September 22, 2012
"A Biblical Value in the Constitution: Mercy, Clemency, Faith, and History"The title of this post is the title of this interesting new paper by Professor Mark Osler now available via SSRN. Here is the abstract:
The United States Constitution is a strikingly secular document, and claims that the United States was founded as a “Christian Nation” find little support there. However, the majority of Americans are Christian, and it should not be surprising that many of them look for a reflection of their faith’s values in the government that is structured by that secular Constitution.
This article urges that those who seek Christian values in the government processes allowed by the secular Constitution pay greater attention to the neglected pardon clause. The exercise of mercy is a fundamental Christian imperative, and the idea of pardon is an important and compelling theme in the gospels themselves: Jesus was nearly granted clemency by Pilate, and Jesus himself grants a pardon to the woman who is about to be executed in John 8. To the serious scholar who believes in both the imperatives of Christ and the secular limitations of the Constitution, the pardon power provides a rare instance of those roads running together.
One district judge's take on the spat between Justice Scalia and Judge Posner
I have commented on the recent (and still-on-going) public spitting match between Justice Scalia and Judge Posner in part because I suspect the spat's duration is itself a result of these two jurists loving all the attention they have been able to generate. In any event, I was pleased this morning to receive from one of my favorite district judges this commentary for posting concerning this jurisprudential tet-a-tet:
Regarding the Socialization of Posner and Scalia
I have been thinking about the nastiness that has developed between Judge Posner and Justice Scalia and their various minions and proxies over the proper method of judging. See, for example, Scalia v. Posner: Round 4 (September 21, 2012).
Years ago, I knew two kids. One was a tall and wispy twerp whose arrogance exceeded his stratospheric brilliance. The other was a squat punk whose beautiful mind spewed quips like switchblades. By three orders of magnitude, these two were far smarter than the rest of us.
It was on the playground where they struggled. The twerp found that being haughty prompted a vigorous ass kicking. The punk learned that being mouthy got you pantsed in front of the girls. But, over time, the playground changed them. Each kid started to act normally. With that, the rest of us came to respect and even appreciate them. More importantly, their socialization prompted us to consider what they had to say.
Maybe I’m wrong, but perhaps Posner and Scalia (and their snarly stand-ins) should visit a playground.
Richard G. Kopf
Senior United States District Judge
September 21, 2012
Stark extremes for forthcoming debate over federal sentencing of Amish beard-cuttersI have just seen from the start of this Cleveland Plain Dealer article that the basic terms for debating the federal sentencing outcome in the remarkable Amish beard-cutting criminal case are apparently already set at stark extremes. Here is how the article discussing yesterday's convictions describes the case and its forthcoming sentencing prospects:
In addition, this new AP article, headlined "Bond at risk for Ohio Amish hate-crime defendants," provides more details on just some of the interesting sentencing issues now joined:
Amish bishop Samuel Mullet was convicted Thursday of federal hate crimes and conspiracy for exhorting followers to forcibly shear the hair and beards of those who opposed his breakaway Ohio sect. Mullet’s three sons, his daughter, and 11 other family members and followers from his ultra-strict Amish order 100 miles southeast of Cleveland also were convicted of conspiracy and hate crimes after a trial that attracted international attention.
The 66-year-old bishop could face life in prison for his crimes. U.S. District Judge Dan Aaron Polster scheduled sentencing hearings for Jan. 24.
Assistant U.S. Attorney Bridget Brennan said federal sentencing guidelines recommend a minimum of 17 ½ years for the other 15 defendants given that their crimes involved violence and kidnapping. But defense attorneys said the judge has the discretion to sentence some of Mullet’s followers to as little as time already served in county jails.
Nine of 16 Amish convicted in beard- and hair-cutting attacks on fellow Amish in Ohio have remained free, but the government asked Friday to have them locked up, which could leave up to 50 children with one or both parents behind bars.
By law, "Detention is mandatory for these defendants," the government said. But prosecutors hedged, saying their strong recommendation for pre-sentence lockup of three of those most involved in the crimes would leave only one family with both parents in jail, not four.
U.S. District Court Judge Dan Aaron Polster, who presided at the Cleveland trial, gave defense attorneys until Thursday to argue for continued bond for the six women and three men.
Polster has scheduled sentencing for Jan. 24. Ring leader Sam Mullet Sr., 66, faces up to life in prison and the lowest sentencing range for those out on bond is 17 years, the government said....
Brian Pierce, attorney for Elizabeth Miller, 38, the mother of 11 and married to defendant Lester Miller, 37, said he would appeal for leniency in view of her big family and lack of any prior criminal record. Having both parents in prison poses "an extreme family hardship," Pierce said before the prosecution filing. "They need to make arrangements in the event she is incarcerated."
Lester Miller, Raymond Miller and Linda Schrock were the three whose continued freedom on bond was opposed by prosecutors.
Jefferson County Sheriff Fred Abdalla, whose office has investigated Mullet's community for years, said Friday he had received calls from relatives outside the community offering to care for the children if their parents go to prison. "It's Amish wanting to take these kids in. It's their relatives, it's their uncles, it's their aunts," he said. "That's the Amish, that's their culture. They are loving people, good people, God-fearing people."
When the 16 rejected lenient plea deals July 30, with some possibly getting probation, Polster quizzed the defendants about their understanding of the consequences of a conviction. He asked the defendants if they understood possible sentences for a conviction, asked their ages and number of children and whether they knew that, in some cases, they could be locked up to age 50 or 60. Most are under 40 years old.
All acknowledged an understanding, but one defense attorney said he wasn't sure they were really aware of the consequences. "It's something beyond their imagination," said Joseph Dubyak. His client, Linda Schrock, has 10 children with her husband, who was also convicted, and their 20- and 21-year-olds have been looking after the younger children during the trial.
Asked how the families would fare with long prison terms, Dubyak said, "Who knows? Not that it's a good solution, but the Amish are pretty resourceful and they are a family, the church unit. They all kind of work together."
Based on these stories, I surmise that federal prosecutors fully expect to seek sentences of at least 17-years in federal prison for even the very least culpable of these scary hardened Amish criminals convicted of these unique hate crimes. And for the ringleader of these crimes, Amish bishop Samuel Mullet, federal prosecutors will apparently be seeking an LWOP sentence (the same sentence now being served by presumably similar federal criminals such as Unibomber Ted Kaczynski and Oklahoma City bombing conspirator Terry Nichols and Olympic Park bomber Eric Rudolph).
In contrast, it sounds as though at least some of the defense attorneys think they may have a reasonable basis to argue for time-served or probation sentences. Indeed, given that just two months ago, federal prosecutors had apparently offered plea deals with offers of some sentences of straight probation, there is surely a basis to argue under the terms of 3553(a) that a sentence of probation may be "sufficient" to serve federal sentencing purposes.
September 21, 2012 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack
AEDPA, Apprendi, Almendarez-Torres (oh my!) debated in full Third Circuit opinionJust in time for the weekend, the Third Circuit has today issued a lengthy en banc opinion in Garrus v. Sec’y PA Dept. of Corrections, No. 09-3586 (3d Cir. Sept. 21, 2012) (available here), which is sure to warm the hearts (and printers) of all truly hard-core habeas geeks and sentencing fans. Here is how the lengthy opinion for the majority gets started:
William Garrus (“Garrus”), a Pennsylvania state prisoner, seeks federal habeas relief under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Garrus was found guilty in state court of voluntary manslaughter in 2001. At sentencing, the judge increased his sentence beyond the statutory maximum based on 42 Pa. Cons. Stat. § 9714, Pennsylvania‟s “three strikes” law. In order to do so, the judge made a judicial finding that Garrus had previously been convicted of burglarizing an occupied building, when, in fact, he had only pled guilty to, and been convicted of, second degree burglary (which, under Pennsylvania law, necessarily requires that the burglarized building was unoccupied). In the habeas petition now before us, Garrus argues that this judicial factfinding violated the rule of Apprendi v. New Jersey, requiring that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490 (2000). The District Court denied the petition on the basis that the highest state court determination upholding Garrus's sentence was not contrary to or an unreasonable application of clearly established Federal law.
Key to our determination is a single question: whether, pursuant to AEDPA, the state court unreasonably applied Apprendi by allowing Garrus to be sentenced beyond the statutory maximum based on a judicial finding that Garrus burglarized an occupied building, despite his plea to the contrary. For the reasons set forth below, we hold that the state court determination upholding Garrus‟s sentence was objectively unreasonable, and that Garrus is entitled to habeas relief. Accordingly, we will reverse the order of the District Court.
Here is how the lead dissent (per Judge Greenaway) gets going:
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress vested the Supreme Court — and only the Supreme Court — with the authority to determine clearly established law for purposes of analyzing an inmate‟s federal challenge to a state court judgment. Today, the majority feigns fidelity to this enduring tenet of AEDPA jurisprudence. In the process, the majority assumes the role of legislator, rewriting AEDPA to add this Court, along with the Supreme Court, as the two judicial bodies capable of delineating clearly established law. Armed with this newly created authority, the majority wades through murky Supreme Court precedent and emerges with what it purports to be an unassailable legal principle: that the prior-conviction exception enshrined in Apprendi v. New Jersey, 530 U.S. 466 (2000), forbids a sentencing court from finding facts inconsistent with a prior conviction when applying a state recidivism statute.
Unlike the majority, I cannot discern any principle in Apprendi or other authoritative Supreme Court precedent that would render this interpretation of the prior-conviction exception objectively unreasonable, the deferential standard by which we must judge the state court's determination. Indeed, the majority identifies not one Supreme Court case expounding on the contours of the amorphous prior-conviction exception. This lack of clarity coupled with the inherent tension between Apprendi and Almendarez-Torres v. United States, 523 U.S. 224 (1998) — a controlling case the majority brushes aside as having limited relevance — belies the majority's triumphant conclusion that the state court‟s determination was objectively unreasonable.
I do not disagree that the majority's interpretation of the prior-conviction exception is a reasonable and even favorable one, preventing an otherwise seemingly inequitable result. Of course, our task is not to simply choose the preferred reading of an ambiguous legal phrase. Absent guidance from the Supreme Court, we are left to determine whether the state court's interpretation was objectively unreasonable. Given that this area of law is, at best, in a state of flux, AEDPA “demands that [the] state-court decision be given the benefit of the doubt.” Renico v. Lett, --- U.S. ---, ---, 130 S. Ct. 1855, 1862 (2010) (internal quotation marks and citation omitted). For this reason, I am compelled to respectfully dissent.
Effective coverage of California's three-strikes reform initiativeThe political debate over the death penalty in California has gotten a lot of coverage this election cycle because of the repeal ballot issue, but there has been very little attention given to the important reform of the state's three-strikes law also going before the voters this fall. For this reason, I am glad to see this lengthy new Stateline piece on the topic under the headline "California Reconsiders 'Three Strikes'." Here are excerpts:
California voters appear poised to make significant changes in the three-strikes law. The problem, critics say, is that California’s law has swept up many nonviolent offenders along with violent ones. They cite offenders who have been sentenced to 25-years-to-life for stealing videos or even, in one case, a slice of pepperoni pizza.
Proposition 36, which will appear on the California ballot this November, would require that a third-strike felony be serious or violent. The proposition also would allow the resentencing of third-strike inmates who got 25-years-to-life for minor felonies. The revision would bring California's law in line with three-strikes laws in 26 other states.
Philanthropist George Soros, Stanford University law professor David Mills and the NAACP Legal Defense Fund are the primary financial backers of Proposition 36. The district attorneys of Los Angeles, San Francisco and Santa Clara counties also have endorsed the ballot measure.
According to the California Secretary of State, the Peace Officers Research Association of California is the only group that has spent money ($100,000) to defeat Proposition 36. However, the California District Attorneys Association and several prominent advocates for crime victims have expressed opposition.
By putting fewer people in prison for long sentences, Proposition 36 could save the state up to $70 million annually, according to estimates by the state Legislative Analyst’s office. Those savings are appealing at a time when California is staring down yet another year of budget crises. In a poll conducted earlier this month by the California Business Roundtable and Pepperdine University, 81 percent of respondents expressed support for Proposition 36....
According to the prison population report published by the California Department of Corrections and Rehabilitation this past June, more third-strike inmates were incarcerated for property, drug and other non-violent crimes (4,702) than for violent “crimes against persons” (4,171)....
The changes in Proposition 36 correspond closely with of the views of Los Angeles County District Attorney Steve Cooley, who supports three strikes in principle but has made it a policy in his office to pursue a third-strike conviction only for violent offenders. "The state should not allow the misallocation of limited penal resources by having life prison sentences for those who do not pose a serious criminal threat to society,” said Cooley in a statement. “The punishment should fit the crime."
Along with reserving the harshest sentences for the most serious and violent criminals, proponents argue that the three strikes revision could help California reduce prison overcrowding and meet the limits set by the U.S. Supreme Court to reduce the prison population to 137.5 percent of capacity. At the last count on June 27, 2012, the state’s prisons were operating at 155 percent of design capacity. The Legislative Analyst’s office has said Proposition 36 could help reduce overcrowding, but it’s not clear exactly how much.
California is not the only state considering a habitual offender law this year. In August, Massachusetts Governor Deval Patrick signed a three-strikes law under which offenders who are convicted of three violent and serious crimes must serve the maximum sentence for the third crime, with no possibility of parole. In most cases, the maximum sentence for such serious crimes is a life sentence.
Patrick was reluctant to sign the bill, given California’s experience. But the Massachusetts legislature and public clamored for it after a repeat violent offender shot and killed a police officer in 2010. Patrick signed the bill but promised to revisit mandatory sentencing policy in the coming year.
Michigan is also debating a habitual offender law, although its law would require four strikes instead of three. The Michigan House and Senate approved different versions of the measure this year, but both would impose mandatory sentences of 25-years-to-life for certain repeat violent offenders. Michigan Attorney General Bill Schuette is pushing for the measure, but critics say it would be prohibitively expensive.
Is it time for the Confrontation Clause to apply at sentencing?The question in the title of this post is prompted by a new student note by Amanda Harris, which is titled "Surpassing Sentencing: The Controversial Next Step in Confrontation Clause Jurisprudence" and is available here via the Florida Law Review. Here is the abstract:
After Crawford v. Washington opened the door to a Confrontation Clause debate in 2004, the United States Supreme Court has consistently confronted confrontation issues arising out of the Crawford interpretation. One issue that the Supreme Court has not yet tackled is whether the Confrontation Clause applies during non-capital and capital sentencing. While many states and federal courts continue to hold that no right of confrontation during sentencing exists, many other courts have chosen to apply a right of confrontation in both capital and non-capital sentencing.
This Note takes two new approaches to the Confrontation Clause at sentencing debate. First, this Note addresses both the text of the Sixth Amendment and the history surrounding the Confrontation Clause to conclude that the right of confrontation should apply during sentencing, or at least during capital sentencing. Second, this Note rejects the rationale that Williams v. New York is the controlling precedent in the confrontation at sentencing debate. Under this approach, applying the Confrontation Clause at sentencing may be the next logical step in Confrontation Clause jurisprudence.
September 20, 2012
ABA and NIJ unveil new on-line resource on collateral consequencesAs effectively reported in this post at The BLT, the "American Bar Association and a Justice Department unit have launched a new website [here] that allows users to search federal and state laws that hinder people with criminal records from being able to do basic things — like finding work and obtaining housing — to be able to reenter society successfully." Here is more:
This Project Description from the website concludes with this explanation of the resource:
The website, run by the ABA and DOJ's National Institute of Justice, is meant to be a resource that allows users to search the collateral consequences they can face in their own state.
Margaret Colgate Love, a Washington-based lawyer and director of the ABA National Inventory of the Collateral Consequences of Conviction, used the example of a fictitious young man from Texas who wants to become an electrician. But the man is considering a guilty plea for a small drug crime. A search on the website shows that he is ineligible for an apprentice electrician license with any felony or misdemeanor conviction on his record.
For now, the website includes information on state laws in Vermont, Minnesota, Iowa, Nevada, Texas, Wisconsin, South Carolina and New York. The rest of the states will be entered over the next 18 months, administrators say.
Through the National Inventory [of the Collateral Consequences of Conviction (NICCC)], each jurisdiction’s collateral consequences will be made accessible to the public through a website that can be searched and sorted by categories and keywords. The website will make it possible for criminal and civil lawyers to determine which collateral consequences are triggered by particular categories of offenses, for affected individuals to understand the limits on their rights and opportunities, and for lawmakers and policy advocates to understand the full measure of a jurisdiction’s sanctions and disqualifications. It will also be possible through the website to perform inter-jurisdictional comparisons and national analyses.
The User Guide posted on the Inventory website contains a set of “frequently asked questions” intended to explain the protocols used in constructing the National Inventory, and the analytical principles and coding conventions used in sorting laws and rules into various categories. A disclaimer states that the information available through the Inventory does not constitute legal advice, that the construction of the database has not included an examination of judicial interpretations, and that it generally describes collateral consequences conservatively, in the sense that ambiguous provisions are interpreted to impose more severe rather than less severe penalties.
Work on the NICCC commenced in early 2012, and it was launched in September 2012 with the collateral consequences from nine states and the federal system. Additional states are being entered into the Inventory database and uploaded to the website as their laws and rules are identified and analyzed. The initial coding effort has a completion date of December 2013, and plans are in the works to secure the Inventory's ongoing maintenance.
Ohio Amish hair-cutting incidents now a federal hate crimes sentencing matterAs reported in this New York Times article, "Jury Convicts Amish Group of Hate Crimes," a notable religious dispute is now a fascinating federal sentencing matter. Here are the basics:
Samuel Mullet Sr., the domineering leader of a renegade Amish sect, and 15 followers were convicted of federal conspiracy and hate crimes Thursday for orchestrating a series of bizarre beard- and hair-cutting attacks last fall that spread fear through the Amish of eastern Ohio.
The convictions of Mr. Mullet and his followers and family members who carried out the assaults could bring lengthy prison terms. The jury’s verdict vindicated federal prosecutors, who made a risky decision to apply a 2009 federal hate-crimes law to the sect’s violent efforts to humiliate Amish rivals.
Mr. Mullet, 66, founder of a community near Bergholz, Ohio, and 15 followers, including six women, were tried for their roles in five assaults on people that Mr. Mullet had described as enemies. The jury heard three weeks of testimony and deliberated more than four days before reaching a verdict midday Thursday.
Although Mr. Mullet did not directly participate in the attacks, prosecutors labeled him the mastermind of the assaults, in which groups of his followers held down victims and sheared their beards and hair. Among the traditional Amish, men’s long beards and women’s uncut hair are central to religious identity. Prosecutors argued that the attacks were intended to humiliate those who questioned Mr. Mullet’s cultlike methods, like forcing errant followers to live in chicken coops and pressing married women — including his own daughter-in-law — to accept his intimate sexual “counseling.” ...
The high-profile nature of the case, and the stakes for the defendants, were raised when Steven M. Dettelbach, the United States attorney for the Northern District of Ohio, stepped in to charge Mr. Mullet and 15 others, including several of his children and other relatives, with federal conspiracy and hate-crime charges that carry potential sentences of 10 years per count.
The defendants did not deny their roles in the attacks, which were carried out with battery-powered clippers, scissors and razor-sharp shears that are designed to trim horse manes. Rather, the case turned on the motives for the attacks and whether it was appropriate to make them into a major federal case under a 2009 hate-crimes law.
To prove the most serious charges, the jurors had to be convinced that the defendants had caused “bodily injury,” which could mean “disfigurement,” and that the attacks on nine of the victims were based mainly on religious differences.
Lawyers for the defense argued that cutting hair was not disfigurement and that the attacks resulted from family and personal differences, including a bitter custody battle involving a daughter of Mr. Mullet’s, as well as disputes over the “true” Amish way. They argued that prosecutors had overreached by labeling the assaults as religiously inspired hate crimes.
I have not yet looked into how the US Sentencing Guidelines might be calculated in this unique case, but I have a feeling that the debates over sentencing could end up as dynamic and as controversial as the debates over making this matter a federal criminal case in the first instance.
Can a documentary impact odds of a cert grant in the (in)famous Rubashkin case?
In this post from a few months ago, I wondered about the odds as to whether SCOTUS grants cert in the (in)famous Rubashkin case. As detailed in an amicus brief on sentencing issues I authored to support Rubashkin's cert petition (discussed here), I am hoping SCOTUS will take up this case. But the odds of a grant in any case are always long, no matter how much attention a case receives.
That said, as detailed in this Des Moines Register piece, the Rubashkin case is getting a whole new level of attention just days before the cert conference in which the Justices are scheduled to consider the case. The piece is headlined "Documentary highlights Rubashkin’s fraud conviction, Supreme Court appeal," and here are excerpts:
A documentary short released today that examines the power U.S. federal prosecutors wield in the U.S. criminal justice system features former Agriprocessors executive Sholom Rubashkin.
The 10-minute film, “Unjustified,” includes interviews with a variety of legal experts, among them former Solicitor General Paul Clement, the lead lawyer on Rubashkin’s appeal that asks the U.S. Supreme Court to shorten a 27-year sentence or order a new trial. The high court will decide this fall whether to hear the case....
Rubashkin argues U.S. District Judge Linda Reade, who presided over his trial, could not be impartial because he said evidence shows she met repeatedly with investigators planning the raid. He also argues his prison term was too long for a first-time, nonviolent offender.
The documentary is directed by Emmy-nominated producer Nicholas McKinney, known for his work on Comedy Central’s “The Daily Show” and Michael Moore’s Bravo TV series “The Awful Truth.”
The 10-minute video, titled “Unjustified: The Unchecked Power of America's Justice System," is available via YouTube at this link.
Related posts on the Rubashkin case:
- "More Former AGs Question Sentence Sought in Bank Fraud Case"
- Can and should religious considerations influence bail decisions?
- Federal prosecutors now seeking 25-year prison term for Rubashkin
- Kosher plant chief Sholom Rubashkin sentenced to 27 years imprisonment
- An appellate amicus brief in the Rubashkin case on sentencing issues
- Rubashkin appeal raising more questions about high-profile federal fraud case
- Eighth Circuit panel unanimously affirms Rubashkin federal convictions and lengthy prison sentence
- "High court should hear Rubashkin to consider overzealous DOJ and judge who was essentially on prosecution team"
- Making a full-throated pitch for SCOTUS to again address reasonableness review
- What are the odds SCOTUS grants cert in the (in)famous Rubashkin case?
Seventh Circuit affirms 40-year (below-guideline) sentence for child porn producerThough not especially ground-breaking, a Seventh Circuit panel opinion today in US v. Chapman, No. 11-3619 (7th Cir. Sept. 20, 2012) (available here), covers a lot of ground that arises in a lot of federal child pornography sentencing cases. Here is how the extended opinion begins:
Rondale Chapman pleaded guilty to producing child pornography, a crime punishable by no less than 15 years in prison. See 18 U.S.C. § 2251(a), (e). For several years Chapman, now 46, lured kids as young as 12 to his home with marijuana and alcohol and filmed them, usually through “peepholes,” engaging in sexually explicit conduct. Chapman faced a guidelines range of life imprisonment and was sentenced to a total of 40 years. On appeal he contends that the district court did not fully evaluate his arguments in mitigation, and also failed to adequately explain its choice of sentence. On the surface the first of these contentions seems plausible, but only because Chapman exaggerates the evidence presented at sentencing about his background. When we look beyond his embellishment, it becomes clear that the “mitigating” factors he cites lacked evidentiary foundation or amounted to “stock” arguments that required no response from the judge. For that reason we affirm Chapman’s sentence.
New Hampshire jury nullifies felony marijuana charges against 59-year-old RastafarianThe state motto for New Hampshire is "Live Free or Die," and I joked in this June post that the state's Governor seemed to pick the opposite of live free when he vetoed a medical marijuana bill. This fascinating new local story, however, suggests that jurors in New Hampshire are still inclined to go with live free despite the state's marijuana laws. The piece is headlined "Jury clears NH man of felony pot charge, use was part of Rastafarian religion," and here are excerpts:
A Belknap County Superior Court jury cleared a Barnstead resident of a felony drug charge last week, siding with a defense lawyer who encouraged the jury to nullify the verdict on the grounds that the marijuana use was part of his Rastafarian religion. The decision on Thursday cleared Doug Darrell, 59, a piano tuner and woodworker, of manufacture of marijuana, a Class B felony that carries a maximum prison sentence of 3.5 to seven years.
Under the principle of jury nullification, a jury can find a defendant innocent, even if prosecutors have proved guilt beyond a reasonable doubt. “It's a really important development,” said Concord defense lawyer Mark Sisti, who represented Darrell. Legislatures around the country are rethinking marijuana laws, and most New Hampshire residents have no problem with moderate use of the drug by responsible adults, he said.
“We're moving along a path we should have been on years ago,” he said. Key to the case was a decision by Superior Court Judge James O'Neill to instruct the jury about nullification, he said....
Juror Cathleen Converse of Barnstead said several members of the jury were uncomfortable with the case. “Mr. Darrell seemed to be the only victim here,” said Converse, a retiree who moved to New Hampshire in 2004 from South Carolina. “Almost everyone said this just shouldn't have happened to these peaceful people.”
Rastafarianism is closely associated with reggae music, dreadlocks and Caribbean culture. According to the website rastafarian.com, it arose in Jamaica in the 1930s and promotes the spiritual use of marijuana and the rejection of Western society. A Rastafarian since the 1980s, Darrell has no criminal history and has been married to his wife for 38 years, Sisti said. They have four grown children who are successful in their fields.
The couple use the marijuana plant more often for tea and medicinal rubs than to smoke it, he said. “This is the real deal here. This isn't some kid who listened to Bob Marley last week and decided to be Rastafarian,” Sisti said. Darrell refused several plea bargains because they would require him to plead guilty to something his religions deems as sacramental, Sisti said.
He said Darrell was arrested after a National Guard helicopter, working on a grid with New Hampshire State Police, spotted 15 marijuana plants in July 2009....
Belknap County Attorney Melissa Countway Guldbrandsen said she brought the charge against Darrell because he was breaking the law. It wouldn't matter whether a defendant were an active drug dealer or someone like Darrell, Guldbrandsen would still bring the charge, she said.
Like Sisti, she said a key to the case was the judge's decision to instruct the jury about nullification. She was surprised that Judge O'Neill gave the instruction, which lent credence to Sisti's argument in favor of jury nullification. “I don't see it as being that significant in changing our practice and the practice of the court,” Guldbrandsen said about the verdict. In January, a new law goes into effect that codifies current practice, which permits a lawyer to argue for nullification.
After "quiet" summer season, a busy execution fall gets started today
There has not been any executions in the US for almost six weeks now, and there were only a total of five executions in the summer months. But, as reported in local article here and here, there are executions scheduled today in both Ohio and Texas.
This DPIC page shows that an additional 15 serious execution dates are on the calendar for the remainder of 2012 (eight of which are in Texas). If all these scheduled executions are if fact carried out this year (which seems somewhat unlikely), then there would be a very slight uptick (from 43 to 44) of the total number of executions this year compared to last year. However, if even a few of these scheduled executions get postponed, 2012 could be the third straight year with a decline in the total number of executions in the US.
UPDATE: This AP story reports that Ohio's execution was completed this morning. The AP piece starts this way:
An Ohio death-row inmate used his last words Thursday to repeatedly apologize to the family members of his two victims and tell them that he hopes they can let their pain die with him. Donald Palmer, 47, was executed by lethal injection at the state prison in Lucasville in southern Ohio about 23 years after he shot and killed two men he didn't know along a rural road.
ANOTHER UPDATE: This AP story reports that Texas's execution was completed late Thursday. This AP piece starts this way:
An ex-convict who confessed to killing five people at a Dallas-area car wash a week after he was fired from his job there 12 years ago was executed Thursday evening. Robert Wayne Harris, 40, received lethal injection less than two hours after the U.S. Supreme Court refused appeals to halt his punishment.
Harris expressed love to his brother and three friends who were watching through a window. "I'm going home. I'm going home," Harris said. "Don't worry about me. I'll be alright. God bless, and the Texas Rangers, Texas Rangers."
How often do US Attorneys "fail to exercise responsible oversight and failed to provide the leadership and judgment required of a United States attorney"?
The question in the title of this post is drawn from a quote in DOJ's inspector general's report on "Operation Fast and Furious" (highlights of which CNN has excerpted here). Specifically, the F&F report singles out the (now resigned) US Attorney of Arizona, Dennis Burke, for his failings as quoted in the title of this post.
A congressional hearing this morning is likely discuss this notable finding and other sharp criticisms of DOJ agents and officials in the F&F report to try to give the Obama Administration, and especially AG Eric Holder, a political black eye. But even though often seemingly motivated more by political point-scoring than broader concerns about prosecutorial practices, I sincerely hope that the entire F&F debacle might help folks on both sides of the aisle see that federal prosecutors often can conclude that big-government, federal law enforcement ends are all too often used as a justification for utilizing very poor means by US Attorneys and their agents.
I have not followed the Fast and Furious political fights closely enough, nor do I have time to read the new 500+-page report, in order to be able to make a thoughtful assessment of whether this whole prosecutorial mess might have a potential reform silver lining. But I hope commentors will share their take on what the new F&F report and the broader controversy should lead us to conclude about the working dynamics and mind-set of the always powerful US Department of Justice and its US Attorneys.
September 19, 2012
"Optronics Sentencing Could Break All Sorts of Antitrust Records"The title of this post is the headline of this new Wall Street Journal article, which gets started this way:
A San Francisco federal courtroom on Thursday could be home to a watershed moment in the history of U.S. antitrust law.
U.S. District Judge Susan Illston is scheduled to sentence Taiwan’s AU Optronics Corp. on its March conviction for participating in a scheme to fix prices on liquid-crystal-display panels. The Justice Department is asking her to impose a $1 billion fine. Yes, that’s billion, with a B.
“This sentencing is one of the most important antitrust events in recent history,” says Allen & Overy partner John Terzaken, a former director of criminal enforcement in the department’s Antitrust Division.
The sentencing hearing is a rare event for several reasons and not all have to do with the financial stakes. But let’s start with the money. The fine sought by the government is twice the size of the largest single fine it has ever collected in an antitrust case — $500 million against F. Hoffmann-La Roche Ltd in 1999, which pleaded guilty to leading a price-fixing cartel on vitamins.
The $1 billion request also is nearly double the amount the Justice Department obtained in total criminal antitrust fines — in all cases — during the last fiscal year. It’s also more than the $890 million in combined criminal fines that seven Asian companies have agreed to pay in the LCD investigation, which dates back to 2008.
Of course, those seven companies, including LG Display Co. and Sharp Corp., agreed to plead guilty. AU Optronics chose to fight the charges at trial, a decision companies rarely make because the potential criminal fines imposed after a conviction can be very high. The AU Optronics jury found the LCD conspiracy resulted in ill-gotten gains of more than $500 million, a finding that allowed the Justice Department to seek the $1 billion fine.
Also of note in Thursday’s hearing, the department is seeking stiff sentences for two convicted company executives, asking Judge Illston to impose 10-year prison terms. That’s far beyond the longest jail sentence the department ever has obtained for a Sherman Act violation: four years.
Lawyers for the two executives say there’s no justification for the lengthy sentences the department is seeking, especially because LCD executives who pleaded guilty have received sentences of 14 months or less.
This sentencing matter could bring new meaning (and a notable price-tag) to the term "trial penalty" for both the company and its executives.
UPDATE: This AP story reports on the sentencing outcome handed down by the sentencing judge on Sept. 20: "A Taiwanese company has been fined $500 million and two of its former top executives sentenced to three years in prison for their leading roles in a global LCD screen price-fixing conspiracy."
What will be the real tax dynamics if (when?) a state legalizes marijuana?The question in the title of this post is prompted by this effective new AP piece, which is headlined "Pot Could Be Tax Windfall, but Skeptics Abound." Here is how the article gets started:
A catchy pro-marijuana jingle for Colorado voters considering legalizing the drug goes like this: "Jobs for our people. Money for schools. Who could ask for more?" It's a bit more complicated than that in the three states — Colorado, Oregon and Washington — that could become the first to legalize marijuana this fall.
The debate over how much tax money recreational marijuana laws could produce is playing an outsize role in the campaigns for and against legalization — and both sides concede they're not really sure what would happen.
At one extreme, pro-pot campaigners say it could prove a windfall for cash-strapped states with new taxes on pot and reduced criminal justice costs. At the other, state government skeptics warn legalization would lead to costly legal battles and expensive new bureaucracies to regulate marijuana.
In all three states asking voters to decide whether residents can smoke pot, the proponents promise big rewards, though estimates of tax revenue vary widely:
— Colorado's campaign touts money for school construction. Ads promote the measure with the tag line, "Strict Regulation. Fund Education." State analysts project somewhere between $5 million and $22 million a year. An economist whose study was funded by a pro-pot group projects a $60 million boost by 2017.
— Washington's campaign promises to devote more than half of marijuana taxes to substance-abuse prevention, research, education and health care. Washington state analysts have produced the most generous estimate of how much tax revenue legal pot could produce, at nearly $2 billion over five years.
— Oregon's measure, known as the Cannabis Tax Act, would devote 90 percent of recreational marijuana proceeds to the state's general fund. Oregon's fiscal analysts haven't even guessed at the total revenue, citing the many uncertainties inherent in a new marijuana market. They have projected prison savings between $1.4 million and $2.4 million a year if marijuana use was legal without a doctor's recommendation.
I vaguely recall from my 2L tax class that the definition of income for federal tax purposes includes even ill-gotten gains. Thus, those making money currently on medical marijuana sales in various states should already be paying federal income tax even though they are violating federal criminal laws. Consequently, if (when?) a state legalizes all marijuana sales and allows more persons legally to earn income, there ought also be a benefit to the federal tax coffers as well even if federal criminal law does not change anytime soon. (Dare I joke that maybe Mitt Romney will come to endorse pot legalization initiatives with the hope of reducing the percentage of voters who pay no federal income tax?)
If major newspaper editorials matter, the death penalty will be dead in CaliforniaThe title to this post is prompted by this new editorial from the San Francisco Chronicle, which is headlined "Yes on Prop. 34, death penalty repeal." Here is how the editorial starts and ends:
California's death penalty has not satisfied anyone since it was reinstated 35 years ago. Those who are morally opposed to capital punishment decry the 13 lives taken by the state. Those who believe the death penalty brings justice and closure are frustrated that the average time between sentence and execution is 25 years....
It would be far wiser for California to concentrate its resources on the most indisputable deterrent to violent crime: raising the odds that a perpetrator will be found and convicted. Prop. 34 advances that goal by directing most of the savings toward investigations of homicide and rape cases. Vote yes.
Though I am not tracking the editorial endorsements of all major papers in California, I know that the editorial boards of both the Los Angeles Times and the Sacramento Bee have also come out in support of the death penalty repeal initiative in front of California voters this November (the cartoon reprinted here comes via the Sacamento Bee). As explained in this interesting piece from the Bee's editorial page editor, the position of the Sacramento Bee is perhaps especially notable because the Bee has historically supported the death penalty:
[T]here have been times when The Bee has stopped and taken a U-turn, reversing a longstanding editorial position. One of the biggest came last week, when we ended the editorial board's long-standing support for California's death penalty.
We didn't make this change lightly. It came after years of debate and discussion that preceded the current makeup of the editorial board. It came after many months of research and meetings with legal scholars and groups on both sides of the death penalty debate.
The position we took -- that the death penalty is unworkable and unfixable in California -- was crafted with several considerations in mind. We wanted to respect those Californians -- and previous members of the editorial board -- who believe that executions are a just punishment for convicted murderers who commit the most horrible of crimes.
But we also wanted to make a forceful argument that there is no way in California to carry out that punishment swiftly, equitably and in accordance with our laws and constitution. As we stated in the first installment of our editorials, "The death penalty in California has become an illusion, and we need to end the fiction -- the sooner the better."
I doubt that newspaper editorials these days have all that much of an impact of voters, and I suspect that is especially true in the context of an emotional and symbolic issue like the death penalty. Still, I think it is notable, if not ultimately consequential, that the press in California seems of one mind on Proposition 34.
Recent related post:
Should sentencing juries receive a state's sentencing guidelines?The question in the title of this post is prompted by this interesting story from Virginia, which is headlined "Hampton juror asks judge to lower 128-year prison sentence." Here are excerpts which discuss jury sentencing practices in Old Dominion:
A jury in March recommended that Robert Via Jr. spend the rest of his life in prison. Their decision seemed definitive: 128 years and a day, for an armed home invasion.
But one juror is now saying that because they were forced under the law to render the sentence without guidelines, a judge should shorten the majority of Via's time behind bars. "I believe the jury may have arrived at a different set of verdicts had we more information on Virginia's sentencing requirements and processes," the juror wrote in an Aug. 12 letter to Hampton Circuit Judge Christopher Hutton.
Those concerns highlight a larger issue in the state: Jurors do not get state sentencing guidelines, and judges rarely question jurors' recommendations.
The guidelines, implemented in 1995, were an attempt to level the sentencing field when the state ended parole.... But unlike judges, jurors don't have access to the guidelines and usually sentence above them, research shows....
Virginia is one of six states that allows jurors to recommend sentences after finding someone guilty. In most states, the jury decides guilt or innocence but the sentence is determined by the judge.
In a 2004 study published in the Vanderbilt Law Review, Nancy J. King and Rosevelt L. Noble examined jury sentences in Virginia, Kentucky and Arkansas. The authors found that juror sentences in Virginia were not consistent with those given by judges. "Average sentences after jury trial were more severe than average sentences after bench trial or guilty plea, with many offenses showing significant differences," the authors write.
Jury sentences for defendants convicted of drug offenses averaged from 4.5 years to 14 years longer than sentences by judges, the study found. "In Virginia, the jury lacks both information and power, and is routinely bypassed by defendants who prefer the guideline sentences that they can obtain by exercising their state constitutional right to plead guilty," the authors wrote.
Defense attorneys often warn their clients about the stakes of taking a jury trial because of the sentence disparity. "Any time a defendant requests a trial by jury, you have to factor in the risk of a jury sentencing your client," defense attorney Tim Clancy said. "It's a huge factor in making the decision of whether to have a judge or a jury hear a client's case. It's a huge consideration."...
Criminal cases being tried by juries are rare across the state. Most cases are settled through guilty pleas or bench trials, according to the Virginia Criminal Sentencing Commission's 2011 annual report. Only 1.5 percent of criminal cases were resolved by jury trials in 2011. Eighty-nine percent of criminal cases were adjudicated by guilty pleas and 10 percent by bench trials....
When a jury decides on a sentence, it is only a recommendation to the judge. In most cases, however, judges will impose what the jury recommends. Defense attorney Ron Smith says that judges rarely go against what the jury wants in a criminal trial....
In 2011, judges modified 19 percent of jury sentences, according to the commission's report. Judges can lower a jury's recommended sentence, but not raise it. Under the law a judge must impose the minimum, but can suspend all or part of the time. They can also decide to give the defendant probation.
September 18, 2012
"Crime, Weather, and Climate Change"The title of this post is the title of this notable paper by Matthew Ranson available via SSRN. Here is the abstract:
This paper estimates the impact of climate change on the prevalence of criminal activity in the United States. The analysis is based on a 50-year panel of monthly crime and weather data for 2,972 U.S. counties. I identify the effect of weather on monthly crime by using a semi-parametric bin estimator and controlling for county-by-month and county-by-year fixed effects. The results show that temperature has a strong positive effect on criminal behavior, with little evidence of lagged impacts. Between 2010 and 2099, climate change will cause an additional 30,000 murders, 200,000 cases of rape, 1.4 million aggravated assaults, 2.2 million simple assaults, 400,000 robberies, 3.2 million burglaries, 3.0 million cases of larceny, and 1.3 million cases of vehicle theft in the United States.
Yikes! Well, I guess the good news is that I can now think of my Prius as a crime-fighting machine.
Seriously, I have long understood there are important connections between weather and crime, and perhaps this article provides (still more) justification for climate change advocates to consider seizing upon a "tough on crime" mantra.
Recent related post:
South Carolina Supreme Court reconsidering big constitutional ruling concerning broad GPS trackingAs reported in this prior post, last May the South Carolina Supreme Court issued a very interesting (and seemingly ground-breaking) constitutional ruling concerning GPS tracking of a sex offender in SC v. Dykes, No. 27124 (S.C. May 9, 2012) (available here). Via this new AP article, I now see that this Dykes case was reheard today, though it is not clear whether we may get a new (or clearer) opinion this time around. Here are the basics:
Even after hearing the case a second time, the South Carolina Supreme Court isn't sure it is fair to make some sex offenders in the state face lifetime satellite monitoring of their every move without any chance of appeal.
The justices Tuesday reheard a case from May where they decided the monitoring may be too harsh in some cases. The Department of Probation, Parole and Pardon Services asked the court to reconsider its ruling, saying their decision rewrote the law.
A lawyer for Jennifer Dykes again argued her constitutional rights were violated because she had no chance to appeal or revisit the decision to put a bracelet on her ankle that reports her every move to state authorities.
Dykes, 32, was ruled to be a sex offender after being convicted of a lewd act on a child charge stemming from her relationship with a 14-year-old girl in Greenville County several years ago. She was found to be at low risk to abuse a child again.
After violating her probation by drinking alcohol, continuing a relationship with a convicted felon she met while behind bars and rescheduling too many appointments for sex offender counseling, Dykes' probation was revoked, according to court documents.
The probation violation meant under state law authorities could seek lifetime monitoring for Dykes without a chance of appeal.... Dykes' lawyer, Chris Scalzo, held up his wedding ring and said while he loves his wife and wears it nearly all the time, he can take it off. "She's not allowed to take that thing off her body unless there is a court order," Scalzo said.
An attorney for the probation agency, John Aplin, said lawmakers passed the lifetime monitoring law to protect the public. "The reason you are tracking that person every minute of every day for the rest of their life is to protect children from further future harm. It's also to help law enforcement solve crimes," Aplin said.
Chief Justice Jean Toal said she understands the need for public safety from the most dangerous offenders. But she said it is a fair question to ask if a one-size-fits-all law that doesn't allow a timely chance to appeal the ruling or ask a judge to revisit whether an offender is still dangerous is constitutional. "This court has no grief for sex offenders. But there are certainly different levels," Toal said.
Associate Justice Kay Hearn, who wrote her own opinion in May suggesting that revealing every detail of Dykes' private life to state officials violates her constitutional rights, pointed out that Dykes was not considered to be a dangerous sex offender who preys on children and would likely never change her behavior.
Prior related post:
- South Carolina Supreme Court declares lifetime sex offender GPS tracking unconstitutional on various grounds:
Third Circuit finds jury unduly prejudiced by seeing too much child pornA notable Third Circuit panel ruling today in US v. Cunningham, No. 10-4021 (3d Cir. Sept. 18, 2012) (avalable here), highlights the challenges (and the truly disgusting nature) of some federal child pornography prosecutions. Here is how the lengthy opinion gets started:
David Cunningham appeals the September 27, 2010 judgment of the United States District Court for the Western District of Pennsylvania sentencing him to 210 months’ imprisonment and 20 years’ supervised release based on his conviction for the receipt and distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2). At trial, the District Court allowed the government, over Cunningham’s objection, to show the jury two videos containing seven different video clips totaling approximately two minutes as a sample of the child pornography that gave rise to the charges. Cunningham contends that, because the Court permitted the videos to be shown without first viewing the videos to determine whether the danger of unfair prejudice substantially outweighed their probative value, the Court erred and his conviction must be reversed. We agree that the District Court abused its discretion, not only by failing to review the videos prior to admitting them but also by allowing all of those videos to be shown to the jury, because the highly inflammatory nature of two of them clearly and substantially outweighed their probative value pertaining to the crimes charged. Those errors were not harmless, and we will therefore vacate and remand for a new trial.