September 1, 2012
"Changes in Community Supervision Offer the Get into Jail Free Ticket"The title of this post is the title of this new paper available via SSRN by Paige Jann. Here is the abstract:
California traditionally had two types of community supervision, probation and parole. While probation generally consisted of a sentence given in lieu of prison with incarceration as a consequence for violating its terms, parole instead consisted of a term of supervision following an individual’s prison sentence. However, the recent passage of The Criminal Justice Realignment Act (AB 109) drastically changed the landscape of community supervision by shifting the responsibility of supervising certain offenders from the state to the county level. Companion legislation also amended California Penal Code section 1170(h) to include a new sentencing option called a split sentence, whereby a court can craft a sentence that combines both a period of local incarceration and mandatory supervision. Ultimately, Realignment legislation combined the oversight of parole, probation, and split sentencing all into one unified agency: county probation departments. A lingering question now remains as to whether each of these very different programs may suffer under such a unification.
This paper examines California’s scheme of felony sentencing and community supervision prior to Realignment, as well AB 109’s various changes to these areas. Further, this paper critically examines the idea of entrusting all community supervision to one department. These critiques suggest a resulting paradox where offenders may prefer harsher sentencing alternatives over probation because it is more difficult to graduate from the latter. Finally, this paper concludes that oversight of community supervision may be incapable of integration, and that each program may instead require individual attention. Realignment and its accompanying legislation have drastically transformed California’s criminal justice system. Examining the extent to which 1170(h) augments county probation departments’ responsibilities may reveal the potential struggles that lie ahead and offer guidance in further implementation of these changes.
August 31, 2012
SCOTUS grants cert on yet another ACCA dispute over predicate offensesLyle Denniston has this effective report on two new cases in which the Supreme Court has today granted cert, and here is the discussion of the one sentencing case:
The Court’s order granting review of the burglary case involves the use of a state burglary conviction as a basis for enhancing a sentence for a federal crime under the Armed Career Criminal Act. The case involves a Spokane, Wash., man, Matthew Robert Descamps, who was convicted of the federal crime of being a felon who had a gun illegally. He was sentenced under that Act to 262 months in prison, based in part on a 1978 conviction — a guilty plea — for the burglary of a grocery store in California, treating that conviction as one for a “violent felony.”
In his petition, Descamps’s lawyers argued that the burglary conviction should not count in the sentencing calculation, because the California law at issue does not include the element of entering or remaining illegally at the site of the alleged crime. That omission, the petition claimed, means that the crime does not fit the definition of “generic burglary.” The Ninth Circuit, however, supplied that element, finding that burglary under the California law at issue in Deschamps’s case is broader than “generic burglary,” and thus counts under the ACCA.
The U.S. Solicitor General had urged the Court not to hear Descamps’s case, even though the government conceded that there is some disagreement among lower courts on when a federal court may supply a missing element of a crime, using what is technically called the “modified categorical approach.” The Solicitor General said that conflict predates a definitive ruling on the issue by the Ninth Circuit, so Supreme Court review at this point would be premature.
Drawing process lessons from high-profile sentencing after college killing in VirginiaThe high-profile homicide case emerging from the University of Virginia, in which George Huguely was convicted of second-degree murder in the beating death of his former girlfriend Yeardley Love, culminated in a Virginia state sentencing proceeding yesterday. This extended ABC News report provides considerable sentencing details:
A Virginia judge today sentenced convicted University of Virginia murderer George Huguely V to 23 years in prison for the beating death of his ex-girlfriend Yeardley Love. He will serve 23 years, plus one concurrent year for the grand larceny conviction, ruled Judge Edward Hogshire of Charlottesville Circuit Court. He also ordered three years of probation after the 23....
Huguely's attorneys told reporters outside the court that they plan on appealing both the conviction and the sentence. "Our client, Mr. Huguely, remains optimistic," the attorneys said.
In a statment, the Huguely family wrote, "Today is a sad day for our family. The past twenty-eight months have been the most difficult in our lives. We love George and will always support him." They maintained that Love's death was "an accident with a tragic outcome," and said that, "Yeardley will always be in our hearts."
Love's mother and sister, Sharon and Lexie Love, also released a statement in which they thanked prosecutor David Chapman and everyone who helped them through the past two years. "We find no joy in others' sorrow. We plan to work diligently through the One Love Foundation to try and prevent this from happening to another family," they wrote....
Huguely's attorneys asked a Virginia judge today to consider reducing the former University of Virginia athlete's sentence to 14 years in prison, from the 26 years recommended by a jury. The judge cut the recommended sentence by three years.
The prosecution and defense both called multiple witnesses to the stand for the sentencing, including former classmates, Huguely's aunt and a priest.
Rev. Joseph Scordo said he has visited Huguely in jail every Monday for a half-an-hour for the past two years. Scordo described Huguely as "spiritual" and said the two spoke freely about "faith, prayer, life, religion, family, UVA, sports." Scordo said he has never asked Huguely about the night of Love's death, but that Huguely frequently says, "I want the truth. I want the truth to come out. I have a lot of hope in Him, in God."
The prosecution's witnesses painted Huguely as a violent young man who struggled with his temper and alcohol. Huguely's former lacrosse teammate Gavin Gill told the court that he vividly remembered waking up to Huguely on top of him in bed, beating him up after he had left a party the previous night with Love.
The jury recommended 25 years in prison for the second-degree murder conviction and one year for a grand larceny conviction resulting from an allegation that Huguely stole Love's laptop computer.
Huguely's defense attorneys wrote that sentencing guidelines for convictions of second-degree murder and grand larceny "considering Mr. Huguely's negligible criminal record" recommend a sentence of 14 to 23 years. "Beyond the obviously tragic outcome, there are no facts in this case sufficiently aggravating to warrant a sentence above the low end of the guidelines or a sentence inconsistent with those imposed across the Commonwealth for like offenses," the defense wrote. Court documents filed on Wednesday by Huguely's defense team include numerous personal accounts from family and friends praising Huguely and asking for leniency
Huguely killed Love, 22, in a drunken rage in May 2010 just weeks before she was to graduate from the University of Virginia. Both Huguely and Love were star lacrosse players on the university's elite teams. Huguely faced six charges, including first-degree murder, in Love's death.
Over 10 days in court, jurors listened to testimony from nearly 60 witnesses and saw a video of Huguely's police statement, graphic photos of Love's battered body, and read text and email correspondence between the two. Though charged with first-degree murder, the judge gave jurors a menu of lesser charges they could from: second-degree murder, voluntary manslaughter and involuntary manslaughter.
Neither the prosecution nor the defense denied that Huguely was in Love's room the night of her death and was involved in an altercation with her. They differed on the severity of the encounter and whether Huguely was directly and intentionally responsible for Love's death.
Though I am not well-versed in Virginia sentencing procedures, it is my understanding that the sentencing judge here could not have increase Huguely's sentence above what was recommended by the jury, but rather only had authority to reduce the sentence. And it appears that advisory sentencing guidelines (including, I believe, an evidence-based risk assessment instrument) provided recommendations to the judge (along with arguments from the parties, of course) as to whether and how much he might reduce the sentence below the jury's recommendation.
Without making any judgments on the Huguely sentencing outcome, I have to express great respect and confidence in the Virginia state sentencing process because of all the perspectives that get brought to bear. The jurors and judge who heard all the trial evidence along with additional sentencing information both have a significant and independent role in the process, and the final sentence is informed not only by arguments from the litigants but also by advisory guidelines reflecting systemic and evidence-based judgments by the Virginia's elected officials and its expert sentencing commission. At least on paper and as a fair and transparent process, this seems like a pretty darn good sentencing decision-making system all around.
Special issue of JRP on "Evidence-Based Policy and Practice"Via an e-mail, I just learned that the Justice Research and Policy, which isthe semiannual, peer-reviewed journal of the Justice Research and Statistics Association, has just published this new special issue focused on "Evidence-Based Policy and Practice." The issue's extended introduction by Roger Przybylski is available at this link, and here are two notable paragraphs from its start:
The emergence of the evidence-based movement is arguably one of the most significant developments to occur in criminal and juvenile justice over the past 20 years (Travis, 2012; Lipsey, Howell, Kelly, Chapman, & Carver, 2010; and the Howell and Lipsey article in this special issue). In the early 1990s, the term “evidence-based” was largely unknown in the criminal and juvenile justice communities. Looking back, it is difficult to imagine how any of us at that time could have envisioned how the evidence-based movement would affect crime control policymaking, practice, and even research in the coming years. Today, the imprint of the movement is widespread. Crime control policy and program development processes are increasingly being informed by scientific evidence, and many practices in policing, corrections, delinquency prevention, and other areas have been, and continue to be, shaped by evidence generated through research. Incentives and even mandates for evidence-based programming are now frequently used by funding sources, and virtually anyone can now access an unprecedented amount of information about what works to prevent and control crime using online repositories such as CrimeSolutions.gov. Moreover, the demand for trustworthy, research-generated evidence and evidence-based applications is rapidly increasing....
Despite the intuitive appeal of using science to guide policy and practice, it would be wrong to assume that crime control and prevention efforts have become largely evidence-based. Granted, there is growing interest in evidence-based ways to address crime problems, and numerous jurisdictions and organizations have made progress implementing evidence-based programs, practices, or policy reforms, but much of what we do in criminal and juvenile justice continues to be based on tradition, ideology, anecdote, or conventional wisdom. Of course, legislators, police chiefs, correctional administrators, and other decisionmakers have to contend with many influences and constraints when making policy decisions, and debates about the role science should play in decisionmaking are legitimate and often beneficial, but it is still far too common to encounter situations in which scientific evidence is ignored or paid little more than lip service.
August 30, 2012
California Supreme Court upholds 25-to-life term for sex offender's failure to register as third strikeThe California Supreme Court issued a lengthy and nuanced Eighth Amendment ruling today rejecting an offender's appeal of his three-strikes sentence following his conviction for failing to update his sex offender registration. These paragraphs from the start of the majority opinion in In re Cooley, No. S185303 (Cal. Aug. 30, 2012) (available here), reveal the essentials (and the nuances) of the ruling:
[I]n People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony II), a panel of the California Court of Appeal, Third Appellate District, concluded in a two-to-one decision that a 25-year-to-life sentence under the Three Strikes law constituted cruel and/or unusual punishment, in violation of the federal and state Constitutions, as applied to a defendant whose triggering offense was the failure to annually update his sex offender registration within five working days of his birthday. The defendant in Carmony II had properly registered as a sex offender at his current address one month before his birthday, had continued to reside at the same address throughout the relevant period, had remained in contact with his parole agent, and was arrested at that same address by his parole agent one month after his birthday. Observing that "because defendant did not evade or intend to evade law enforcement officers, his offense was the most technical and harmless violation of the registration law we have seen" (127 Cal.App.4th at p. 1078), the majority opinion in Carmony II concluded that, notwithstanding the defendant‘s record of serious prior offenses, the imposition of a 25-year-to-life sentence was grossly disproportionate to the gravity of the defendant‘s offenses and violated the constitutional prohibition of cruel and/or unusual punishment. Thereafter, a three-judge panel of the United States Court of Appeals for the Ninth Circuit, addressing a cruel and unusual punishment claim in a factual setting very similar to that presented in Carmony II, reached the same conclusion as the California appellate court in Carmony II. (Gonzalez v. Duncan (9th Cir. 2008) 551 F.3d 875.)
In the present habeas corpus proceeding, a panel of the Court of Appeal, Second Appellate District, Division Five, considering the constitutionality of a 25-year-to-life sentence imposed upon a defendant who also was convicted of failing to update his sex offender registration within five working days of his birthday, expressly disagreed with the analysis and conclusion of the appellate court in Carmony II and held that the punishment was constitutionally permissible. In light of the conflict in the two Court of Appeal decisions, we granted review.
We agree with the Court of Appeal in the present case that imposition of a 25-year-to-life sentence upon petitioner in this matter does not constitute cruel and unusual punishment in violation of the federal Constitution, but, for the reason discussed more fully hereafter, we conclude that we need not and should not rest our holding upon a determination that the Court of Appeal opinion in Carmony II was wrongly decided. The conduct of petitioner in this case, as found by the trial court, is clearly distinguishable in a significant respect from the conduct of the defendant in Carmony II. Unlike the defendant in Carmony II, who had very recently registered at his current address and who the Court of Appeal found "did not evade or intend to evade law enforcement officers" (Carmony II, supra, 127 Cal.App.4th at p. 1078), the trial court in this case, in refusing to strike any of petitioner‘s prior convictions and in imposing a 25-year-to-life sentence under the Three Strikes law, found that petitioner‘s triggering offense was not simply a minor or technical oversight by a defendant who had made a good faith effort to comply with the sex offender registration law. Rather, the court found that petitioner had never registered as a sex offender at his current address and had knowingly and intentionally refused to comply with his obligations under the sex offender registration law.
Petitioner‘s conduct, as found by the trial court, demonstrated that, despite the significant punishment petitioner had incurred as a result of his prior serious offenses, he was still intentionally unwilling to comply with an important legal obligation, and thus his triggering criminal conduct bore both a rational and substantial relationship to the antirecidivist purposes of the Three Strikes law. Given that relationship and the extremely serious and heinous nature of petitioner‘s prior criminal history, we conclude that, under Ewing, supra, 538 U.S. 11, the imposition of a 25-year-to-life sentence does not constitute cruel and unusual punishment under the circumstances of this case. In light of the facts underlying the offense in this case as found by the trial court, we need not decide whether the Eighth Amendment prohibits the imposition of a 25-year-to-life sentence under the Three Strikes law in a factual situation like that in Carmony II, in which a defendant had properly registered his current residential address and demonstrated a good faith attempt to comply with the sex offender registration law but due to a negligent oversight had failed to update his registration within five working days of his birthday.
Media request for personal stories from those strugging with collateral consequencesI received this evening a request to help identify persons struggling with the negative collateral consequences of a criminal conviction. The request came from Catherine Day, a producer at HuffPost Live, a new online broadcast network and expansion of the Huffington Post community, and here are the specifics she provided:
On Tuesday, as part of our coverage of the DNC Shadow Convention we will be hosting a live discussion called "Opportunity Lost: Affirmative Access" which will be about how people convicted of nonviolent crimes, such as drug felons are not able to break the negative cycles in their lives due to the loss of access they have to student loans and federal housing.
We need to find guests who would like to share their personal story about how their criminal conviction has made it nearly impossible for them to improve their life due to the inability to afford schooling or housing. In order to participate in this discussion, each guest needs to be able to have access to a webcam with a strong internet connection on Tuesday at approximately 1:30 PM EST. We would need to do a camera test in advance at the same computer and in the same location that the guest would be for the segment to make sure everything works alright.
If you would like to share your story, and be a part of this very important discussion on this broken part of our country, please email me at Catherine.Day@huffingtonpost.com.
Fourth Circuit vacates LWOP sentence for illegal gun possession premised on uncharged murderA Fourth Circuit panel handed down an an intricate set of opinions today in US v. Horton, No. 11-4052 (4th Cir. Aug. 30, 2012) (available here). The ruling provides yet another reminder that, despite the Supreme Court's work in Blakely now more than 8 years ago, federal defendants still frequently face much longer sentences based on questionable judicial fact-finding by a perponderance of evidence under the federal sentencing guidelines. In Horton, however, the defendant got a break thanks to the Fourth Circuit view of how the guidelines should be applied, as this first paragraph from the majority opinion reveals:
Timothy Tyrone Horton appeals his conviction for possessing a firearm while a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924, and also appeals the district court’s imposition of a sentence of life imprisonment. For the reasons set forth herein, we affirm Horton’s conviction. We conclude, however, that the district court erred in applying the murder cross-reference provision in United States Sentencing Guidelines Manual ("USSG" or "Guidelines") § 2K2.1(c)(1) and in treating as relevant conduct a murder that occurred during the course of an unrelated and uncharged offense, which error substantially increased Horton’s advisory Guidelines range. Accordingly, we vacate Horton’s sentence and remand for resentencing.
Despite (suspect?) commutation, Iowa judge grants post-Miller relief for juve killer sentenced to LWOPAs reported in this local article from Iowa, which is headlined "Jeffrey Ragland, sentenced to life at 17, may soon be a free man," a defendant in Iowa convicted of murder and sentenced to life without parole back in 1986 may now be getting a shot a freedom thanks to the Supreme Court's Eighth Amendment work a few months in Miller. Here are the details:
For the first time in nearly 26 years, there is a light at the end of the tunnel for Jeffrey Ragland. Fourth District Judge Timothy O'Grady said Tuesday that Ragland should be eligible for parole immediately, after ruling that his life sentence without parole for the 1986 murder of 19-year-old Timothy Sieff was cruel and unusual punishment....
In 1986, a jury found Ragland, then 17, guilty of first-degree murder. Sieff died of head injuries after being struck with a tire iron during a fight in a supermarket parking lot. Ragland's friend Matthew Gill wielded the tire iron. Two other teens also were charged in the assault.
Gill and the two other teens accepted plea bargains. Gill pleaded guilty to second-degree murder and was sentenced to 50 years in prison. He was paroled after three years.
Iowa City attorney Jon Kinnamon, who represented Ragland along with Council Bluffs attorney Tom Lustgraaf, said he realized that there is tragedy in the incident: “Timothy Sieff was the recipient of a greater injustice.” Still, he said, the time that Ragland has spent in prison compared with Gill is inappropriate.
The Iowa Supreme Court ruled in March that Ragland could challenge his sentence and seek a ruling on whether it constituted cruel and unusual punishment under the state and federal constitutions. That hearing was put on hold, however, until after the U.S. Supreme Court had addressed a similar matter. In June, the U.S. Supreme Court ruled it unconstitutional for a state to require a juvenile convicted of murder to be sentenced to life in prison without parole. The court's 5-4 ruling left open the possibility that a judge could sentence a juvenile to a life term in an individual case but said state law cannot automatically impose such a sentence.
After the Supreme Court decision, Iowa Gov. Terry Branstad commuted the mandatory life sentences of 38 convicted killers who committed their crimes as juveniles. The governor's action changed the sentences from life without the possibility of parole to life sentences that allow parole after 60 years have been served behind bars.
O'Grady said Tuesday that Branstad's commutation does not fit with the intent of Iowa law, which says a person under age 18 who commits a Class A felony is eligible for parole after serving a minimum of 25 years in prison. “I believe Mr. Ragland is eligible for parole now after serving 25 years in prison,” O'Grady said. “The decision whether or not or when it is granted rests with the Board of Parole.”
This article reinforces my sense that the equities of each individual juve murder case will often, directly or indirectly, whether an how a defendant now garners relief from the Supreme Court ruling in Miller. Based on this press report, it appears that the defendant in this Iowa case was involved in a killing which was, relatively speaking, not among the most aggravated, and for which other defendants received significantly less punishment. As a result, it seems that local prosecutors did not strenuously resist the defendant getting some benefit from the Miller decision.
I suspect there will be (many?) much more aggravated murder cases, in Iowa and elsewhere, in which a local prosecutor will be much more eager to argue against a juvenile killer getting any kind of revised sentence. When that happens, not only might a trial judge be less likely to rule in the defendant's favor, but prosecutors may then be more eager to challenge any granted relief on appeal.
"Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization"The title of this post is the headline of this new article by Professor Michal Buchhandler-Raphael now available via SSRN. Here is the abstract:
The American criminal justice system is under tremendous pressures, increasingly collapsing under its heavy weight, thus requiring inevitable change. One notable feature responsible for this broken system is over-criminalization: the scope of criminal law is constantly expanding, making individuals liable to conviction and punishment for an ever-wider range of behaviors. One area where over-criminalization is most notable concerns victimless crimes, namely, individuals who engage in consensual conducts which inflict only harm on themselves but not on third parties, such as prostitution, pornography, sadomasochism, gambling, and most notably, drug crimes.
Despite increasing scholarly critique of the continued criminalization of these behaviors, particularly drug offenses, significant limits on the scope of victimless crimes have not yet been adopted. Two features characterizing criminal law account for this: first, in contrast with criminal procedure, constitutional law has not placed any significant limits on substantive criminal law, and second, there is no coherent theory of criminalization that sets clear boundaries between criminal and non-criminal behaviors.
This article proposes a constitutional constraint to limit criminalization of victimless crimes, and particularly to alleviate the pressures on the criminal justice system emanating from its continuous “war on drugs." To accomplish this goal, the article explores the concept of human dignity, a fundamental right yet to be invoked in the context of substantive criminal law. The U.S. Supreme Court’s jurisprudence invokes conflicting accounts of human dignity: liberty as dignity, on the one hand, and communitarian virtue as dignity on the other. However, the Court has not yet developed a workable mechanism to reconcile these competing concepts in cases where they directly clash. The article proposes guidelines for balancing these contrasting interests and then applies them to drug crimes, illustrating that adopting such guidelines would result in constraining the scope of substantive criminal law.
More wrongful federal gun convictions and sentences being remedied in North Carolina
As reported in this local piece, headlined "Judge rules five inmates wrongly sentenced on gun charges," a federal judge in North Carolina has ordered more relief for defendants wrongly charged as a felon for possessing firearms. This action comes in the aftermath of the story blogged here and well covered by USA Today concerning many persons serving federal time for gun possession crimes that are no longer crimes in the wake of an important recent Fourth Circuit ruling. Here are the details:
Civil libertarians and defense attorneys were heartened Wednesday when a federal judge vacated convictions of two men wrongly imprisoned on gun-related charges without any challenge from prosecutors. U.S. District Judge Terrence Boyle also reduced sentences for three other federal inmates seeking relief after a 2011 U.S. Court of Appeals case decision effectively changed the definition of who could be considered a felon.
Boyle’s rulings came several weeks after the U.S. Department of Justice told prosecutors to stop using procedural grounds to block legitimate appeals for relief....
For many years, the federal courts in North Carolina treated defendants as felons when their criminal records were not serious enough for that designation, according to the Fourth Circuit Court of Appeals case known as the United States vs. Simmons....
The American Civil Liberties Union and the ACLU of North Carolina Legal Foundation have been working in recent months to identify which prisoners are either wrongfully incarcerated or serving unnecessarily long sentences because of the quirk in North Carolina sentencing laws highlighted in the federal court of appeals ruling.
The federal government defines a felony as a crime punishable by death or imprisonment in excess of a year, and someone convicted of such a crime is a felon. But the federal courts in North Carolina were treating defendants as felons when their criminal records were not serious enough for that to be the case, the Fourth Circuit Court of Appeals found. As a result, a person with a less serious criminal record could be sentenced as if he had a lengthy one.
Though civil libertarians and defense attorneys would like more help from the federal government identifying hundreds of inmates caught in the ruling, they lauded the decisions on Wednesday. “It’s certainly encouraging the government is no longer standing in the way of folks who are already bringing appeals,” said Christopher Brook, legal director of the ACLU of North Carolina. “I would label this as a positive first step. There need to be a number of other steps before we get comprehensive justice.”
- "Scores in N.C. are legally 'innocent,' yet still imprisoned" due to federal gun laws
- Wrongful federal gun convictions finally getting undone in North Carolina
August 29, 2012
Oh what a higher sentence she received, when found to have pleaded to deceiveWith apologies to Sir Walter Scott, but I could not help but think of his famed quote about tangled webs upon reading the Seventh Circuit's work today in US v. Grigsby, No. No. 11-2473 (7th Cir. Aug. 29, 2012) (available here). Here is how the lengthy opinion, which covers lots of notable sentencing issues thoroughly, gets started:
Especially because two of the defendant's co-conspirators received sentences of 18 months or lower in this case, it would appear that the defendant's foolish decision to lie during her plea colloquy about her role in the offense might well have resulted in her serving at least two or three extra years in federal prison. That is certainly what I would call a costly lie.
Over the course of seven months, Jeanette Grigsby and several coconspirators planned and executed two bank heists, stealing more than a halfmillion dollars from the bank where Grigsby worked as a teller. After federal agents uncovered the inside jobs, Grigsby was indicted on two counts of entering a federally insured bank for the purpose of committing a felony. See 18 U.S.C. § 2113(a). She pleaded guilty without a plea agreement to the first count and later stipulated through counsel that she committed the second crime as well. With that, the government moved to dismiss the second count.
In her sworn statement to the court, however, Grigsby minimized her role in the offense, trying to pin most of the blame on her coconspirators. So at sentencing the district court applied a two-level sentencing guidelines enhancement for obstruction of justice, see U.S.S.G. § 3C1.1, and a three-level enhancement to account for her supervisory role in the offense, see id. § 3B1.1(b). The resulting guidelines range was 46 to 57 months, and the court chose a sentence of 57 months, the top of the range. Grigsby appeals, arguing that the court erroneously applied the two enhancements, and also that her sentence is procedurally defective and substantively unreasonable under 18 U.S.C. § 3553(a).
We affirm. Both enhancements were based on the court’s factual finding that Grigsby lied during her plea colloquy in an intentional effort to mislead the court by understating her role in the offense. Although this finding was based largely on documentary evidence — the grand-jury testimony and plea agreements of two of Grigsby’s coconspirators — our review remains deferential; we will reverse only for clear error. See 18 U.S.C. § 3742(e). The court’s factual finding that Grigsby lied about her role in the offense because she did in fact supervise the scheme is well-supported by the evidence and specific enough to withstand clear-error review. The court also sufficiently considered the § 3553(a) sentencing factors and was not required to specifically address Grigsby’s routine arguments for a below-guidelines sentence. Finally, Grigsby’s within-guidelines sentence — 57 months for an inside bank-robbery scheme that caused a significant loss — is not unreasonable.
"Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"The title of this post is the headline of this lengthy and effective new article in the latest issue of the ABA Journal. Here is a small excerpt from a piece that merits a full read for any and everyone concerned with issues surrounding child porn sentencing or restitution punishment:
Under the Crime Victims’ Rights Act, the government must notify Amy and other child pornography victims anytime anyone is arrested by federal authorities for possessing their images. Her attorney, James Marsh of New York City, says his office has received at least 1,500 required notices of federal prosecutions for possession of those images. “The day after we were retained in 2008, we had someone open up all these notices she received in the calendar years 2006 and 2007,” Marsh says. “It took two days just to open the envelopes.”...
The restitution portion of VAWA requires full compensation for victims’ losses, regardless of the defendant’s ability to pay. The D.C. Circuit noted this in April 2011 in U.S. v. Monzel, when it remanded a partial restitution order so the trial court could calculate “the full amount of the victim’s losses.”
However, the full-restitution requirement creates another problem with using VAWA in cases like Amy’s: how to split the restitution payment among all of the defendants who may be charged with possession of the same images. The act provides for joint and several liability among defendants in the same case, but what about defendants in multiple cases, in numbers nobody can predict? How should responsibility be apportioned between each of them, plus the original maker of the child pornography? And how can the justice system track what the victims actually receive?
Legal experts say there’s no precedent for these questions under VAWA or anywhere else in criminal law or in tort law. Several appeals courts have dedicated parts of their opinions to the problem, and federal district courts have struggled, with some developing a flat-rate scheme on their own. These include the Eastern District of California, which in three cases awarded $3,000 per victim, extrapolating from a provision in 18 USC § 2255 that minor victims of sexual exploitation may be deemed to have suffered civil damages no less than $150,000. In another case, a court in the Western District of Washington awarded $1,000 per image in U.S. v. Kennedy (later reduced to zero by the 9th Circuit at San Francisco).
Marsh says it’s his policy to file for full restitution—the full amount of Amy’s lost income, past and future psychiatric treatment, loss of enjoyment of life and attorney fees—in nearly every case, regardless of what other orders his client has received and regardless of the defendant’s means. He says Amy doesn’t care where the money comes from as long as she is made completely whole. He and Carol Hepburn of Seattle, Vicky’s attorney, argue that the system should not put the burden of working out these details on victims. Complicating matters further, Hepburn says, is the problem of collecting. “Just because an order is entered doesn’t mean one is going to get payment,” she points out. “In fact, I can remember early on a prosecutor telling me: ‘I got you a $10,000 order, but good luck getting anything because this guy’s going to get deported after he gets out of jail.’ ”
Even without immigration problems, defendants may have no money left after their defense, and no way of earning it while serving the long prison sentences typical in child pornography cases. Hepburn and Marsh say they receive some large checks as well as a few regular payments from prison wages. In some circumstances, particularly when the defendant is indigent, they may also work out arrangements with prosecutors or defense counsel.
August 29, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack
Prison videoconference visitation program expanding in New YorkThis New York Daily News article, headlined "Videoconference prison visit program set to quadruple in size this fall," reports on the latest technocorrections development in the Empire State. Here are the details:
The fledging program of prison visits via closed-circuit TV — the first one in the state — is set to more than quadruple in size this fall, the Daily News has learned. “The research shows that people will do better when they’ re released if they stay connected with their families,” said Elizabeth Gaynes, executive director of the Osborne Association, a nonprofit that has been conducting the meetings known as televisits for the past two years.
The program has been confined so far to Albion women’ s prison, allowing children to meet with their mothers. It will soon expand to the male-only Auburn, Clinton and Chateaugay facilities, with videoconference rooms added in Manhattan and the Bronx, the state Corrections Department confirmed. “We see it as a complement, if you will, to our visitation process,” said spokesman Peter Cutler. “It’ s been successful, and we’ re confident it’ ll be expanded even further.”
Visiting New York’ s remote prisons, some located more than a 10-hour bus ride away from the city, can be daunting and expensive. A free bus service was discontinued last year, further reducing options to relatives of some 56,000 inmates. Cutler said that those buses were often nearly empty, and that visits dropped by only 5% since they were canceled.
On a recent afternoon, laughter emanated from inside a cheerfully decorated room as Sindy Villanueva, 33, who’s serving a 4.67-to-12-year sentence, chatted with her 9-year-old daughter, Selena Estevec. “Just because we’ re separated from them doesn’ t mean we can’ t be a part of their lives,” Villanueva said....
Families talk on a large-screen TV that looks very much like a computer Skype window. But because most of New York ’s prisons lack Internet connections or cell service (cell phones are considered contraband), facilitating the hookup requires infrastructure work.
The practice of video-streamed visits have been growing around the country in recent years, with some states charging for the service. Last month, Washington, D.C., switched all visitations to televised ones, drawing criticism from some advocates and inmates’ relatives. Corrections officials in New York insisted they intend to keep televisits free — and the prisons open to physical visits.
Gaynes, of the Osborne Association, which assists incarcerated people and their families, said that many clients love the opportunity to see more of their kids, even if it’s through a TV screen. “They’ re like any mother or parent,” she said. “ They worry about their children.”
Reform records notable (though not so far noted) at Republican National ConventionI listened to most of the major speeches during the first night of the Republican National Convention; not surprisingly, I heard no mention of crime and punishment issues. But that does not mean RNC speakers lack notable records on crime and punishment issues, as this post from FAMM Florida Project Director Greg Newburn highlights:
The Republican National Committee's list of speakers for the GOP convention ... [includes many speakers who have] embraced the “Smart on Crime” model ..., and in the process have demolished the tired idea that conservatives aren’t open to common-sense criminal justice reform.
Take Former Arkansas Governor Mike Huckabee, who could never be confused with a liberal. He has argued that “we have not been very successful in incarcerating our way out of the drug problem. We’ve created a bigger problem. Our prisons are teeming with people who don’t need to be incarcerated as full-time inmates . . . I’m not soft on crime. Crime needs to be punished, but realistically, and justly.”...
Ohio Governor John Kasich ... has a lifetime rating of 88% with the American Conservative Union. Governor Kasich made criminal justice reform a priority of his administration, and last year he signed a reform bill designed to “send low-level nonviolent felons to rehabilitation facilities in lieu of prison, put a credit-earned system in place, and adjust prison sentences for drug and petty theft offenses. The package was proposed as a means to save money, reduce recidivism, and ease overcrowding.”...
Another speaker, Former Florida Governor Jeb Bush, recently joined Right on Crime, a group of conservative heavyweights that supports criminal justice reform (including mandatory minimum sentencing reform) and includes Grover Norquist, Newt Gingrich, and Ed Meese. Governor Bush said of the effort, “States across the country, including Florida, are proving that policies based on these sound conservative principles will reduce crime and its cost to taxpayers.”
Oklahoma Governor Mary Fallin worked with Right on Crime, the American Legislative Exchange Council, and Republican legislators to craft a comprehensive Justice Reinvestment bill that included sentencing reforms and is projected to save her state millions of dollars. On signing the bill, Governor Fallin said, “[I]n addition to saving tax dollars, [community sentencing options ] will help nonviolent offenders, many of whom have substance abuse problems, to receive treatment and safely get back into their communities.”
Of all the speakers at the convention, Senator Rand Paul might be the most vocal critic of mandatory minimum sentencing. Not only has Senator Paul blocked federal drug legislation because it contained mandatory minimums, he’s said on the record that “On mandatory minimums, I don’t think teenagers accused of possessing drugs should get twenty years in prison. I’ve fought to get rid of this.”
Perhaps most notably, New Jersey Governor Chris Christie said recently that “[t]he war on drugs, while well-intentioned, has been a failure.” Christie signed reform legislation designed to reduce New Jersey’s reliance on incarceration in drug cases, and made the case that such reforms go beyond saving money: “If you're pro-life, as I am, you can't be pro-life just in the womb,” he said. “Every life is precious and every one of God's creatures can be redeemed, but they won't if we ignore them.”
Across the country, conservatives understand that criminal justice systems should be subject to the same analysis as every other area of public policy. They realize we spend far too much on incarceration and receive far too little in return. Thankfully, some of the GOP’s “brightest stars” have made criminal justice reform a part of governing and leading “effectively and admirably.” It’s good to see the Republican Party not only embracing such reforms, but also rewarding the conservative leaders in criminal justice reform with a chance to share their views at the convention.
Some recent and older related posts:
- Could Romney appeal to independents and minorities with bold crime and punishment vision?
- A Beastly articulation of my (foolish?) hope candidate Romney might embrace the Right on Crime movement
- Marijuana legalization advocate getting warm reception at CPAC
- Ohio's Republican legislature, prodded by Republican gov, enacts major felon reentry reforms
- "The Right Sentencing: Conservatives backtrack on long prison sentences"
- Is it really true that "conservatives and liberals are increasingly united" on criminal justice reform?
- "Right on Crime: The Conservative Case for Reform" officially launches
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
August 28, 2012
"Presumed Guilty"The title of this post is the title of this notable new paper by Professor Terrence Cain now available via SSRN. Here is the abstract:
It would probably surprise the average American that prosecutors need only prove guilt beyond a reasonable doubt sometimes. Although the Due Process Clauses of the Constitution require that the government prove each element of an alleged criminal offense beyond a reasonable doubt, the use of statutory presumptions has relieved the government of this responsibility, and in some cases, has even shifted the burden to the defendant to disprove the presumption. Likewise, the Sixth Amendment grants a criminal defendant the right to have the jury and the jury alone determine whether the government has met its burden and ultimately whether the person is guilty or not. By legislative fiat, statutory presumptions have taken the place of proof, and as a consequence, usurped the jury’s role as the ultimate authority on whether the prosecution has satisfied its burden of proof. These presumptions violate the constitutional guarantees of the right to have the government prove each element of an offense beyond a reasonable doubt and the right to have a jury find all facts necessary to convict.
The Supreme Court has heard this argument before and rejected it. It has not, however, reconsidered it in the aftermath of its decisions in Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker. These cases breathed much needed new life into the Sixth Amendment jury trial guarantee, and in the process put an end to a two decade legislative encroachment on the jury’s historic function as the sole arbiter of whether the government has proved all the essential facts necessary to convict a person of a crime. Apprendi, Blakely, and Booker cast doubt on the validity of statutory presumptions in criminal cases. This article will explain why that is so.
What should a registered sex offender do when running from a hurricane?For anyone who ever wondered what registered sex offenders are supposed to do when a hurricane is headed toward them, the Attorney General of Louisiana has released this helpful notice for those in the path of Isaac:
Under Louisiana law, you are required to notify law enforcement of any changes in residence, including any temporary situation that may cause an absence from your usual place of residence for more than seven days.
If you are traveling to another state, you should check-in with the law enforcement agency in that location to determine the reporting requirements in that state. If you decide you need to evacuate to a shelter, contact your local parish sheriff or Office of Emergency Preparedness and inform them that you are a registered sex offender/child predator who is seeking shelter as a result of Hurricane Isaac. They will advise you of the shelter to which you must report.
The easiest and quickest way to comply with these reporting requirements is to log onto the Internet-based law enforcement notification service provided by the Louisiana Sheriffs’ Association at www.offenderwatchexpress.com. If you are unable to access the Internet for any reason, you are required to directly notify the appropriate law enforcement agencies of the change in your geographic location.
Split Second Circuit upholds reasonableness of 30-year prison term for child porn convictionsA number of helpful readers have help make sure I did not miss today's must-read opinion from a split Second Circuit panel in US v. Broxmeyer, No. 10-5283 (2d Cir. Aug. 27, 2012) (available here). Because I expect I will have subsequent posts commenting on this Broxmeyer ruling (in which the majority opinion runs 63 pages and the dissent another 20), I will start here by just posting the start of the majority opinion:
In 2008, former high school athletic coach Todd J. Broxmeyer was found guilty after a jury trial in the United States District Court for the Northern District of New York (Thomas J. McAvoy, Judge) of two counts of producing child pornography, see 18 U.S.C. § 2251(a) (Counts One and Two); one count of attempting to produce child pornography, see id. § 2251(a), (e) (Count Three); one count of transporting a minor across state lines with the intent to engage in criminal sexual activity, see id. § 2423(a) (Count Four); and one count of possessing child pornography, see id. § 2252A(a)(5)(B) (Count Five). The victims of all these crimes were teenage girls under Broxmeyer’s purported tutelage and care.
On Broxmeyer’s first appeal, this court reversed his convictions on Counts One, Two, and Four. See United States v. Broxmeyer, 616 F.3d 120 (2d Cir. 2010). As to the first two counts, the court concluded that the evidence was insufficient as a matter of law to permit the jury to find that Broxmeyer had solicited the production of — rather than simply received — the two images of child pornography at issue. See id. at 124–27. As to Count Four, the court, by a divided vote, concluded that Broxmeyer’s interstate transportation of a 15-year-old girl after compelling her to engage in sodomy could not support a conviction for interstate transportation of a minor with intent to engage in criminal sexual activity, that object already having been achieved before the defendant crossed any state border. See id. at 128–30; see also id. at 130 (Wesley, J., dissenting in part). Vacating Broxmeyer’s original 40-year prison sentence, this court remanded for resentencing on the remaining two counts of conviction for possession and attempted production of child pornography. See id. at 130.
Broxmeyer now appeals from so much of the amended judgment entered on December 29, 2010, as sentenced him to concurrent prison terms of 30 years on Count Three’s attempted production charge and 10 years on Count Five’s possession charge. He argues that the sentence is infected by various procedural errors and, in any event, that 30 years’ incarceration is substantively unreasonable in his case. Indeed, Broxmeyer maintains — and our dissenting colleague agrees — that any sentence higher than the minimum 15-year prison term mandated for Count Three, see 18 U.S.C. § 2251(e), would be substantively unreasonable. We reject both arguments as without merit.
If force to choose, would you legalize marijuana or prohibit tobacco?
In part because posts on pot policy also get commentors riled up (though too often a bit too ad hominen), and in part because I fear comparisons between pot and booze can sometimes be imperfect in lots of ways, I raise the question in the title of this post in the hope of discovering what core values may drive or influence various perspective on modern drug policies.
Of course, no state or federal official nor even any policy advocate will ever have to make a stark simple choice between legalizing marijuana use or prohibiting tobacco use. Nevertheless, I do think it is fair to assert that it is an accident of history rather and a product of logic and science that these too seemingly similar plants are treated so differently by state and federal laws. Thus, I am genuinely interested in hearing views, at this moment in American social and political times, how folks would respond if now forced to make consistent our legal treatment of two apparently harmful but widely enjoyed plants.
My libertarian and utilitarian instincts kick in to make this question an easy one for me. I always favor laws that maximize personal freedom unless and until there is very strong evidence that this freedom does a lot more societal harm than good. And the history of US prohibition of alcohol long ago and of marijuana in recent times surely suggest that prohibition policies can themselves do more harm than good. Consequently, at this moment in American social and political times, I would opt to legalize marijuana rather than prohibit tobacco.
I am eager to hear varied views, including from folks who think this is an unfair question or an inappropriate way to think about pot policy and pot prohibition issues. (And I am especially eager to see if commentors can keep name calling to a minimum so that the actual question in the title of the post and responses thereto can be the focus of any discussion.)
"Iraq announces 21 executions in single day"The title of this post is the headline of this new press report, which provides these details:
Iraq has executed 21 people convicted of terror-related charges, including three women, on the same day, a spokesman said on Tuesday, bringing to 91 the number of people executed so far this year. The executions come despite a call from the UN’s human rights chief for a moratorium on the use of the death penalty in Iraq, amid concerns over the lack of transparency in court proceedings.
“The justice ministry carried out 21 executions against those condemned of terrorist charges, including three women terrorists,” Haidar Al Saadi said in a text message. He did not give any further details. A justice ministry official said the executions were carried out on Monday morning.
Iraq has carried out several mass executions in 2012, including one in which 14 people were put to death on February 7, and another in which 17 were executed on January 31.
Recent related post:
California struggles with prison realignment plans and alternative programmingThe Fresno Bee has this effective report on the implementation challenges for California's prison realignment in the wake of the Supreme Court's Plata ruling. The piece is headlined "California jail overhaul assessed after 6 months," and here are excerpts:
Among other lessons, this report and the broader post-Plata story in California reveals that it is critical to change attitudes and culture as well as the legal rules in order to have a real shot at even modest success with major sentencing reforms.
The overhaul of California's criminal justice system last year was billed as a way to get more felons into treatment and out of the vicious cycle of crime, prison and more crime. So far, this has hardly been the case.
Most offenders who qualify for rehab services instead of incarceration under the state's new realignment policy are still being sentenced to time behind bars, reports show. Only a fraction are ordered to programs that include mandatory drug counseling or job training.
Additionally, the majority of these offenders, because of the way the new policy works, don't get supervision after their release from custody. This supervision was common before the realignment began.
These shortfalls are adding to concern that the restructured criminal justice system, nearly a year after its October start, may not live up to promises of rehabilitating criminals. "Inmates are going to be coming out of custody unprepared, and they're going to be more likely to reoffend," said Fresno County Sheriff Margaret Mims. "This defeats the whole purpose of realignment."
The realignment shifts responsibility for most nonviolent felons from the state to counties. (Violent offenders still go to state prison.) Gov. Jerry Brown saw it as a way to relieve the state's overcrowded prison system and, on this front, it's been a success. The prison population has shrunk by more than 15 percent.
Counties, it was expected, would do a better job of managing low-level criminals than the state, by offering treatment services tailored to local needs. During the first six months of realignment, about 72 percent of the nearly 15,000 statewide offenders newly sentenced to counties instead of the state were given straight jail time, according to a recent report by the Chief Probation Officers of California....
"I think judges are still stuck in the old mind-set where they say, 'Hey, this guy deserves a harsher sentence,' " said Allen Hopper, who has studied the realignment and works as criminal justice director at the American Civil Liberties Union of Northern California. Six percent of the state's low-level offenders were sentenced to probation programs during the first six months of realignment, while 21 percent were sentenced to a combination of jail and probation, according to the recent report....
State officials overseeing the realignment said they are not in a position to comment on how judges are doing with the sentencing. They said it is a matter for each county to work out. But California Department of Corrections and Rehabilitation spokesman Jeffrey Callison said that the new policy encourages counties to make use of alternatives to jail.
In Fresno County, the Probation Department, like other probation programs across the state, has begun to beef up its alternative services, from drug rehab to vocational assistance to daily check-in centers. "We would like to get a shot at these offenders and get them into a program," said Fresno County Chief Probation Officer Linda Penner. "We feel strongly that a period of intervention, some sort of program, is meaningful."
Penner noted that the policy of realignment is not even a year old, and she's optimistic that its effectiveness will improve with time. "It's still pretty early," she said. "As programs strengthen and more alternatives are out there, I expect judges are going to have a higher comfort level and we'll see more people in programs."