January 28, 2012
Fifth Circuit to review en banc restitution sentences for child porn downloaders
As effectively detailed here at How Appealing, the Fifth Circuit issued two orders earlier this week in which it has called for en banc review of whether and how federal law permits a child depicted in illegal porn to secure a restitution award in the sentencing of an offender who only downloaded that child's image. Interestingly, these cases had been decided by Fifth Circuit panels back in early 2011; one might speculate that there was an extended debate within the Fifth Circuit before it finally decided to rehear these cases en banc.
Absent congressional changes to applicable law, the issue of restitution awards in child porn downloading cases seems likely eventually to get to the US Supreme Court. Consequently, I would expect an even further appeal in these cases no matter what the Fifth Circuit ultimately rules when considering this matter as a full court.
Some related recent federal child porn restitution posts:
- Federal sentence for receiving child porn includes forfeiture of home
- Federal judge imposes large restitution punishment for downloading child porn
- Notable report on latest developments in federal restitution awards in child porn downloading cases
- New student note on restitution sentences for child porn downloaders
- Second Circuit panel reverses child porn restitution award to "Amy"
- "Avenging 'Amy': Compensating Victims of Child Pornography Through 18 U.S.C. § 2259"
January 27, 2012
"Capital Punishment and Contingency"
The title of this post is the title of this interesting new piece by Professor Carol Steiker, which reviews David Garland's recent book on capital punishment titled "Peculiar Institution: America’s Death Penalty in an Age of Abolition." Here is a brief summary of the piece via SSRN:
This book review of David Garland’s “Peculiar Institution: America’s Death Penalty in an Age of Abolition,” assesses Garland’s contributions both to the literature about the American death penalty and to the broader debate about the nature and causes of American penal exceptionalism. Garland’s perspective is considered in light of the work of James Whitman, Franklin Zimring, Michael Tonry, Nicola Lacey, and William Stuntz. After situating Garland in the larger conversation, the review goes on to illustrate and deepen Garland account of the contingency of America’s recent death penalty story by imaging three counterfactual (and extremely divergent) American death penalty stories-that-might-have-been.
New NY Times report digs deeper into Mississippi pardon spree by Haley Barbour
This lengthy new piece in the New York Times, which is headlined "Many Pardon Applicants Stressed Connection to Mississippi Governor," provides some additional information about links between outgoing Gov. Haley Barbour and many offenders who received clemency via his pen. Here is an excerpt:
In the furor the followed Mr. Barbour’s clemency decisions — including more than 10 times as many full pardons as his four predecessors combined — beneficiaries like Mr. Vann have largely been overshadowed by others with higher profiles or more obvious connections. Among them were four murderers who had worked at the governor’s mansion; Brett Favre’s brother, who had killed a friend in a drunk driving incident; and Karen Irby, a Jackson socialite who killed two young doctors while driving drunk in 2009.
A close look at some of the clemency applications of nearly 200 of the other felons who were pardoned reveal that a significant share contained written appeals from members of prominent Mississippi families, major Republican donors or others from the higher social strata of Mississippi life.
The governor erased records or suspended the sentences of at least 10 felons who had been students at the University of Mississippi and Mississippi State when they were arrested, including at least three who killed people while driving drunk and several others charged with selling cocaine, ecstasy and other drugs. Another pardon went to the grandson of a couple who once lived near Mr. Barbour’s family in his hometown, Yazoo City.
One beneficiary, Burton Waldon, had killed an 8-month-old boy in an alcohol-induced crash in 2001. Mr. Waldon, a high school senior at the time, pleaded guilty and received a suspended sentence. He is a member of the prominent Hill Brothers Construction Company family, big-money political donors who give mostly to Republicans, including Mr. Barbour. An uncle of Mr. Waldon, Kenneth W. Hill Sr., sought and received a pardon from President George W. Bush in 2006, erasing a federal income tax conviction.
Mr. Barbour declined to comment on the pardons, but a spokeswoman said that every application had been treated alike. “If you were poor or rich, you were told to go through the parole board process,” said the spokeswoman, Laura Hipp.
Ms. Hipp said that in roughly 95 percent of the cases, the governor went along with the majority recommendation of the five-member parole board he had appointed to review the requests. In some cases, the governor granted pardons that were unanimously opposed by the board. Grants of clemency are solely at the governor’s discretion, and he is not obligated to give his reasoning.
Recent related posts:
- On way out door, Mississippi Gov. Haley Barbour pardons five serious offenders who worked at the Governor's Mansion
- "Did Haley Barbour's pardon spree go too far?"
- Mississippi state judge blocks some of out-going Gov. Barbour's controversial pardons
- "Barbour ‘At Peace’ with Pardons, but Scandal Rages On"
- Former Gov Haley Barbour explains "Why I released 26 prisoners"
New major report documents costs and concerns with aging prison populations
Human Rights Watch has today released a major new report on US prison populations titled “Old Behind Bars: The Aging Prison Population in the United States." HRW visited nine states and 20 prisons to gather information for the report, which can be accessed via this link (along with a lot of companion materials). Here is an excerpt from the report's summary:
Life in prison can challenge anyone, but it can be particularly hard for people whose bodies and minds are being whittled away by age.
Prisons in the United States contain an ever growing number of aging men and women who cannot readily climb stairs, haul themselves to the top bunk, or walk long distances to meals or the pill line; whose old bones suffer from thin mattresses and winter’s cold; who need wheelchairs, walkers, canes, portable oxygen, and hearing aids; who cannot get dressed, go to the bathroom, or bathe without help; and who are incontinent, forgetful, suffering chronic illnesses, extremely ill, and dying.
Using data from the United States Bureau of Justice Statistics (BJS), Human Rights Watch calculates that the number of sentenced federal and state prisoners who are age 65 or older grew an astonishing 94 times faster than the total sentenced prisoner population between 2007 and 2010. The older prison population increased by 63 percent, while the total prison population grew by 0.7 percent during the same period.
Some older men and women in prison today entered when they were young or middle-aged; others committed crimes when they were already along in years. Those who have lengthy sentences, as many do, are not likely to leave prison before they are aged and infirm. Some will die behind bars: between 2001 and 2007, 8,486 prisoners age 55 or older died in prison.
This report is the first of two that Human Rights Watch plans to issue on the topic of elderly prisoners in the US. It presents new data on the number of aging men and women in prison; provides information on the cost of confining them; and based on research conducted in nine states where prisons vary significantly in size, resources, and conditions, offers an overview of some ways that prison systems have responded to them. The report tackles some policy considerations posed by incarcerating elderly inmates, and raises the human rights concerns that must be addressed if sound policies are to be developed for the criminal punishment and incarceration of older prisoners, both those who grow old in prison and those who enter at an advanced age.
Prison officials are hard-pressed to provide conditions of confinement that meet the needs and respect the rights of their elderly prisoners. They are also ill-prepared — lacking the resources, plans, commitment, and support from elected officials — to handle the even greater numbers of older prisoners projected for the future, barring much needed changes to harsh “tough on crime” laws that lengthened sentences and reduced or eliminated opportunities for parole or early release.
Some prior related posts on older prisoners:
- "Aging Prisoners, Increasing Costs, and Geriatric Release"
- What should Florida and other states do with all their old sex offenders?
- "Aging inmates straining prison systems"
- The story of prisons becoming nursing homes in Virginia
- Missouri prison breaking in new geriatric wing
- "Older inmate population grows, puts strain on system"
"Big Law's Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms"
The title of this post is the title of this new paper available on SSRN from Charles Weisselberg and Su Li. I have long thought the relationship between defense representation and the development of criminal justice jurisprudence is a rich topic that rarely gets examined sufficiently. Consequently, I am looking forward to reading this paper and also am eager to hear others' thoughts on this paper and the topic more generally. Here is the paper's abstract:
Over the last three decades, corporate white-collar criminal defense and investigations practices have become established within the nation’s largest law firms. It did not used to be this way. White-collar work was not considered a legal specialty. And, historically, lawyers in the leading civil firms avoided criminal matters. But several developments occurred at once: firms grew dramatically, the norms within the firms changed, and new federal crimes and prosecution policies created enormous business opportunities for the large firms.
Using a unique data set, this Article profiles the Big Law partners now in the white-collar practice area, most of whom are male former federal prosecutors. With additional data and a case study, the Article explores the movement of partners from government and from other firms, the profitability of corporate white-collar work, and the prosecution policies that facilitate and are in turn affected by the growth of this lucrative practice within Big Law. These developments have important implications for the prosecution function, the wider criminal defense bar, the law firms, and women in public and private white-collar practices.
January 26, 2012
Another Ohio execution postponed due to execution protocol issues
As reported in this local article, headlined "Execution postponed for Ohio man in arson death," the on-going litigation over how Ohio conducts lethal injections has led to the postponement of another scheduled execution date. Here are the details:
Another Ohio execution has been postponed as state prison officials continue refining lethal-injection protocol to meet a federal judge’s requirements.
With the concurrence of Ohio Attorney General Mike DeWine, U.S. District Judge Gregory L. Frost today issued an order halting the scheduled Feb. 22 execution of Michael Webb, of Clermont County. Frost also permitted Webb to join a number of other death penalty defendants who are contesting the state’s lethal injection protocol.
DeWine personally participated in a conference call with Frost on the case yesterday, “We felt we had no choice,” DeWine said in an interview. “We’re not going to carry out another execution without it being perfect.”
He said the Department of Rehabilitation and Correction has made “great progress” in refining lethal injection procedures, “but we’re not quite done with that.”
Frost issued a decision earlier this month that included a scathing criticism of the state for failing to follow its established procedures in the Nov. 15 execution of Reginald Brooks at the Southern Ohio Correctional Facility near Lucasville. He called it a “curiously if not inexplicably self-inflicted wound."
Webb, 63, of Goshen, Ohio, was convicted and sentenced to death for setting fire to the family home, causing the death of his son, Mikey, 3½. Webb contends his is innocent and that someone else ignited the deadly arson fire.
DeWine said the state will continue its appeal to the U.S. Supreme Court in the case of Charles Lorraine, a Trumbull County killer whose Jan. 18 execution was postponed by Frost due to the lethal injection debate. “These are constitutional issues that have to be pursued,” DeWine said. “Our procedure is constitutional.”
The statements reported here from Ohio AG DeWine strike me a bit peculiar. These statements suggest to me that the Ohio officials are right now actively refining its lethal injection procedures, and are making “great progress” in those refinements, but are "not quite done" and will not "carry out another execution" until the process is "perfect." If this is, in fact, an accurate report of what the state is doing and its plans, I do not quite understand why the state should be pursuing its appeal of the January 18th stay of Charles Lorraine's execution.
In short, DeWine seems to be saying that the state is responding to the concerns expressed by Judge Frost. This, in turn, which would seem to counsel just returning to Frost to ask him to vacate the stay once the state gets done with its refinements rather than seeking to have the Supreme Court lift a stay which was concerned with an old (and now-refined) Ohio lethal injections protocol. Very curious.
Some related posts concerning Ohio's recent lethal injection litigation:
- Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
- New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
- Ohio decides not to appeal federal district court ruling in Smith halting execution
- Ohio ready to try to get its machinery of death back in operation
- Federal judge again halts Ohio execution because state not following its own protocol
- Sixth Circuit panel upholds stay of Ohio's next planned execution
- Ohio asks SCOTUS to vacate stay of state execution
House Judiciary member asks AG Holder good (and overdue) questions on pardon process
Over at Pardon Power (where PS Ruckman continues to do great work on the recent Mississippi pardon spree), there is now this notable new post reporting that a "Legislative Assistant in the Office of Rep. Robert C. 'Bobby' Scott (VA-03) -- member of the House Judiciary Committee -- has confirmed that the following questions have been submitted to U.S. Attorney General Eric Holder":
1. You testified when you were confirmed that you would study the problems with the clemency advisory process and fix them. Please let us know what you have found and what changes you have made or plan to make.
2. It has been reported that the pardon attorney no longer assigns commutation cases to staff attorneys, and does not write a recommendation in the large majority of these cases.
3. How does this fulfill the Department's responsibility to advise the president about the merits of each case?
4. Doesn't this make the commutation process meaningless for most applicants?
5. How can the pardon attorney himself conduct a meaningful review of thousands of commutation petitions?
6. Even if most of these should be denied, if no one is really looking at them, how do you know each one is without merit?
7. We can all agree that no system is perfect. The legal system is no exception. There are mistakes. The Constitution gives the president a role in fixing such mistakes. How does this procedure help the president do that?
8. How does the pardon office identify the rare exception that deserves a closer look? Political support? Media attention? If so, is that the best way — the most fair way — to make these decisions?
As the title to this post suggests, I view all of these question to AG holder to be good ones and long overdue. In addition, I would have added a substantantive query based on DOJ's testimony and recent Congressional work on crack sentencing: "In light of your Department's advocacy for crack and powder cocaine sentences to be equalized, as well as the passage of the Fair Sentencing Act in 2010, has any effort been made to give special attention or review to any commutation petitions filed by persons still serving very long crack sentences who may be able to make an especially convincing claim that their continued incarceration is unfair and serves no continued valid purpose?"
"Georgia chief justice calls for sentencing reforms"
The title of this post is the headline of this recent piece from the Atlanta Journal-Constitution, which gets started this way:
Georgia's chief justice on Wednesday called on lawmakers to enact sentencing reforms that steer nonviolent offenders away from costly prison sentences, saying, "we now know that being tough on crime is not enough."
In a 25-minute address before a joint session of the Legislature, Chief Justice Carol Hunstein asked lawmakers to adopt proposals by the Special Council on Criminal Justice Reform that studied Georgia's sentencing and corrections system. The state can no longer afford to spend more than $1 billion a year to maintain the nation's fourth-highest incarceration rate, she said.
The initiative, supported by Gov. Nathan Deal and Democratic and Republican leaders, calls for increased funding for drug, mental health and veterans' courts across the state and for other alternatives to prison. Legislation is being drafted and will be introduced in the coming weeks, said Brian Robinson, a spokesman in the governor's office. Deal's budget plan already asks for $10 million for new accountability courts.
Hunstein, a member of the special council, said its members "began united in our belief that warehousing nonviolent offenders who are addicted to drugs or are mentally ill does nothing to improve the public safety. Indeed, in the long run, it threatens it."
Accountability courts address the roots of crime and reduce recidivism, she said. "If we simply throw low-risk offenders into prison, rather than holding them accountable for their wrongdoing and addressing the source of their criminal behavior, they merely become hardened criminals who are more likely to re-offend when they are released."
In addition to viewing these comments by Georgia's chief justice to be substantively notable, I also find fascinating the tradition(?) of having the state's top jurist address a joint session of the state legislature. Imagine if there was such a tradition in the federal system: what do folks think Chief Justice Roberts might decided to talk about in an address to Congress?
Cost concerns stressed in pitch to abolish Oregon's death penalty
As reported in this piece in Seattle Weekly, which is headlined "Death Penalty Foes, Backing New Bill, Say Capital Cases Waste Money," a new effort to abolish the death penalty in Oregon is giving extra emphasis to fiscal issues. Here is how the piece begins (and links to notable reports about capital costs in Oregon):
As [here] reported yesterday, a new effort to abolish the death penalty is underway in the legislature. The debate over the ultimate punishment has been going on for decades, but it's not just about morality any more. Like so many things, it's also about the economy.
Driving to an Olympia press conference yesterday on the bill sponsored by Senator Debbie Regala, criminal defense attorney Mark Larranga spoke to SW about the state budget: "If you're looking for places to trim the fat, the death penalty is the perfect example."
His argument, derived in part from two studies he has has worked on (one for a group that advises lawyers working on capital cases, and another for the Washington State Bar Association) is strictly monetary. Since the death penalty was reenacted in this state in 1981, it has cost the state "millions and millions of dollars," Larranga says.
Precisely how much is hard to track down, partly because allocations come from different levels of government. But Larranga points to the recent trial of convicted Kirkland quadruple murderer Conner Schierman. Taking into account prosecution and public defense costs, he says the trial cost $2.5 million -- and that's not including the cost of appeals.
And yet, for all the money spent, Larranga says the "process has failed" on its own terms. In 30 years, just five people have been executed. Many more have been sentenced to death -- 32 to be precise -- but 17 of those sentences have been reversed on appeal and others have appeals pending.
Some recent and older related posts on the costs of capital punsihment:
- "Death Penalty: Should Cost Be A Factor?":
- Great new (though still dated) examination of the death penalty and plea bargaining
- "Could Abolishing the Death Penalty Help States Save Money?"
- Indiana Attorney General urges examination of death penalty's costs
- Georgia struggles to pay for a costly capital system
- States considering laying off the death penalty during tough economic times
- The economic case against the death penalty getting more and more attention
- More discussion of cost concerns in debates over the death penalty
- Capital case cost concerns continue to inform reform debate
- Still more discussion of the costs of the death penalty
- "Opponents Focus On Cost In Death Penalty Debate"
- NY Times editorial assails "High Cost of Death Row"
- New DPIC report assails costs (and opportunity costs) of death penalty administration
- Is it true that nobody's view on the death penalty can be influenced by its costs?
"The Price of Prisons: What Incarceration Costs Taxpayers"
The title of this post is the title of this important new (and relatively brief) report from the Vera Institute of Justice, which aspires to provide a complete picture of state prison costs to taxpayers. Here is the text of the e-mail blast I received about the report:
A newly released study by a team of Vera researchers calculates—for the first time—the full cost of prisons to taxpayers, including costs outside states’ corrections budgets. The Price of Prisons: What Incarceration Costs Taxpayers—published today—shows that in 40 participating states the aggregate cost of prisons in FY2010 was $38.8 billion, $5.4 billion more than their corrections budgets reflected.
Individually, states’ costs outside their corrections departments ranged from less than 1 percent of total prison costs in Arizona to as much as 34 percent in Connecticut. Detailed fact sheets for each of the 40 participating states are available [at this link].
The Price of Prisons is a joint product of Vera’s Center on Sentencing and Corrections and its Cost-Benefit Analysis Unit, and was conducted in partnership with the Public Safety Performance Project of the Pew Center on the States.
January 25, 2012
In Florida state court, epileptic gets nine years in prison for driving car
Though the title of this blog post is meant to be (unduly) sensational, this local article provides, as the late Paul Harvey might say, the rest of the sentencing story (which remains quite interesting, but is not quite as extreme as the post headline might suggest):
A Hillsborough county judge sentenced Emilio Santacruz to nine years in prison today for violating the terms of his probation and driving a vehicle.
Convicted of vehicular homicide, Santacruz received no jail time at his initial sentencing in 2004. Instead, he agreed to forgo driving for 15 years. Family members of victim Angie Talty, 79, were upset at the time. It was too light of a sentence, they thought, especially since Santacruz knew he wasn't supposed to be driving. He has epilepsy, and a doctor had told him not to drive.
Then, in late 2011, authorities arrested Santacruz after a Times report uncovered driving citations that showed he had been driving Miami-Dade County. Santacruz, authorities said, had obtained a license in 2008 using a different last name.
Wednesday afternoon, he entered a guilty plea on the probation violation in Hillsborough County court. Tears streaming, he said he couldn't ask for forgiveness. He called his application for a license a "mistake." But he said he did it for his family, to get a job and support his young daughter, Emily.
He said he'd do whatever the Circuit Judge Daniel Perry ordered, but begged the judge to let him go home. "Please, I'm asking you to trust in me for the last time," he said in Spanish, through a translator.
Perry said he faced a difficult decision. He could sentence Santacruz to up to 15 years in prison. The defense asked for a probation modification. Perry settled on nine years, the least under sentencing guidelines.
January 25, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (7) | TrackBack
Ex-HealthSouth Chief Scrushy gets a year off prior sentence at resentencing
As detailed in this local report, a notable white-collar resentencing finished up in federal court in Alabama today. Here are the particulars from the start of the report:
U.S. District Judge Mark Fuller granted a request from Richard Scrushy for a reduced sentence Wednesday, taking a year off the time he was sentenced to serve after being convicted on bribery and corruption charges.
Fuller reduced Scrushy's sentence from 82 months to 70 months, saying he was moved by the former HealthSouth CEO's account of his life in prison -- especially the difficulty of being separated from his wife and children -- while noting his work in prison ministries. "You are a different person today than the one I met in 2005 (at the start of the case)," Fuller told Scrushy just prior to sentencing. "You have paid a tremendous debt to society."
Scrushy's original release date was June 2013. His attorney, Arthur Leach, said that Scrushy now qualifies for a halfway house, and could be released from federal prison in Beaumont, Texas within the next 30 to 60 days, depending on the availability of a bed. Scrushy would serve out his remaining time at a halfway house in the Houston area, about 84 miles west of Beaumont. "What I really can't wait for is for him to be on the front porch of our house and watch our kids ride their bikes home from school," said Scrushy's wife, Leslie, after the hearing. "That's what I can't wait for."
Scrushy and former Alabama Gov. Don Siegelman were convicted in 2006 on bribery and corruption charges related to donations Scrushy made to Siegelman's 1999 campaign for a state lottery. Scrushy gave the campaign a $500,000 donation, split into two $250,000 checks. Following the donations, Scrushy was appointed to the Certificate of Need board, which oversees hospital improvements.
Both men have appealed the ruling. Siegelman, who was sentenced to just over seven years in prison, was released on an appeal bond in 2008. Scrushy has been incarcerated since being sentenced by Fuller in June 2007.
Intriguing story of federal sentencing guidelines producing disparity
One of many reasons I do not think it always sound or ever truly wise to use non-guideline sentencing decisions as a metric of increases federal sentencing disparity is because there are ways in which the federa; guidelines can sometimes produce disparity. An interesting example of this reality comes from this recent press report from Alabama, which is headlined "Two Alabama bank robbers, 2 different sentences: Judge laments 'quirk' in federal guidelines." Here are the details:
Two bank robbers with similar profiles appeared before U.S. District Judge Kristi DuBose in Mobile last week, but due to what the judge termed a "quirk" in the sentencing guidelines, one walked out with a lighter sentence.
Prior criminal convictions earned Jason Paul Davis, 26, the title of "career criminal," under the law, and the DuBose sentenced him to 12 years and 7 months in prison for holding up banks in Selma and Tennessee.
She noted that the other man, William Normer Overstreet, actually has a longer criminal record than Davis. Like Davis, he threatened a teller during his heist. Like Davis, he led authorities on a high-speed chase. And like Davis, he blamed his crime on a longtime drug addiction.
But one of the 48-year-old defendant’s convictions was too old to count against him, so he was not considered a "career criminal" under the guidelines. The recommended punishment was much less. "You need to convince me not to go with the government’s recommendation for the highest end of the guidelines," DuBose told defense attorney Larry Moorer, who was in the middle of making his case for leniency.
Citing the punishment she imposed on Davis the previous day, DuBose publicly toyed with the idea of sentencing Overstreet to a prison term longer than the guideline range. In the end, she settled on a prison term at the top of that range — 9 years and 7 months.
Triple killer in North Carolina taunts he is "gentleman of leisure" of death row
This new AP story from North Carolina, headlined "NC killer's taunt: Death row means leisure," highlights one reason it can be real hard to be a fan of an ineffective (or non-existent) system of capital punishment. Here is how the ugly story begins:
A death row inmate accused of killing three North Carolina women has written a taunting letter to his hometown newspaper, predicting he'll spend many years as a gentleman of leisure, watching color TV and enjoying frequent naps. "Kill me if you can, suckers," Danny Robbie Hembree Jr. wrote in a letter to The Gaston Gazette [available at this link]....
No one has been executed in North Carolina since 2006 due to a series of legal challenges about the use of lethal injection and whether executions must be overseen by a physician. "Is the public aware that the chances of my lawful murder taking place in the next 20 years if ever are very slim?" asked Hembree, 50.
"Is the public aware that I am a gentleman of leisure, watching color TV in the A.C., reading, taking naps at will, eating three well-balanced meals a day?" The inmate also pointed out he gets free government health care.
Hembree is on death row at Central Prison in Raleigh for suffocating Heather Catterton, 17, in 2009. He's also accused of the 2009 killing of 30-year-old Randi Dean Saldana, whose burned remains were found near Blacksburg, S.C. Hembree admitted to taking drugs and having sex with Catterton and Saldana the day they died, but he told jurors he did not kill them or dump their bodies.
He is scheduled to go on trial in March for Saldana's killing. He is also charged with killing 30-year-old Deborah Ratchford, whose body was found in a Gastonia cemetery in 1992.
Several commenters on the newspaper's website called Tuesday for Hembree to be put to death immediately. But some also questioned the decision to give Hembree any further attention.
January 24, 2012
"Out of 747,408 Registered Sex Offenders, How Many Are Actually Dangerous?"
The question in the title of this post is from the heading of this recent posting by Jason Sollum over at Reason. Here are excerpts (with links) that explain both clauses of the query:
The National Center for Missing & Exploited Children (NCMEC) reports that the number of registered sex offenders in the United States has increased by nearly a quarter in the last five years. The total in the most recent survey was 747,408, up from 606,816 in 2006, the first year NCMEC did a count.... NCMEC CEO Ernie Allen says registration "is a reasonable measure designed to provide important information to authorities and to help protect the public, particularly children." Yet his group does not say how many of the 747,408 people listed on sex offender registries are predatory criminals who actually pose a threat to public safety, probably because it does not know....
Allen avers that "these registries are especially important because of the high risk of re-offense by some of these offenders" (emphasis added). As I note in [this July 2011] Reason piece, recidivism rates for sex offenders seem to have been greatly exaggerated. In any case, if protecting potential victims is the raison d'etre for the registries, shouldn't they be limited to people who are likely to commit crimes against others?
Notable new resource from USSC concerning federal sentencing of veterans
I just came across on the US Sentencing Commission's webpage a new document that is an absolute must read for any and every person preparing for the federal sentencing of a military veteran. Here is the title (with a link) and brief description of the document from the USSC's website homepage:
Case Annotations and Resources: Military Service; USSG §5H1.11 Departures and Booker Variances (January 2012): This document contains case annotations to federal judicial opinions that involve USSG §5H1.11 departures and Booker variances related to a defendant's military service. It includes an introduction discussing how courts have recognized military service and mental health issues relating to combat service.
Here is an excerpt from the document's introduction:
In considering the relevance of military service to sentencing, courts are confronted with many issues. The length, nature, context, an experience of military service can vary widely. One defendant may have served entirely within the United States, perhaps in an administrative post similar to that of a civilian employee, while another may have served under harsh and dangerous combat conditions abroad. Or, a veteran-defendant may have developed a mental or physical condition while serving in the military, and that condition may have been the result of the military experience and may have contributed to commission of the crime. Courts have weighed and will continue to weigh various factors in any given case against the goals of sentencing.
Two aspects of military service have been important in cases involving veteran defendants. First, courts have considered the type of service and whether it warrants consideration based on a traditional practice of recognizing military service to one’s country. Second, courts have considered whether the defendant suffers from a mental or emotional condition that is traceable to the defendant’s military service and whether the condition contributed to commission of the offense. Accordingly, this report first takes note of traditional notions of leniency toward veterans, and next discusses some of the mental health and other consequences of military service that may be relevant to sentencing.
"The Caging of America: Why do we lock up so many people?"
The title of this post is the headline given to this extended and thoughtful new article by Adam Gopnik appearing in The New Yorker. The full piece is a must-read, in part because it defies easy labels and lacks many polemics. Here are a few of many interesting passages:
For most privileged, professional people, the experience of confinement is a mere brush, encountered after a kid’s arrest, say. For a great many poor people in America, particularly poor black men, prison is a destination that braids through an ordinary life, much as high school and college do for rich white ones. More than half of all black men without a high-school diploma go to prison at some time in their lives. Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today — perhaps the fundamental fact, as slavery was the fundamental fact of 1850. In truth, there are more black men in the grip of the criminal-justice system — in prison, on probation, or on parole — than were in slavery then. Over all, there are now more people under “correctional supervision” in America — more than six million — than were in the Gulag Archipelago under Stalin at its height. That city of the confined and the controlled, Lockuptown, is now the second largest in the United States....
[I]f, in 1980, someone had predicted that by 2012 New York City would have a crime rate so low that violent crime would have largely disappeared as a subject of conversation, he would have seemed not so much hopeful as crazy. Thirty years ago, crime was supposed to be a permanent feature of the city, produced by an alienated underclass of super-predators; now it isn’t. Something good happened to change it, and you might have supposed that the change would be an opportunity for celebration and optimism. Instead, we mostly content ourselves with grudging and sardonic references to the silly side of gentrification, along with a few all-purpose explanations, like broken-window policing. This is a general human truth: things that work interest us less than things that don’t....
[S]mall acts of social engineering, designed simply to stop crimes from happening, helped stop crime. In the nineties, the N.Y.P.D. began to control crime not by fighting minor crimes in safe places but by putting lots of cops in places where lots of crimes happened — “hot-spot policing.” The cops also began an aggressive, controversial program of “stop and frisk” — “designed to catch the sharks, not the dolphins,” as Jack Maple, one of its originators, described it — that involved what’s called pejoratively “profiling.” This was not so much racial, since in any given neighborhood all the suspects were likely to be of the same race or color, as social, involving the thousand small clues that policemen recognized already. Minority communities, [Professor Frank] Zimring emphasizes, paid a disproportionate price in kids stopped and frisked, and detained, but they also earned a disproportionate gain in crime reduced. “The poor pay more and get more” is Zimring’s way of putting it. He believes that a “light” program of stop-and-frisk could be less alienating and just as effective, and that by bringing down urban crime stop-and-frisk had the net effect of greatly reducing the number of poor minority kids in prison for long stretches.
January 23, 2012
Doesn't Heller and McDonald impact old precedents concerning federal FIP crimes?
The question in the title of this post is prompted an interesting (and I think incorrect) ruling today by a Tenth Circuit panel in US v. Games-Perez, No. 11-1011 (10th Cir. Jan. 23, 2012) (available here). The issue and basics of the ruling are explained in the majority opinions's first paragraph:
Defendant and appellant Miguel Games-Perez was indicted for possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). Claiming that he was unaware that he was actually a felon, Mr. Games-Perez filed a motion inlimine, seeking a pre-trial ruling that the government was required to prove that he actually knew he was a felon. When that motion was denied, Mr. Games-Perez filed a motion to enter a conditional guilty plea under Fed. R. Crim. P. 11(a)(2), asking to reserve the right to appeal the district court’s denial of his motion in limine. The district court granted Mr. Games-Perez’s motion, pursuant to which he entered a conditional guilty plea. The district court sentenced him to fiftyseven months’ imprisonment, followed by three years of supervised release. Mr. Games-Perez appeals his sentence, which we affirm.
The majority opinion affirms the ruling that the defendant need not know he was a felon in order to be guilty of the federal crime of "felon-in-possission" of a firearm by reaffirming a 1996 ruling of the circuit that no mens rea is required as to the "is a felon" element of this federal crime. Whether that was a sound ruling in 1996 is debatable, but it strikes me that it is a constitutionally problematic ruling in the wake of the SCOTUS Second Amendment rulings in Heller and McDonald that certain persons have a constitutional right to possess a firearm in certain circumstances.
Notably, in a separate lengthy concurrence, Judge Gorsuch assails the soundness of the 1996 precedent stressed by the majority with reference to the Second Amendment:
Following the statutory text would simply require the government to prove that the defendant knew of his prior felony conviction. And there’s nothing particularly strange about that. After all, there is “a long tradition of widespread lawful gun ownership by private individuals in this country,” and the Supreme Court has held the Second Amendment protects an individual’s right to own firearms and may not be infringed lightly. Staples v. United States, 511 U.S. 600, 610 (1994); District of Columbia v. Heller, 554 U.S. 570 (2008). At the same time, of course, the Court has expressly indicated that laws dispossessing felons are consistent with the Constitution. Heller, 554 U.S. at 626; but see United States v. McCane, 573 F.3d 1037, 1048-49 (10th Cir. 2009) (Tymkovich, J., concurring) (questioning the Court’s analysis on this score). And given all this, it is hardly crazy to think that in a § 922(g)(1) prosecution Congress might require the government to prove that the defendant had knowledge of the only fact (his felony status) separating criminal behavior from not just permissible, but constitutionally protected, conduct.
But, despite this astute analysis, Judge Gorsuch feel compelled to follow the circuit's 1996 precedent rather than to conclude (as his own reasoning suggests) that Heller and McDonald makes this old precedent constitutionally suspect. Curious -- and worrisome for anyone seriously committed to gun right and/or concerned about broad application of vague laws limiting gun possession.
SCOTUS sorts through applicability of SORNA in Reynolds
Though SCOTUS buzz this morning will surely be dominated by the GPS tracking Fourth Amendment case handed down this morning (the Jones case, in which the defendant sort of prevails via a number of intriguing (yet relatively brief) opinions), the Supreme Court also provided a little extra fun for sentencing fans still trying to make sense of the federal Sex Offender Registration and Notification Act (SORNA). Specifically, via a 7-2 ruling in Reynolds v. US (available here), the Justices provide an explanation about when and to whom SORNA applies to folks who committed sex offense prior to the act. Here is a snippet from the majority opinion by Justice Breyer, which explains the issue and the essence of the ruling:
The federal Sex Offender Registration and Notification Act (Act), 120 Stat. 590, 42 U. S. C. §16901 et seq. (2006 ed. and Supp. III), requires those convicted of certain sex crimes to provide state governments with (and to update) information, such as names and current addresses, for inclusion on state and federal sex offender registries. §§16912(a), 16913–16914, 16919(a) (2006 ed.). The Act makes it a crime for a person who is “required to register” under the Act and who “travels in interstate or foreign commerce” knowingly to “fai[l] to register or update a reg- istration . . . .” 18 U. S. C. §2250(a). The question before us concerns the date on which this federal registra- tion requirement took effect with respect to sex offenders convicted before the Act became law....
The question before us is whether the Act requires pre-Act offenders to register before the Attorney General validly specifies that the Act’s registration provisions ap- ply to them. We believe that it does not. For one thing, a natural reading of the textual language supports our conclusion....
Pre-Act offenders, aware of such complexities, lacunae, and difficulties [in figuring out to whom and how SORNA applies], might, on their own, reach different conclusions about whether, or how, the new registration requirements applied to them. A ruling from the Attorney General, however, could diminish or eliminate those uncertainties, thereby helping to eliminate the very kind of vagueness and uncertainty that criminal law must seek to avoid. Cf., e.g., United States v. Lanier, 520 U. S. 259, 266 (1997) (noting that “the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered”).
The dissent authored by Justice Scalia and joined by Justice Ginsburg begins this way and has makes a point about constitutional authority in developing its argument that struck me as blog-worthy:
In my view, the registration requirements of the Sex Offender Registration and Notification Act (Act), 120 Stat. 590, 42 U. S. C. §16901 et seq. (2006 ed. and Supp. III), apply of their own force, without action by the Attorney General. The Act’s statement that “[t]he Attorney General shall have the authority to specify the applicability of the [registration] requirements” to pre-Act sex offenders, §16913(d), is best understood as conferring on the Attorney General an authority to make exceptions to the otherwise applicable registration requirement....
Indeed, it is not entirely clear to me that Congress can constitutionally leave it to the Attorney General to decide—with no statutory standard whatever governing his discretion—whether a criminal statute will or will not apply to certain individuals. That seems to me sailing close to the wind with regard to the principle that legislative powers are nondelegable....
January 22, 2012
Another tough case — murder of guard by murderer serving LWOP — for death penalty abolitionist crowd
I am always impressed by the passion, and often moved by pragmatic arguments, of those categorically opposed to the punishment of death. But, as I have explained before, my basic commitment to consequentialist punishment perspectives makes me disinclined to be categorically opposed to any punishment and some crimes by some offenders almost seem to demand death (or something even more extreme?) as a punishment. The latest example of such a crime comes via this news report from Arkansas:
A female prison guard searching barracks for contraband was stabbed to death by an inmate [Friday] at the East Arkansas Unit near Brickeys, state prison officials said.
Sgt. Barbara Ester, 47, sustained multiple stab wounds in the attack and died later at a Memphis, Tenn., hospital, state Department of Correction spokeswoman Shea Wilson said. Wilson identified the inmate as Latavious Johnson, 30, a convicted murderer who is serving a sentence of life without parole.
The prison spokeswoman said Ester, a 12-year veteran of the prison system, was in a prison barracks checking on an inmate who was wearing an unauthorized pair of tennis shoes when the attack occurred about 12:30 p.m.
She was stabbed multiple times in the abdomen with what Wilson described as a shank but managed to walk to the prison unit’s infirmary before collapsing. She was transported to the Elvis Presley Memorial Trauma Center in Memphis, about 40 miles away, where she died, Wilson said.
If the death penalty is categorically unvailable as a punishment, I struggle to figure out just how a civilized society is can and should reasonably respond to a murderer serving LWOP who brutally murders a prison guard. I suppose we can (and should) just lock such a criminal forever after in a cage with no human contact and basic food rations, but such treatment strikes me as a form of torture that is even less humane than death as a punishment.
Effective coverage of the high costs of sex offender civil commitment program in Washington state
The Seattle Times has a very interesting set of pieces today discussing the intricate procedures and high (runaway?) costs involved in the operation of Washington's now-two-decades-old civil commitment program for sex offenders. This paper and its reporters merit kudos for conducting this in-depth investigation of the longest-running sex offender civil commitment program, and it will be interesting to see how policy-makers respond to a report that seems likely to prompt a political firestorm.
The lead piece, available here, has this headline and subheading: "State wastes millions helping sex predators avoid lockup: Washington's civil-commitment program that shields society from the worst sex offenders is burdened with unchecked legal costs and secrecy, The Seattle Times has found." Here are excerpts from the start of this lengthy article:
In 1990, Washington became the first state to pass a civil-commitment law, detaining offenders who are deemed by a judge or a jury to be too dangerous to set free. Since then, the controversial program has been plagued by runaway legal costs, a lack of financial oversight and layers of secrecy, The Seattle Times has found.
The state has little or no control over the $12 million a year in legal bills — nearly one-quarter of the [Special Commitment Center's] budget. This results in overbilling and waste of taxpayer money at a time when the agency overseeing the center, the Department of Social and Health Services (DSHS), faces deep budget cuts.
The civil-commitment law has created a cottage industry of forensic psychologists who have been paid millions of dollars for evaluating sex offenders and testifying across the state.
The Times determined that the busiest and best-paid experts include two psychologists who were fired in California, another who has flown here at state taxpayer expense from his New Zealand home, and one who has been paid $1.2 million over two years, some of it for work on cases in which judges questioned his credibility.
Defense teams have hired multiple psychologists — each charging tens of thousands of dollars — for a single case. In at least eight King County cases, the public paid for three or more forensic experts to evaluate the offender or testify for the defense. The state typically hired one expert. Both sides accuse each other of expert shopping.
Defense lawyers repeatedly delay trials, seeking continuances and appeals, which push costs up. In King County, it takes on average 3.5 years for a commitment case to go to trial; several have taken close to a decade. Meanwhile, offenders are held at McNeil Island, by far the most expensive confinement in the state at $173,000 a year per resident.
It takes up to $450,000 in legal costs to civilly commit a sex offender in King County. Defense outspends prosecution almost 2-to-1, says David Hackett, prosecutor in charge of civil commitments.
How some of the money is spent is a mystery. King County judges, at the request of defense attorneys who cited lawyer-client privilege, have indefinitely sealed hundreds of documents authorizing funds for defense experts. The Times fought successfully to get many of these records unsealed, which included psychologists' names and their fees. Hackett said the program needs a financial overhaul. "It's a morass," he said. "We've left the door to the candy store wide open."
Here are links to some of the companion pieces run with this lead article:
- Sex offenders' legal costs were kept secret from public
- Timeline: Evolution of Washington's troubled civil-commitment program
- Graphic: How a sex offender gets committed to McNeil Island
By serving federal prosecutors, Galleon trader avoids serving prison time
This Bloomberg article, headlined "Ex-Galleon Trader Slaine Who Led U.S. to Probe Rajaratnam Gets Probation," provides a great example of the sentencing reality that cooperating with federal prosecutors can often provide the most effective means for serious criminals to avoid spending time in federal prison. Here are some of the details of the latest sentencing from a high-profile white-collar case:
Ex-Galleon Group LLC trader David Slaine, who helped lead U.S. authorities to investigate the hedge fund firm’s co-founder, Raj Rajaratnam, was sentenced to three years probation for securities fraud.
Slaine wore a wire to record dozens of conversations with suspects including ex-Galleon trader Zvi Goffer who were later charged with insider trading. He provided help that prosecutors from the office of Manhattan U.S. Attorney Preet Bharara called “nothing short of extraordinary.”
U.S. District Judge Richard Sullivan, who sentenced Slaine yesterday in Manhattan federal court, also ordered him to perform 300 hours of community service and pay a $500,000 fine. Sullivan praised Slaine’s cooperation, which began in 2007. “Mr. Slaine, you have your life back,” Sullivan said at the end of the sentencing hearing. “I think you’ve earned it, by virtue of the work you’ve done over the last five years.”
Slaine’s evidence helped spur what became the biggest probe of insider trading at hedge funds, prosecutors said in a letter to Sullivan this month. His lawyer, Stephen Kaufman, said Slaine already has paid $836,000 in criminal forfeitures and to the U.S. Securities and Exchange Commission.
Slaine is now an investor at Spot, a Manhattan-based chain that provides training, grooming and daycare for dogs, according to Kaufman. Slaine also works there, Kaufman said....
Slaine, who pleaded guilty to conspiracy and securities fraud in December 2009, testified at the trial of Goffer, his brother Emanuel Goffer and Michael Kimelman, that he cooperated with federal agents for about 2 1/2 years to try to avoid prison. He faced a sentence of as long as 25 years in prison. Slaine testified that he became friends in the late 1980s or early 1990s with Craig Drimal, another former trader who pleaded guilty....
The SEC claimed Slaine used illegal inside information to trade for his own account and for Chelsey Capital. He made more than 20 trades in his own account based on illegal tips, personally profiting by more than $500,000. Both sides agreed for sentencing purposes that the total illegal gain attributable to Slaine was $2.5 million to $7 million.
Slaine was approached by the government in July 2007, according to the letter. He told investigators about possible insider trading by Drimal, then agreed to wear a wire and record conversations with him. The conversations with Drimal led to the Goffers and Kimelman, whom Slaine also recorded at the direction of the Federal Bureau of Investigation, prosecutors said.