to receive presidential mercy than minorities. African Americans had the least chance of success.
A subsequent story published in May recounted the saga of Clarence Aaron, a first-time offender sentenced in 1993 to three life terms in prison for his role in a drug conspiracy. In 2008, the pardon attorney recommended that President George W. Bush deny Aaron's request for a commutation even though his application had the support of the prosecutor's office that tried him and the judge who sentenced him. The pardon attorney, Ronald L. Rodgers, did not fully disclose that information to the White House.
The handling of Aaron's case prompted widespread criticism that the pardon office -- which has rejected applications at an unprecedented pace under Rodgers -- is not giving clemency requests proper consideration.
Aaron filed a new commutation request in 2010, which is pending. In the past two months, his cause has been taken up by members of Congress, law professors and prominent civil rights advocates, many of whom have called for a broader investigation of the pardon process.
Since 2008, more than 7,000 applications for commutations have been denied, more than 22 times the total rejected in President Ronald Reagan's two terms. Obama has commuted the sentence of just one person. Recent presidents also have granted fewer pardons than their predecessors. Bush granted 189 during his two-term presidency, less than half the number pardoned by President Bill Clinton. So far, Obama has pardoned 22 individuals.
Advisers to the president said they expect that number to rise significantly whether or not he is elected to a second term. "There will be 76 days between the election and inauguration for the president to exercise his power," said an official who spoke on condition of anonymity because the official was not authorized to speak publicly.
Officials said there has been growing interest inside the White House for reforming the pardon process, specifically how recommendations are made to the president.
Though I am very disinclined to count any clemency chickens before they are hatched, this story at least gives some new hope to those long concerned about modern federal pardon practices.
Chief Justice blocks Maryland ruling precluding DNA collection from arrestees
As reported in this AP article, "Supreme Court Chief Justice John Roberts is allowing police in Maryland to resume collecting DNA samples from people arrested for serious crimes." Here is more:
Roberts on Wednesday issued an order that temporarily blocked a Maryland court ruling that effectively barred the collection of genetic material from criminal suspects without a warrant. The order was issued at the state's request in the case of Alonzo King Jr.
King was convicted of a 2003 rape based on DNA evidence taken after his arrest on assault charges in 2009. The sample matched DNA collected from the victim in the 2003 attack.
Roberts said his order will remain in effect at least until King responds to the state's arguments. Roberts set a July 25 deadline for the response.
July 18, 2012
"Punishment and Recidivism in Drunk Driving"
The title of this post is the title of this new paper on SSRN by Benjamin Hansen on a topic I always find of interest. Here is the abstract:
Traditional economic models of criminal behavior have straightforward predictions: raising the expected cost of crime via apprehension probabilities or punishments decreases crime. I test the effect of harsher punishments on deterring driving under the influence (DUI).
In this setting, punishments are determined by strict rules on Blood Alcohol Content (BAC) and previous offenses. Regression discontinuity derived estimates suggest that having a BAC above the DUI threshold reduces recidivism by up to 2 percentage points (17 percent). As receipt of previous DUI violations increases future penalties for drunk driving, this is consistent with Beckerian models of criminal activity. However, enhanced penalties for aggravated DUI also reduce recidivism by an additional percentage point (9 percent), despite the fact that the enhanced punishments only affect the current penalties. This is consistent with models of bounded rationality for offenders, wherein expectations of future punishments are based upon previous punishments experienced.
If I understand this abstract, I think the take away is that tougher drunk driving punishments reduce recidivism. If this is right, it confirms my hope and belief that drunk driving is one arena in which general and specific deterrence may work relatively well and it serve to reinforce my belief that, despite the general harshness of modern American punishment schemes, we still can tend to be too lenient on a few offenses we can reasonably seek to deter.
Rajat Gupta hoping to get by (federal sentencing) with a little help from his friends
This new sentencing story from Fox Business, which is headlined "Gupta Seeks Help From Friends for Lenient Sentence," has me in a Beatles mood today. (This mood may also be the product of my being at Oxford in the UK and thinking about making a sojourn to Liverpool. Folks reading this post in the US can think about Joe Cocker (and check out this classic live performance) for an American version of the same musical spirit.) The story concerns a request made by a very high-profile white-collar defendant in preparation for his federal sentencing scheduled for this fall. Here are the details:
Rajat Gupta, the former Goldman Sachs board member recently convicted for providing illegal trading tips to former Galleon chief Raj Rajaratnam, has made an unusual request to former business associates and prominent acquaintances urging them to write letters of support to the judge in the case so he can receive the most lenient sentence for his crimes, the FOX Business Network has learned.
A copy of the request, obtained by FBN, even goes so far as to suggest that U.S. District Judge Jed Rakoff “would like to receive letters of support from friends and family” so the judge can “understand me as a person. This gives the judge a full idea of who I am and significantly influences the decision.”...
“I look forward to hearing from you with a positive response,” Gupta added in the request sent earlier in the month, “and thank you very much in advance.”
Gupta is scheduled to be sentenced on Oct. 18, and faces as many as 20 years in jail for securities fraud. So-called support letters of this kind have been known to prod judges to hand out more lenient sentences, though Gupta may have overplayed his hand in suggesting that Rakoff is personally requesting the letters.
The Fox Business Network has learned that Gupta sent the request to numerous people without his attorney reviewing the content. A press official for Rakoff said there has been “no active solicitation of letters” from the judge. FBN has also learned that after being alerted to the language in the request, Gupta’s attorney Gary Neftalis, reissued the correspondence removing the line implying the judge’s advocacy for the letters and simply pointing out that such letters of support delivered to the sentencing judge are “customary.”...
Columbia University law professor John Coffee said Rakoff is known to take letters of support seriously in doling out sentences, though he said Gupta’s aggressive pitch to friends and colleagues “is not going to help” in gaining leniency.
The aggressive tone of the letter underscores the difficult spot that Gupta finds himself in following the guilty verdict. The former Goldman board member, and head of the giant McKinsey & Co., was cleared of two counts during his trial last month. Yet he was convicted of several more, and is widely regarded as the most prominent business executive snared in the government crackdown on insider trading. Among the most sensation counts Gupta was convicted on involved leaking to Rajaratnam details of a Goldman Sachs board meeting involving Warren Buffett’s infusion of cash into the firm at the height of the financial crisis.
Prosecutors showed phone records in which Gupta called Rajaratnam shortly after the board meeting and Rajaratnam purchased shares of Goldman before Buffett’s move was made public. Rajaratnam himself was convicted of multiple counts of securities fraud and insider trading violations and is serving an 11-year sentence. Most legal experts don’t expect Gupta to receive as lengthy of a jail term as Rajaratnam; prosecutors are likely to ask for a decade of jail time based on sentencing guidelines, but Gupta himself never traded on the inside information. The best prosecutors could do was portray Gupta as using his inside knowledge and tips to curry favor and do business with Rajaratnam, once a billionaire fund manager and one of Wall Street top traders.
In Gupta’s favor is Rakoff’s reputation for handing less jail time than what prosecutors often recommend, which is why Gupta’s request for letters from prominent people -- many of them in fields outside of Wall Street -- is so important. Friends of Gupta say both he and his family were hit hard by the guilty verdict, and the likelihood of jail time and the letter suggests as much....
One additional reason for the aggressive pitch may be that Gupta believes Rakoff will be less likely to cut such a prominent person a break on sentencing. A former prosecutor who has argued cases before Rakoff says the judge is known to come down hard on white collar defendants who “should have known better.” Rakoff sentenced attorney Marc Drier to 20 years in prison for stealing $400 million from his clients.
“Let’s face it, Gupta is a board member of Goldman and the former head of McKinsey,” the former prosecutor said. “He knows that he’s isn’t supposed to be telling people about what goes on during board meetings, and that may force Rakoff to come down harder on him than he would otherwise.”
Fox Business has made available at this link the letter referenced in its article. I do not view the tone or wording of this letter as such a big deal; but the way in which Fox Business covers this seemingly minor pre-sentencing development confirms my sense that Gupta's sentencing will be one of the highest profile and most interesting federal sentencing cases of 2012.
Related posts on upcoming Gupta sentencing:
- Any early federal sentencing predictions after quick conviction in Gupta insider trading case?
- Interesting commentary on upcoming Gupta sentencing for insider trading
July 17, 2012
"Can money save you from prison?"
The title of this post is the headline of this new article from the Cincinnati Enquirer, which carries the subheading "Facing more than 30 years in prison a convicted drug dealer and gambler made a deal." Here are excerpts from the piece:
Derek Ragan, a convicted drug dealer and gambler, faced more than 30 years in prison after officials raided his West End restaurant, called it an illegal gambling house and seized almost $1 million in cash. When he left court last month, Ragan had none of that cash – but had his freedom.
Ragan agreed to forfeit the $992,457 seized by police, eventually split by four law enforcement agencies and the IRS, hoping for leniency. It worked. Instead of the decades in prison the original charges carried, he got probation. “Sometimes money talks,” said Rich Goldberg, a Hyde Park criminal defense attorney who represented Ragan in the past. “I suspect if he had $9.92 instead of over ($992,000 seized), there is a likelihood a plea bargain wouldn’t have been as good for him.”...
Prosecutors won’t specifically say why the deal was offered to Ragan, saying plea deals are a normal part of their strategy. Is it cynical to suspect it was because he agreed to forfeit the almost $1 million seized?
Yes, said Julie Wilson, spokeswoman for the Hamilton County Prosecutor. “Some charges were dismissed pursuant to a plea agreement but the plea was NOT contingent on forfeiture of the money,” she wrote in an email.
Ron White, a philosophy professor at the College of Mount St. Joseph, isn’t convinced. “I don’t think it’s cynical at all. I think it’s today’s reality,” White said. “These are minor crimes compared to murder and theft... It raises lot of questions.” A culture of 'cash or prison'
The concern, added attorney Larry Salzman, is such plea deals could “create a culture of cash or prison.” Salzman is with Institute for Justice, a Virginia-based law firm specializing in fighting government forfeiture cases. “It calls into question the legitimacy of prosecutions,” Salzman said. “If they’re going to have a direct financial incentive, it creates a perverse incentive for law enforcement. It creates a climate of cynicism.”
New York Times editorial assails appeal waivers
Today's New York Times has this new editorial about appeal waivers headlined "Trial Judge to Appeals Court: Review Me." Here are excerpts:
Earlier this year, an opinion for the Supreme Court by Justice Anthony Kennedy noted a stunning and often overlooked reality of the American legal process: a vast majority of criminal cases — 97 percent of federal cases, 94 percent of state cases — are resolved by guilty pleas. “Criminal justice today,” he observed, “is for the most part a system of pleas, not a system of trials.”
In this context, the recent rejection in a federal district court by Judge John Kane of a plea bargain deal between a defendant and federal prosecutors is truly startling. Judge Kane rejected the deal in part because the defendant waived his right to appeal to a higher court...
Waivers are a common but largely hidden element of plea bargains — which, in many federal cases, aren’t really bargains because the power of prosecutors is often so much greater than that of the defendants or their lawyers. The process is closer to coercion. Prosecutors regularly “overcharge” defendants with a more serious crime than what actually occurred. The defendants must then choose between the risk of being found guilty at trial and getting a longer sentence than the alleged crime would warrant or a guilty plea in exchange for a lighter sentence. All but a tiny minority of defendants take the plea as the price of avoiding the crapshoot of a trial....
Some standard parts of waivers are outrageous, keeping defendants from appealing even if they become convinced that they received inadequate counsel to accept a defective plea agreement where the sentence was not lighter or where the prosecutor wrongly withheld evidence. Any defense lawyer or prosecutor who asks a defendant to sign a waiver ruling out appeals on those grounds is protecting himself.
An important element of justice is missing even when the defendant and the government believe a plea bargain is fair and when an appeal waiver is narrow so the defendant can appeal about certain specified issues. Congress gave appeals courts the power to review federal sentences to ensure the government applies the law reasonably and consistently. Without an appeals court’s policing, the odds go up that prosecutors will do neither. Our system of pleas then looks more like a system of railroading.
Recent related post:
"Prosecutor Elections, Mistakes, and Appeals"
A helpful reader alerted me to this interesting-looking new paper on SSRN by Bryan C. McCannon which shares the title of this post. Here is the abstract:
Public prosecutors exercise a significant amount of discretion in the criminal justice system. In the U.S. the dominant form of accountability is that prosecutors must be re-elected by the voters. Recent empirical work illustrates that election concerns open up the potential for distortion in the decisionmaking of prosecutors. Specifically, it has been shown that prosecutors take more cases to trial and plea bargain less when running for re-election. This effect is magnified when the incumbent is challenged. Does this hawkish behavior of prosecutors lead to inaccuracies in the criminal justice system?
A panel data set of appellate decisions in western New York is analyzed. It is shown that if the initial felony conviction takes place in the six months prior to a re-election and is appealed, then the probability the appellate court upholds the lower court’s decision decreases by 5.1-7.1 percentage points. Thus, the popular election of prosecutors results in inaccurate sentences and wrongful convictions.
July 16, 2012
Iowa Gov uses clemency power to devise (astute? sinister?) response to Miller for juve LWOPers
A helpful reader from Iowa alerted me to this notable story from the Hawkeye State, headlined "Branstad commutes life sentences for 38 Iowa juvenile murderers." Here are the interesting details of how one state's governor is taking the lead in responding to last month's SCOTUS ruling in Miller:
Gov. Terry Branstad commuted the life sentences of 38 juveniles Monday, giving them mandatory 60-year prison terms instead. The governor’s action comes in response to last month’s U.S. Supreme Court ruling in Miller v. Alabama, in which the court ruled that states could not require life sentences without the possibility of parole for juveniles found guilty of first-degree murder.
The ruling raised the possibility that anyone sentenced to life without parole before they were 18 could petition the court for a new trial. By using his commutation powers, the governor appears to have taken that option off the table.
“During this process, the victims are all too often forgotten by our justice system and are forced to relive the pain of the tragedies,” Branstad said. “These victims have had their loved ones violently taken away from them. I take this action today to protect these victims, their loved ones’ memories and to protect the safety of all Iowans.”...
In compliance with the Supreme Court decision, Branstad commuted the life without parole sentences to life with the possibility of parole only after 60 years for the 38 people, who were convicted of first-degree murder while juveniles. This action means that they will not have the possibility of parole until they have served 60 years.
“Justice is a balance, and these commutations ensure that justice is balanced with punishment for those vicious crimes and taking into account public safety,” said Branstad. “First-degree murder is an intentional and premeditated crime and those who are found guilty are dangerous and should be kept off the streets and out of our communities.”
This action by Iowa's governor seems like an especially efficient means to deal with Miller issues, though whether it merits praise or criticism on other grounds is surely to be impacted by one's perspective on the virtues and vices of the Supreme Court's ruling in Miller. In addition, as noted by the helpful reader who alerted me to this story, the legal status of this action is itself perhaps open to question:
[This result] raises questions concerning the constitutionality of such a sentence, given (1) the fact that no individualized hearing as contemplated by Miller would apparently be held (the Iowa Court of Appeals recently reversed and remanded two cases for such hearings in State v. Bennett, 2012 Iowa App. LEXIS 542 (Iowa Ct. App. July 11, 2012) and State v. Lockheart, 2012 Iowa App. LEXIS 531 (Iowa Ct. App. July 11, 2012)), and (2) the potential disparity in sentence with future juvenile murderers since Iowa statutory law would not contemplate such a sentence.
Exciting new data and resources from US Sentencing Commission
Via e-mail, I have today received this exciting news concerning new materials and data available from the US Sentencing Commission via its website:
The United States Sentencing Commission today introduces its new Interactive Sourcebook. The Interactive Sourcebook allows users to re-create and customize the tables and figures presented in the Commission's printed Sourcebooks of Federal Sentencing Statistics, and contains additional viewing options and tables not published in the printed Sourcebooks. Please view the Interactive Sourcebook Features Guide to learn how to use the site. For more information, view the Frequently Asked Questions.
The United States Sentencing Commission's Preliminary Quarterly Data Report for the second quarter of fiscal year 2012 is now available on the Commission's website. The report includes an extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first half of fiscal year 2012. The report also provides an analysis of sentencing trends over five years for several key sentencing practices.
Georgia pardon board rejects capital clemency for mentally disabled murderer
As reported in this Reuters article, "Georgia's pardons board refused on Monday to stop the execution of a two-time murderer whose lawyers argued should have his life spared because he is mentally disabled." Here is more:
Former U.S. President Jimmy Carter and his wife, Rosalynn, were among those who wrote to the state Board of Pardons and Paroles requesting clemency for Warren Lee Hill, who is set to die by lethal injection on Wednesday for beating another inmate to death in 1990. At the time of the murder, Hill, 52, was serving a life sentence for the 1986 shooting death of his girlfriend.
In a series of failed appeals, Hill's attorneys have argued that his execution should be halted because he suffers from what they termed mental retardation. The pardons board rejected Hill's clemency petition with little comment. "After considering the request, the Board has voted to deny clemency," it said in a statement.
The decision drew a sharp response from Hill's attorney, who presented testimony at a pardons hearing on Friday from the inmate's family members and a teacher. They said they had seen evidence of Hill's limited mental capacity since his childhood. "I am horrified and outraged by the Board's decision to deny clemency for Warren Hill, a man found by numerous experts, including the state's experts, as well as the courts to be mentally disabled," said attorney Brian Kammer, who sought to have Hill's sentence reduced to life in prison.
In 1988 Georgia became the first U.S. state to ban the execution of mentally disabled defendants. But Georgia has one of the toughest standard in the nation for defining mental retardation, requiring proof "beyond a reasonable doubt"....
I expect Hill's lawyers will now make a full-throated appeal to the Supreme Court to try to get it to take up the process for Georgia uses to consider Atkins claims. I would put the odds of a SCOTUS stay at about 40/60 against.
Some recent related posts:
- Shouldn't SCOTUS review Georgia's uniquely tough application of Atkins?
- Commentator laments "A Day in the Life of the Death Penalty: July 18, 2012"
New York Times editorial laments increases in "Disenfranchised Felons"
Providing a fitting follow-up to a recent report by The Sentencing Project (blogged here), today the New York Times has this new editorial complaining about the continued growth of "Americans who cannot vote because they have been convicted of a felony." Here are excerpts:
The Sentencing Project reported Thursday that in 2010 5.5 million voting-age citizens were disenfranchised because of their criminal records, up by 9 percent from 2004.
About a quarter are in prison, but the rest have completed their sentences or are on probation or parole. The only reason not to let them vote is to stigmatize them or to continue punishing them. Only Maine and Vermont impose no voting restrictions on felons or ex-felons. The other states impose various restrictions, with 11 states (six in the South) banning ex-felons from voting even after they have completed prison and probation or parole.
These limits are seriously counterproductive. Former offenders who are allowed to vote are less likely to return to prison and more likely to become reintegrated into their communities. Public opinion and efforts by some states to restore voting rights to ex-felons in some circumstances reflect that view. But because the justice system locks up so many people every year, many more people lose their voting rights than benefit from the state efforts.
The disproportionate number of blacks among the disenfranchised remains a huge racial justice problem. Almost 7.7 percent of blacks of voting age are disenfranchised because of their criminal records, compared with less than 2 percent for non-blacks. This stripping of black voting rights is linked to their disproportionate number in the criminal system — blacks make up 38.2 percent of the prison population, though they account for only 12.6 percent of the general population.
Recent related post:
"Medical Marijuana Laws and Teen Marijuana Use"
The title of this post is the title of this new empirical paper authored by a group of scholars and available via SSRN. Here is the abstract:
While at least a dozen state legislatures are considering bills to allow the consumption of marijuana for medicinal purposes, the federal government has recently intensified its efforts to close medical marijuana dispensaries. Federal officials contend that the legalization of medical marijuana encourages teenagers to use marijuana and have targeted dispensaries operating within 1,000 feet of schools, parks and playgrounds. Using data from the national and state Youth Risk Behavior Surveys, the National Longitudinal Survey of Youth 1997 and the Treatment Episode Data Set, we estimate the relationship between medical marijuana laws and marijuana use. Our results are not consistent with the hypothesis that legalization leads to increased use of marijuana by teenagers.
First Circuit affirms (way-)below-guideline sentence for Big Dig white-collar offenders
Because I am on the road throughout July, I fear I may miss some notable circuit sentencing opinions. Thus, I am especially grateful that a helpful reader alerted me to the especially noteworthy opinion handed down by the First Circuit late last week in US v. Prosperi, No. 10-1739 (1st Cir. July 13, 2012) (available here). Here is how the lengthy Prosperi opinion starts:
The United States challenges the sentences imposed on appellees Robert Prosperi and Gregory Stevenson after their conviction of mail fraud, highway project fraud, and conspiracy to defraud the government. Both appellees were employees of Aggregate Industries NE, Inc. ("Aggregate"), a subcontractor that provided concrete for Boston's Central Artery/Tunnel project, popularly known as the "Big Dig." The government charged that over the course of nine years Aggregate knowingly provided concrete that failed to meet project specifications and concealed that failure by creating false documentation purporting to show that the concrete provided complied with the relevant specifications. Several employees of Aggregate, including Prosperi and Stevenson, were convicted of criminal offenses for their roles in the scheme.
At sentencing, the district court calculated the guidelines sentencing range ("GSR") for Prosperi and Stevenson as 87- to 108-months incarceration. Then, explaining fully its rationale for a below-guidelines sentence, the court sentenced Prosperi and Stevenson to six months of home monitoring, three years of probation, and 1,000 hours of community service. The government now appeals, arguing that under Gall v. United States, 552 U.S. 38 (2007), the sentences imposed by the district court were substantively unreasonable and that the appellees' crimes warrant incarceration.
We affirm. Although the degree to which the sentences vary from the GSR gives us pause, the district court's explanation ultimately supports the reasonableness of the sentences imposed. The district court emphasized that its finding on the loss amount caused by the crimes, the most significant factor in determining the GSR, was imprecise and did not fairly reflect the defendants' culpability. Hence it would not permit the loss estimate to unduly drive its sentencing decision. Relatedly, it found that there was insufficient evidence to conclude that the defendants' conduct made the Big Dig unsafe in any way or that the defendants profited from the offenses. The court then supplemented these critical findings with consideration of the individual circumstances of the defendants and concluded that probationary sentences were appropriate. We cannot say that it abused its discretion in doing so.
As this introduction suggests, the (unanimous) Prosperi opinion discusses lots of loss issues and ultimately affirms the district court's desire and decision to give little weight to what it saw as an inflated loss calculation. For this reason and others, Prosperi is a must-read not just for white-collar federal sentencing practitioners, but for all those still unsure about the scope of sentencing discretion in the post-Booker world.
July 16, 2012 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
July 15, 2012
Are bail conditions increasingly being used to impose pre-conviction punishments?
The question in the title of this post is prompted by this notable new op-ed authored by Professors Dan Markel and Eric Miller appearing the New York Times. Here are excerpts:
In May, a federal judge ordered the pretrial release of an alleged robber on the condition that he read and write book reports for 90 minutes daily. Earlier this year, a trial judge directed a domestic violence defendant, again as a condition of pretrial release, to buy his wife flowers and take her out for bowling and supper at Red Lobster. And just last week, in Florida, a county judge’s new bail order forbade George Zimmerman, who claims self-defense in the death of Trayvon Martin, to drink alcohol or go out after 6 p.m.
Of course, these orders are not themselves grave injustices, but they all raise similar and serious legal questions. They spotlight a pervasive phenomenon hiding in plain sight: the abuse of bail and other pretrial release powers for punitive and rehabilitative purposes.
Before anyone is proven guilty in a court of law, the Constitution extends the presumption of innocence. That presumption is at odds with the kinds of pretrial conditions described above....
This judicial paternalism persists in part because state and municipal judges, who handle the overwhelming number of criminal cases, face less public scrutiny than federal judges. But a bigger problem is that there is no widely established right to counsel at the bail stage. Accordingly, the judge gets to interact directly with the defendant, without the interference of “pesky” lawyers. Even when defense lawyers are present, they don’t make a stink over these improper conditions to avoid the risk of having bail for their clients denied altogether. They figure that at least the defendants will get out of jail, rather than having to cool their heels inside.
It’s understandable for judges to want to attack the social problems they see in the criminal justice system. The problem — besides the obvious issue of assigning punishments to people who might not even be convicted of crimes — is that they are thinking up untested responses on a case-by-case basis. This leads to disparities and fragmentation of penal policy even within jurisdictions; increased scrutiny of suspects at a stage when they should be free to build their defense against the government; and an imposition of the values of the temperance movement on the criminally accused (since even lawful and moderate consumption of alcohol is frequently prohibited). Perhaps most disconcerting is how easy it becomes for regular people to violate these unreasonable bail conditions, which leads to unnecessary arrests and even more overcrowded prisons.
Pretrial release raises complicated legal and policy issues in every case. Still, our core concern is that many judicial release orders exhibit confusion about or disregard for the distinction between pretrial release and post-conviction punishment. Judges determining pretrial release are not authorized to act as social workers or agents of public retribution. They need to stop pretending otherwise.
Record(?)-long sentence of 1,256 years(!) imposed on Colorado bank robber
As reported in this local article, headlined "Convicted bank robber gets 1,256 years in prison," a repeat offender in Colorado state court was given a sentence longer than any sentence I can ever recall. Here are the details:
After serving part of a six-year sentence for a 2003 bank robbery, parolee Daryl Lamont Keener went right back to his old tricks, authorities say, joining an accomplice in eight more bank heists in Colorado Springs. It’s unlikely there will be a repeat performance.
Keener, 31, was sentenced Friday to 1,256 years in prison -- a result of Colorado’s stiff sentencing for repeat criminals and one of the most severe penalties in El Paso County’s recent history. “It’s shocking,” said Shimon Kohn, a defense attorney unaffiliated with the case. “I’ve been practicing criminal law in this jurisdiction since 2000, and I’ve never heard of these kinds of numbers, ever.”...
Police described Keener as a “career criminal” in announcing his March 2011 arrest, and detailed terrifying scenes in which Keener and a second man took turns storming into banks and ordering people onto the floor at gunpoint. The men were arrested after detectives linked them to a getaway car captured on tape by a surveillance camera as it fled a March 3, 2011....
Among Keener’s charges related to the spree were multiple counts alleging he is a “habitual offender” – a sentence enhancer with the potential to quadruple penalties. Under Colorado’s sentencing laws, the multiplier would apply to each named victim in every bank robbed by Keener. Getting to a total in excess of 1,200 years, however, required Judge Prince to exercise his discretion to stack those sentences rather than rolling all eight robberies together for a single triple-digit sentence.
Unless Colorado has some automatic mechanism for reducing time served, as of this writing Daryl Lamont Keener's proejected release date is now the year 3286! Or, to put a sentence of this number of years into a slightly different perspective, such a long sentence would be concluding now if an offender had gotten sentenced to this extreme term in the year 756.