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October 13, 2012

Might it hurt Rajat Gupta to get sentencing support letters from the 1%?

The question in the title of this post is prompted by this notable new article in the Wall Street Journal headlined "Dear Judge, Gupta Is a Good Man: Bill Gates, Kofi Annan Among Those Writing in Support of Inside Tipster Ahead of His Sentencing." Here are the story basics:

Rajat Gupta, the former Goldman Sachs Group Inc. director convicted of insider trading, has lost his powerful spots on corporate boards, his reputation and likely his freedom when a judge sentences him later this month. But Mr. Gupta, 63 years old, still has plenty of powerful backers, including Bill Gates and Kofi Annan, and they are lining up to support him with letters to the judge.

Mr. Gates, co-founder of Microsoft Corp., and Mr. Annan, former secretary-general of the United Nations, are among those who have written letters to U.S. District Judge Jed Rakoff on Mr. Gupta's behalf. More than 200 letters have been sent to the judge through Mr. Gupta's lawyers ahead of the Oct. 24 sentencing, according to the submissions, which were examined by The Wall Street Journal....

Mr. Gupta was convicted in June of giving hedge-fund manager Raj Rajaratnam, his friend and business associate, inside information about Goldman's financial results and an investment by Berkshire Hathaway Inc.'s Warren Buffett during the financial crisis. Prosecutors said Mr. Rajaratnam's hedge fund made millions based on Mr. Gupta's tips, while Mr. Gupta, also a former director at Procter & Gamble Co., benefited from the leaks because of their friendship and mutual business interests.

Prosecutors are likely to argue that federal sentencing guidelines dictate a term for Mr. Gupta that could exceed 10 years, based on the illicit trading gains by Mr. Rajaratnam's fund. But the guidelines are advisory, and Judge Rakoff usually hands down less than they suggest....

Mr. Gupta, the former head of McKinsey & Co., the global corporate consulting firm, was active in the philanthropic and charitable communities in the U.S., in his native India and other countries. Letters from his supporters include those from leaders of companies, academics and Wall Street figures. His family also wrote to the judge, including his wife, four daughters and an 84-year-old aunt in India....

It is common for defendants to ask friends, family and prominent figures they may have encountered in their lives to write letters on their behalf to the court ahead of sentencing. Defense lawyers routinely cite such letters at sentencing in hopes of providing a fuller picture of a defendant beyond the crime they've been convicted of committing, particularly when it comes to a defendant's charitable works....

Mr. Gupta's submissions include letters from a class of luminaries not often seen at sentencing, but reflective of those he associated with as a top executive at McKinsey and through the philanthropic causes he supported.

In prior posts and comments, there has been an interesting and robust discussion about whether and how character letters from family, friends, and colleagues can play a role in post-Booker federal sentencing decision-making.  In this case, as the question in the title to this post suggests, I cannot help but wonder if the very high-profile nature of the folks writing on Gupta's behalf could, directly or indirectly, risk creating the impression that Gupta's extraordinary prominence and connections provide a special reason not to give him any kind of special break at his federal sentencing.

Related posts on upcoming Gupta sentencing:

October 13, 2012 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Noting the intriguingly unpredictable politics around Washington's marijuana initiative

This New York Times article, headlined "Marijuana Referendum Divides Both Sides," provides an intriguing reports on the political debates in Washington state over its ballot initiative to repeal the state's pot prohibition. Here is how the piece starts:

Most efforts to legalize marijuana possession have generally run aground in the face of unified opposition. Mothers Against Drunk Driving led the charge in helping to defeat a ballot measure in California in 2010. Law enforcement groups, not too surprisingly, have also been largely opposed in the past.

But in Washington State, as a measure that would legalize possession of small amounts of marijuana heads toward a vote next month, the opposition forces have been divided, raising hopes by marijuana advocates of a breakthrough. A poll conducted last month by Elway Research showed that 50 percent of voters either definitely or probably were in favor of legalizing the possession of an ounce of marijuana or less.

Some former law enforcement officials have appeared in television ads in favor of the legalization. Safety concerns about drugged driving have been muted by a provision of the measure, called Initiative 502, that would create a standard to measure impairment. A promised flood of tax money to drug and alcohol treatment programs from legal marijuana sales has also kept some antidrug groups on the sidelines.

But if opponents are in disarray or disagreement, supporters of legalization are as well. And that is making the outcome hard to predict, both sides say. In fact, some of the most vehement opposition to the initiative is coming from what might seem the least likely corner of all: medical marijuana users. Organized through a group called No on I-502, they say the plan, especially the new legal standard of impairment while driving, creates a new legal risk for regular users because THC, marijuana’s primary psychoactive ingredient, can stay in the bloodstream for days after consumption, and thus be measurable by a blood test whether a person is impaired or not.

Some recent and older related posts:

October 13, 2012 in Campaign 2012 and sentencing issues , Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

October 12, 2012

Texas judge gives 99 years to abusive "Super Glue" mom

In this prior post, I spotlighted the notable sentencing proceeding in Texas for the abusive mom who glued her toddler to a wall as part of a brutal episode. This new AP article, headlined "Mom gets 99 years in prison for gluing tot's hands," reports on the sentencing outcome:

A Dallas woman who beat her 2-year-old daughter and glued the toddler's hands to a wall because she was struggling with potty training was sentenced Friday to 99 years in prison.

Family members in the courtroom sobbed loudly as the judge announced Elizabeth Escalona's punishment.  Escalona pleaded guilty in July to felony injury to a child, but her mother and sister had asked the court for leniency on her behalf.

Dallas County prosecutor Eren Price said the 23-year-old mother of five had not taken responsibility for her actions.  "Elizabeth lies to hide the evil," Price said.

Escalona's other children told authorities that their mother attacked Jocelyn Cedillo in September 2011 due to potty training problems.  Police say she kicked her daughter in the stomach, beat her with a milk jug, then stuck her hands to an apartment wall with an adhesive commonly known as Super Glue.

Jocelyn suffered bleeding in her brain, a fractured rib, multiple bruises and bite marks, and was in a coma for a couple of days, a doctor testified at the sentencing hearing. Some skin had been torn off her hands, where doctors also found glue residue and white paint chips from the apartment wall.

"On Sept. 7, 2011, you savagely beat your child to the edge of death," State District Judge Larry Mitchell said. "For this you must be punished." Jocelyn has since recovered and her grandmother now cares for her along with Elizabeth Escalona's four other children, including a baby born this year.

Prosecutors portrayed Escalona as an unfit mother with a history of violence. They played recordings in which Escalona as a teenager threatened to kill her mother. They said she had been a gang member and that she started smoking marijuana at age 11. "Only a monster glues her daughter's hands to the wall," Price said during the hearing.

Escalona asked for leniency, telling the judge she was no longer the monster who committed the attack. "I will never forgive myself for what I did to my own daughter," she said.

Escalona had faced from probation to life in prison. Prosecutors initially sought a 45-year sentence, but during closing arguments Price said she wanted Escalona to be sentenced to life in prison. Defense attorney Angie N'Duka repeated that Escalona was not a monster and that she was deserving of probation or a short sentence....

Price said Escalona will be eligible for parole in 30 years. N'Duka said she plans to appeal. Escalona's family has acknowledged their dismay and anger following the attack, but her sister and her mother nonetheless asked the judge for leniency.

October 12, 2012 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (26) | TrackBack

NPR piece spotlights Ohio success with sentencing reforms and reducing recidivism

I am very pleased to see that my state is getting well-deserved national attention for its recent success with sentencing and corrections reforms.  Specifically, NPR's Talk of the Nation had this lengthy segment earlier this week on Ohio's reforms under the heading "Programs Keep Inmates From Returning To Prison." Here is how the NPR site sets up the discussion:

States pay tens of thousands of dollars a year to house each inmate. Some states are rethinking the way they spend that money. In Ohio, sentencing reform, increased support for former inmates, and rehabilitation and education programs for current prisoners have helped keep prisoners from returning.

October 12, 2012 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

After capital repeal, should comdemned Connecticut murderer be able to seek his execution?

The question in the title of this post is prompted by this local article from Connecticut headlined "Murderer Steven Hayes Says He Wants To Die," which starts this way:

Steven Hayes, the notorious killer who sits on death row for the 2007 slayings of a Cheshire woman and her two daughters, wants to waive his appeals and proceed to his execution, a path that serial killer Michael Ross took before being put to death in 2005.

In a letter to the Courant, Hayes, 49, said he is the subject of "cruel and unusual punishment" by prison staff at Northern Correctional Institution in Somers, treatment he claims has "been escalating" since March 2012. "I was willing to live with the intense grief from my past actions, and I still am willing," Hayes wrote in the letter, dated Sept. 29, 2012. "However, I cannot live with the intense tourcher (sic), torment, harassment, and the resulting psychological trauma dished out by the Dept. of Corr. staff here at Northern. I was sentenced to death, not sentenced to tourcher (sic) and punitive treatment until death."

Hayes said he would be making "a formal announcement" about his decision to go to "the death chamber" during "the 2nd week of October," but he did not say how he would announce it.

Michael Courtney, head of the state public defenders office's capital defense unit, which is handling Hayes' appeal, declined to discuss any recent discussions he and other attorneys have had with Hayes. "It's not uncommon for death-row inmates who are held in isolation with little or no connection to the outside world or independent mental-health treatment to deteriorate to the point of considering volunteering for execution," Courtney said.

In Connecticut, the appeals process involves an automatic sentence review by the state Supreme Court, so Hayes' decision would not affect that. If the appeal is unsuccessful, Hayes could then forgo the usual progression of state habeas corpus motions and federal appeals that occur before a convict is put to death. With those appeals in place, legal experts have said, it could easily be 20 years or longer before Hayes is executed.

What Hayes wrote in the Sept. 29 letter conflicts with what he told The Courant earlier this year. In a prison interview, Hayes said he promised one of his defense attorneys, Thomas J. Ullmann, that he would not waive his appeals and seek execution.

Ullmann confirmed the conversation, telling The Courant in July: "He has made a commitment to me that he will not pull a Michael Ross." Ross decided to waive his appeals in 2004 and, after a protracted legal battle, died by lethal injection in May 2005. Ross was the first person executed in Connecticut since 1960. He had spent 18 years on death row.

Word of Hayes' decision to seek execution comes while questions loom about whether those on death row should still face execution in light of the repeal last April of the death penalty.

Though state legislators abolished capital punishment for future offenses, Hayes and the other nine men on death row and those with pending death-eligible cases still face execution. The state Supreme Court has agreed to consider the constitutionality of the death penalty for the condemned inmates in light of the repeal. Those arguments will be made at a later date.

October 12, 2012 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

"Lethal Connection: The 'War on Drugs' and Death Sentencing"

The title of this post is the title of this interesting short piece by David McCord now available via SSRN. Here is the abstract:

Many defendants on death row committed murders in which illegal drugs were somehow involved.  This Article attempts to explain and quantify the involvement of drugs in the cases of death-sentenced defendants during the six year period of 2004 to 2009 and to imagine the ways that death rows would look different if there had been no "War on Drugs."  The Article will aslo examine the effects of drug-involved death sentences with respect to gender, race, and ethnicity (particularly Latino ethnicity).

October 12, 2012 in Death Penalty Reforms, Drug Offense Sentencing, Race, Class, and Gender | Permalink | Comments (1) | TrackBack

October 11, 2012

Is there any chance for any crime and punishment discussion at tonight's VP debate?

In this post before last week's dog-fight in Denver between the Prez candidates, I correctly predicted that there would no be a single question focused on criminal justice issues (despite the reality that a significant portion of federal government spending and a massive portion of state government spending is devoted to these big government programs).  Tonight's scheduled contest in Kentucky between the VP candidates seems pretty sure to follow the same script.  (That said, a variation of Murphy's Law might suggest that there will be lots of crime and punishment talk because I will not be able to watch the debate while traveling this evening out to California to participate in this great event at Loyola Law School.)

In this prior post and in many others, I have already detailed some of the federal criminal justice questions I would love to hear asked of all the candidates this season.  Perhaps readers will join in my (futile?) debate game by adding some queries of interest on these topics via the comments.

A few recent and older related posts: 

October 11, 2012 in Campaign 2012 and sentencing issues , Who Sentences? | Permalink | Comments (2) | TrackBack

New report from Washington state indicates over 12,000 yearly marijuana arrests over last decade

As reported in this local press piece, headlined "241,000 marijuana arrests in Washington over 25 years, costing $300 million," the significant impact and important of pot prohibition on criminal justice administration in Washington state is discussed in a notable new analysis released today by the Marijuana Arrest Research Project.   Here are excerpts from the press report:

A new analysis of crime data has found more than 241,000 people in Washington were arrested for marijuana possession over the past 25 years, most of them in the past 10 years.

The report [available here], by a New York-based group of academics, conservatively estimates those arrests cost $305,714,500 in police and court during the past 25 years, and $194,026,500 in the past 10 years, a figure that excludes the cost of defense and court fines.

The report underscores a key argument for Initiative 502, a measure on the November ballot, which would decriminalize small amounts of marijuana. Report co-author Harry Levine, a sociology professor at City University of New York, said his group is not funded by any of the large institutional donors to I-502; none of the authors contributed I-502, according to campaign finance reports. But the timing is not coincidental, said Levine. “There is an intent to capture people’s attention about what is going on,” he said.

The data also underscores earlier findings about racial disproportionality in drug arrests. Although white people report use of marijuana at slightly higher rates than African-Americans or Latinos; blacks were arrested for marijuana possession at more than twice the rate of whites, and Latinos were arrested at rates more than 50% higher than whites....

Levine said it is impossible to tell if people were arrested for marijuana in addition to another crime because of the way the data is reported.  But based on other studies, he believes a large majority of the arrests were for marijuana possession alone.

The report uses 25 years of data — 1986 to 2010 — from the FBI’s Uniform Crime Reports, and extrapolates costs based on estimates by the Washington State Institute for Public Policy.

Levine said the report analyzed arrests — not convictions — because arrests also carry a heavy price. The report notes that some online criminal background check services include arrests, and the arrest reports cannot be easily expunged.  “Contrary to what people think, the simple arrests carry enormous consequences way behind the fines and the night in jail,” said Levine.

October 11, 2012 in Pot Prohibition Issues, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0) | TrackBack

Split Sixth Circuit opinion addresses range of child sex offense sentencing issues

The Sixth Circuit has a lengthy split opinion today in US v. Zobel, No. 11-3341 (6th Cir. Oct. 11, 2012) (available here), which covers a lot of sentencing issues that seems to arise a lot in the all-too-common setting of adult men luring girls to engage in illegal sexual activity.  Here is how the majority opinion gets started:

Defendant–appellant David Zobel appeals his sentence for knowingly coercing and enticing a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).  After Zobel pled guilty, the district court imposed a sentence of 150 months of imprisonment, which represented a 15 month upward variance from the upper-end of the Guidelines range. The district court also imposed several special conditions of supervised release for life, which prohibit Zobel, inter alia, from having contact with minors absent prior judicial approval, loitering in areas where children tend to congregate, and possessing or viewing pornography or materials that are “sexually explicit or suggestive.”  Zobel argues that his sentence — both the term of incarceration and several special conditions — was both procedurally and substantively unreasonable.

For the reasons that follow, we vacate the part of the special condition that bans possessing or accessing “sexually suggestive” materials, affirm the remainder of the sentence, and remand for resentencing proceedings consistent with this opinion.

A brief dissent by Judge Moore follows the lengthy majority opinion, and it gets started this way:

A district court must state in open court and in a written statement of reasons the specific reason it is imposing an outside-guidelines sentence on a defendant. 18 U.S.C. § 3553(c)(2).  Because the district court failed to state a specific reason for its fifteen-month upward variance both in open court and in its written statement of reasons, the district court committed plain error.  The majority, however, nonetheless affirms. I respectfully dissent.

October 11, 2012 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

You be the sentencing judge: what is a fitting sentence for abusive "Super Glue" mom?

This AP article, headlined "Mom Who Glued Toddler's Hands Faces Sentencing," reports an on-going sentencing proceeding in Texas state court. The story prompts the challenge in the title of this post and my broader interest in readers' sentencing instincts in response to a high-profile case of child abuse:

A mother who admitted to beating her 2-year-old daughter and gluing the child's hands faces anything from probation to a life in prison for her crimes.

Elizabeth Escalona's sentencing hearing will continue Thursday, a day after she pleaded for leniency, saying she was no longer the "monster" who committed the attack.  "I will never forgive myself for what I did to my own daughter," said Elizabeth Escalona, who pleaded guilty in July to felony injury to a child.

Police say Escalona lost her temper last year with Jocelyn Cedillo over potty training problems.  Escalona beat and kicked Jocelyn before sticking her hands to an apartment wall using an adhesive commonly known as Super Glue.  The child was hospitalized for days.

Judge Larry Mitchell has a wide range in choosing Escalona's sentence: Anything from probation to life in prison is possible.  Prosecutors are asking for a 45-year sentence.

Defense attorney Angie N'Duka asked Escalona what she thought of photos that prosecutors presented earlier this week showing her daughter's injuries.  "Only a monster does that," Escalona responded. N'Duka then asked Escalona whether she thought she was a monster. "When that happened, I was," Escalona replied.

Escalona asked Mitchell for an opportunity to show she had changed, adding that she would accept any sentence as fair. "I want everybody to know I'm not a monster," Escalona said. "I love my kids." Escalona admitted to hitting and kicking her daughter but said she didn't recall why she did it.

Prosecutors have portrayed Escalona as an unfit mother with a history of violence.  They have played recordings in which Escalona as a teenager threatened to kill her mother.  They said she was a former gang member who started smoking marijuana at age 11.

Jocelyn suffered bleeding in her brain, a fractured rib, multiple bruises and bite marks, and was in a coma for a couple of days. Some skin had been torn off her hands, where doctors also found glue residue and white paint chips from the apartment wall, witnesses testified.

Escalona's family has acknowledged their dismay and anger following the attack, but both her mother and sister asked the judge for leniency.  "I wanted an explanation," said Margaret Escalona, her sister. "I wanted to know what happened.  I wanted to beat my sister up."

Ofelia Escalona, Elizabeth's mother, said her daughter hit her as a child, but she also said Elizabeth was abused growing up.  Both Ofelia and Margaret Escalona argued that Elizabeth needed more help and not prison.  "Her being taken away won't help any," Margaret Escalona said.

Counselor Melanie Davis testified Wednesday that she believes from the conversations she has had with Elizabeth Escalona that the mother loves her five children, one of whom was born after the attack.  Davis said she has been counseling Escalona since June, nine months after her arrest.

I find this story interesting for many reasons: (1) despite modern structured sentencing reforms, here a sentencing judge still has unfettered discretion to impose a sentence anywhere from probation to life in prison; (2) though not asking for life, prosecutors' request for a 45-year prison term suggests they state think defendant should not be locked up until she is very old (and no longer able to have more kids); (3) the only man mentioned in this story is the sentencing judge (though I am inclined to assume at least one of the prosecutors is a man); (4) Texas has a procedure for jury sentencing, and it is interesting to speculate whether we think a fitting sentence would be more likely to emerge from a multi-member jury deliberating about these matters rather than from a single sentencing judge.

October 11, 2012 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

October 10, 2012

"Arizona's Ring Cycle"

The title of this post is the title of this new article by Justin Marceau available via SSRN. Here is the abstract:

In Ring, the Supreme Court held that the finding of an aggravating factor, as required to be eligible for a sentence of death under the Arizona sentencing scheme, could not be made by a judge alone.  Each exclusively judge-based sentence of death that was pending at the time Ring was handed down spurred a duty on the part of state courts to either change the sentence from death to life or remand the case for re-sentencing under a new capital sentencing statute.  The death penalty “ring cycle” then is comprised of the remands and re-sentencings as necessary to comply with the Sixth Amendment.  This Article is the first to provide an empirical examination of the results in Ring remand cases.  Specifically, the Article details the Ring remand procedures and the results of these remands as they played out in Arizona.

October 10, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Unaware of guideline enhancements, wanna-be federal inmate seeks only $1 in bank robbery

This local story, headlined "Police: Bank robbery note sought $1," reports on a notable (and insufficient?) effort by a person seeking three squares and a bed at the local federal prison.  Here are the details:

A local man was lodged in the county prison after he attempted to rob the AmeriServ bank branch for $1 Friday in an apparent attempt to be charged with a federal crime and placed in the federal prison at Loretto.

Jeffery M. McMullen, 50, of the 700 block of Oak Street, is charged with three robbery offenses in the incident. Two tellers thought it was a joke before a third bank employee handed him $1 and called police. He was arraigned before District Judge Michael Zungali, who ordered that McMullen must have a mental exam before he can be released from prison....

Police Sgt. Isaac Hassen alleged in a sworn affidavit that McMullen entered the bank shortly before 1:30 p.m., went to a teller, took out paper and a pen and wrote a note demanding $1. “He told her he would wait until police arrived,” Hassen said.

The teller, knowing McMullen as a regular customer, told him she didn’t understand what he wanted her to do, thinking it was a joke, the officer said.  When the suspect told her it was a robbery, she told him to go to the next window, it was alleged.  The suspect then walked to the next window, where he got angry and demanded money, it’s alleged.  The second teller also thought it was a joke, police said.

When the first teller asked him whether he wanted her to get the bank manager and started to walk away, he tried to reach into the teller’s money drawer, it was alleged.  He also told her that he wanted the police to come.  The teller was told by the suspect “to give him the money so no one got hurt,” Hassen alleged.

The police alleged that McMullen also spoke with the new accounts employee and told her he was robbing the bank for $1.  She told police that she took $1 from her purse and gave it to him, the police officer said.  McMullen was taken into custody at the bank without incident.

In the note, McMullen allegedly wrote, “FBI custody. Preferbly (sic) Loretto Pa. No press. Seal all files.”  In another note, the polite robber also allegedly wrote, “Federal bank robbery. Please hand over $1.00.”

In addition to reminding me of one of my favorite scenes from an early Woody Allen movie, this story provides still more evidence that would-be criminals still do not know how the federal sentencing system works. If the robber here wanted to ensure a lengthy stay in the federal pen, his note should have had his note ask for $1 billion and said he had a gun. Such a note would have helped ensure his federal guideline calculation include a huge increase for intended loss and for a threat of violence, and thus would help him arrange an extra long stay at the federal prison at Loretto.

October 10, 2012 in Federal Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (7) | TrackBack

New report assails subjecting youthful offenders to solitary confinement

Us1012_reportcoverAs detailed in this press release, two prominent rights groups have a big new report on the use of solitary confinement for young offenders.  Here are details via the press release:

Young people are held in solitary confinement in jails and prisons across the United States, often for weeks or months at a time, Human Rights Watch and the American Civil Liberties Union (ACLU) said in a report released today.

The 141-page report, “Growing Up Locked Down: Youth in Solitary Confinement in Jails and Prisons Across the United States,” is based on research in both US jails and prisons in five states ­– Colorado, Florida, Michigan, New York, and Pennsylvania – and correspondence with young people in 14 others. The isolation of solitary confinement causes anguish, provokes serious mental and physical health problems, and works against rehabilitation for teenagers, Human Rights Watch and the ACLU found.

“Locking kids in solitary confinement with little or no contact with other people is cruel, harmful, and unnecessary,” said Ian Kysel, Aryeh Neier Fellow with Human Rights Watch and the ACLU and author of the report. “Normal human interaction is essential to the healthy development and rehabilitation of young people; to cut that off helps nobody.”

The report is based on interviews and correspondence with more than 125 young people in 19 states who spent time in solitary confinement while under age 18, as well as with jail and/or prison officials in 10 states.

Human Rights Watch and the ACLU estimate that in 2011, more than 95,000 young people under age 18 were held in prisons and jails. A significant number of these facilities use solitary confinement – for days, weeks, months, or even years – to punish, protect, house, or treat some of the young people held there....

The New York City Department of Corrections, for example, reported that in fiscal year 2012, which ended in June, more than 14 percent of all adolescents were held in at least one period of solitary confinement while detained. The average length of time young people spent in solitary confinement at Rikers Island was 43 days. More than 48 percent of adolescents at Rikers have diagnosed mental health problems....

The solitary confinement of young people under age 18 is itself a serious human rights violation and can constitute cruel, inhuman, or degrading treatment under international human rights law, Human Rights Watch and the ACLU said. Conditions that compound the harm of solitary confinement, such as denial of educational programming, exercise, or family visits, often constitute independent, serious human rights violations.

A number of corrections officials have begun to recognize and speak against the use of solitary confinement, saying that it is costly, ineffective, and harmful.

There are alternative ways to address the problems – whether disciplinary, administrative, protective, or medical – that officials typically cite to justify using solitary confinement, while taking into account the rights and special needs of adolescents, Human Rights Watch and the ACLU said. Youth could be housed in specialized facilities organized to encourage positive behavior. And punishment should be proportional to the infraction, using any short-term isolation as a rare exception.

The federal and state governments should ban placing youth in solitary confinement, Human Rights Watch and the ACLU said. They should also prohibit housing adolescents with adults or in jails and prisons designed to house adults, and strictly regulate and monitor all forms of isolation of young people.

October 10, 2012 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

October 9, 2012

Gearing up for high-profile sentencing of high-profile insider trading defendant

MI-BR721_GUPTA_NS_20121009182408The Wall Street Journal has this notable new article, headlined "In Gupta Sentencing, a Judgment Call," about a high-profile federal sentencing of a high-profile white-collar defendant slated for later this month. Here is how the piece gets started:

Former Goldman Sachs Group Inc. director Rajat Gupta is the highest-profile of more than 70 defendants convicted of insider trading in New York federal court in the past three years.

But this month he will likely receive a more lenient sentence than the 11-year-prison term given to Raj Rajaratnam, to whom Mr. Gupta provided his illegal leaks, legal experts say.

The sentence may have reverberations beyond the 63-year-old Mr. Gupta, a former chief of consulting giant McKinsey & Co. It will be widely watched in executive suites nationwide because it will be among the first handed down to a major corporate figure in the recent insider-trading crackdown. Previous sentences have largely involved traders, lawyers, lower-rung corporate employees and others.

Mr. Gupta, who was convicted in June of three counts of securities fraud relating to tips about Goldman and one count of conspiracy, didn't trade or profit directly from his illegal tips. Before the conviction, he had a long and stellar career in corporate America and philanthropy.

All this will be balanced against the nature of the crimes and the need to discourage others from similar offenses when U.S. District Judge Jed Rakoff hands down his sentence, scheduled for Oct. 24. Judge Rakoff often imposes sentences further below federal sentencing guidelines than some other judges do, according to a Wall Street Journal analysis.

"It's tough for a judge, because on the one hand, you know you are supposed to deter others to make a statement," said Peter Zeidenberg, a former prosecutor and now a white-collar defense attorney in Washington. "On the other hand, you should be looking at individuals as individuals and not as a poster board."

Federal guidelines could dictate a sentencing range for Mr. Gupta of up to 10 years, if Judge Rakoff agrees that the tips produced an amount approaching what prosecutors said in trial exhibits were at least $10 million in illicit profits earned and losses avoided by the Galleon Group, Mr. Rajaratnam's hedge fund. That would include extra time if Judge Rakoff found Mr. Gupta abused a position of trust as a corporate board member.

The range also could be less if the judge determines the illegal gains were less than $7 million, or based on other factors the defense might put forward. Judges must calculate and consider the guidelines at sentencing but needn't impose them. Judge Rakoff in the past has criticized them as "a mirage of something that can be measured."

Since 2010, Judge Rakoff has imposed an average sentence of 21 months on insider-trading defendants who didn't cooperate with prosecutors—about 38% below the guideline minimum, according to the Journal analysis.

By comparison, U.S. District Judge Richard Sullivan issued seven sentences in that period averaging 6.3% below the guideline minimum. U.S. District Judge Paul Crotty issued three sentences at 20.3% less than the minimum.

And former U.S. District Judge Richard Holwell issued three at 39% under the minimum. Mr. Holwell's 11-year sentence for Mr. Rajaratnam was 100 months below the minimum; he gave 30 months to Danielle Chiesi, Mr. Rajaratnam's co-conspirator, seven months under her range.

October 9, 2012 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (1) | TrackBack

Interesting Third Circuit ruling addresses state-federal and federal-federal sex offense disparity claim

The Third Circuit has an intriguing little federal sentencing decision today in US v. Begin, No. 11-3896 (3d Cir. Oct. 9, 2012) (available here).  Here his how the majority opinion starts:

Michael Eugene Begin appeals from a final judgment of conviction and sentence on charges related to his use of the internet and a cellular phone to send sexual messages and photographs to a minor in order to persuade her to have sex with him.  Begin pled guilty and was sentenced to 240 months' imprisonment, representing a 30-month upward departure from the top of his advisory Sentencing Guidelines range.  On appeal, Begin argues that his sentence is unreasonable because the District Court failed to consider his request for a downward variance based on the asserted disparity between his sentence for attempting to induce statutory rape and the lower maximum sentences for actually committing statutory rape under state and federal law.  We will vacate Begin‟s sentence and remand for the District Court to consider his request.

And here is how the partial dissent by Judge Roth gets started:

I concur with the majority’s conclusion regarding the issue of federal/state sentencing disparities. I disagree, however, with the majority’s decision to vacate the sentence and remand to the District Court for consideration of the alleged federal/federal sentencing disparity. I would hold, as a matter of law, that the disparity between the two federal statutes raised here is irrelevant to the consideration of sentence disparities under 18 U.S.C. § 3553(a)(6). I would, therefore, affirm the sentence imposed.

October 9, 2012 in Booker in the Circuits, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

What do folks think of a local "violence tax" on guns and ammunition?

The question in the title of this post is prompted by this new local article out of Chicago, headlined "Cook County Considers 'Violence Tax'." Here are the interesting details:

A potential Cook County tax takes aim at guns, and gun rights activists aren't happy about it.

County president Toni Preckwinkle is considering a "violence tax" on guns and ammunition to help plug a $115 million budget gap in 2013. Under the tax, guns and ammunition would cost more, according to the Chicago Sun-Times, but Preckwinkle isn't saying how much more just yet.

The idea follows a violent Chicago summer, when some weekends left multiple people killed and dozens others injured in shootings. The city's murder rate is up 25 percent, and the Cook County Jail is near capacity with 9,000-plus inmates....

The idea raises questions about how much this would raise for the county and whether the tax would really cut down on crime.

"If we can tax cigarettes, it seems we can tax bullets and guns," said Chicago resident Cathryn Taylor. "But at the same time, I get the point that if people are buying the stuff illegally, then the tax doesn't matter because they aren't going through legal channels anyway."

The idea has come up before. Ald. Roberto Maldonado (26th) pushed for a 10-cent per-bullet tax back in 2007 when he was Cook County board commissioner. That didn't happen....

Preckwinkle's budget proposal is set to be unveiled Oct. 18, and an ammunition tax isn't the only potential money maker on the table. The board president reportedly wants to lease the top two floors of the County Building in Chicago's Loop for what she estimates could net at least $1 million a year for 10 years.

In response to this story, I cannot help but think about Chris Rock's great riff on gun control and "bullet control" in which he explains just why the world would be so much better if each bullet cost $5,000.

October 9, 2012 in Gun policy and sentencing, Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (11) | TrackBack

"Sandusky sentenced to 30 to 60 years"

The title of this post is the headline from this AP report of today's high-profile child sex abuse state sentencing in Pennsylvania.  Here is how it begins:

Former Pennsylvania State University football coach Jerry Sandusky was sentenced to 30 years to 60 years in prison for charges of child sex abuse that involved 10 boys and spanned a decade and a half.

Legal observers said the sentence ensures that Mr. Sandusky, 68 years old, will almost certainly spend the rest of his life in a state prison. He had faced a minimum of 10 years and a maximum of more than 200 years. Experts said the chances of Mr. Sandusky successfully appealing his conviction is remote.

Mr. Sandusky, wearing a red prison jumpsuit with "Centre County" printed on the back, stood motionless in a crowded but hushed courtroom as Judge John Cleland read a list of individual sentences for 45 counts related to child sex abuse that Mr. Sandusky had been convicted of in June.

"The tragedy of this crime is that it's a story of betrayal," Judge Cleland said before handing down the sentence. "Those who have never encountered a pedophile can hardly begin to understand the anguish of those who have been so expertly deceived….The crime is not only what you did to their bodies but what you did to their psyches and souls."

Judge Cleland said to Mr. Sandusky, "When I say to you that you're sentenced to spend not less than 30 years to 60 years in prison, that has the unmistakable impact of saying clearly 'for the rest of your life.' "

Judge Cleland also addressed Mr. Sandusky's victims, several of whom were in the courtroom and had read statements about being sexually abused. "The fact that you were assaulted is no cause for embarrassment or shame," Judge Cleland said. "It is for your courage and not for your assault that you will be remembered. And it is that on which you must focus if you are going to become whole and healed."

Mr. Sandusky, who chose not to testify during his trial, read a lengthy statement in the courtroom. A weary-looking Mr. Sandusky maintained that he is innocent. "Others can take my life. They can make me out as a monster," Mr. Sandusky said. "They can't take away my heart, and in my heart I know that I didn't commit these alleged disgusting acts."

Mr. Sandusky spoke about the victims who he said had wrongfully accused him, as well as about football, prison life, his dog and missing his family. His wife Dottie looked on, holding the side of her face with one hand. At the end, his voice cracked with emotion as he spoke of being separated from his family.

Three young men read statements in court and said they were still suffering from the abuse they suffered at Mr. Sandusky's hands. "I will never erase the filthy images of his naked body against mine, but he must pay for his crimes which he has now been convicted of," said a young man identified as Victim 5, who testified that he was molested in a Penn State shower by Mr. Sandusky. "He took away my childhood the day he assaulted me. He should be sentenced accordingly."

October 9, 2012 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Is it really "shocking" that President Obama has not spoken out concerning state criminal justice reform proposals?

The question in the title of this post is prompted by a comment in this new Fox News piece, which is headlined "High times: 3 states to vote on recreational marijuana use."  Here are excerpts:

Advocates of legalizing marijuana for recreational use may be closing in on their first statewide victory. Voter initiatives that would legalize up to an ounce of pot will be on the ballot in three states in November: Oregon, Colorado and Washington State. Polling shows the measures leading in Washington and Colorado with at least 50 percent support.

“If Washington or Colorado wins in November, and both of them have a good chance to do so, it is going to be transformative in the way we think about marijuana policy in this country and even outside,” says longtime legalization advocate Ethan Nadelmann of the Drug Policy Alliance....

President George Bush’s drug czar, John Walters, can’t understand why President Obama is not using his bully pulpit.  “I think it’s shocking that Attorney General Holder, the Director Kerlikowski, but most of all the president of the United States, can’t talk about this,” says Walters.  “It’s about health, it’s about safety, it’s about the future of the country.”

Meantime, Initiative 502 in Washington State keeps racking up endorsements. Most elected leaders in Seattle support the measure, including the current sheriff and his opponent in the upcoming election. Former U.S. Attorney John McKay is one of its sponsors. But the most stunning endorsement came from the Children’s Alliance, an umbrella organization for 100 child welfare groups.

Jon Gould, Deputy Director of the Children’s Alliance, says marijuana laws are being enforced unevenly and that hurts minorities and the poor. “If those kids’ parents are shut out of housing, shut out of employment, shut out of education opportunities, we’re not helping those kids,” says Gould.

Legalization opponents argue very few people are locked up for marijuana possession. A survey by the Bureau of Justice Statistics showed that .07% of all state inmates were busted for marijuana possession only. “We need to understand that drugs and gangs go hand in hand,” says Paul Chabot, who advised Presidents Clinton and Bush on drug policy. “They destroy communities. What we have to do is work keeping people off this stuff, not liberalizing policies.”

Legal or not, young people would still be barred from smoking pot.  And critics argue more kids would try it, something the administration has always been against.  But so far this election year, instead of using the power of the office, that message has gone up in smoke.

Regular readers know I share John Walters hope that President Obama, as well as wanna-be President Romney, will address marijuana policy on the campaign trail and in the debates. But I hardly think it is "shocking" that the President has not opined on the proposals to legalize marijuana at the state level in three states, just as I do not think it is "shocking" that he has not addressed California's big criminal justice initiatives or other state-level reforms that may or may not impact federal criminal justice enforcement priorities.

Regular readers likely know that I am following the politics surrounding drug policy reform closely because I have a hard time connecting conservative talking points about freedom, states' rights and nanny-state over-regulation with the categorical opposition to state-by-state reconsideration of absolute pot prohibition.  Given that Republican VP candidate Paul Ryan has indicated that he believes states should be free to develop their own medical marijuana laws while other Republicans have endorsed pot legalization in Colorado and Washington, I am surprised and somewhat disappointed that Fox News thinks it is "fair and balanced" to assail President Obama on this front, especially given how hard his US Attorneys are going after medical marijuana facilities throughout the west.

Some recent and older related posts:

October 9, 2012 in Campaign 2012 and sentencing issues , Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (9) | TrackBack

Guest Post on Jerry Sandusky's expected exercise of his allocution right

Mark Allenbaugh sent me comments about Jerry Sandusky's upcoming sentencing, and I urged him to turn his thoughts into a guest post.  Here it is:

Today, Jerry Sandusky most likely will be sentenced to a term that will guarantee he serves the rest of his life in prison.  Given a life expectancy of around 10 to 15 years, it inevitably will be significantly shortened by years of solitary confinement.  The real question is not what he’ll get, but what, if anything, he says.

Reports indicate he will use his right of allocution to claim his innocence.  In fact, late last night he released an audio file to the press wherein he claimed that “In my heart, I know I did not do these alleged disgusting acts. My wife has been my only sex partner.  That was after marriage.”

Unlike cases built primarily or exclusively on forensic evidence where botched investigations all too often lead to erroneous convictions, Sandusky’s claim of innocence will serve no purpose other than to largely defeat any mitigating evidence that may be introduced, and his statement released yesterday will only serve as impeachment evidence.  Why, for example, did he state that “Maybe (the case) will help others; some vulnerable children who could be abused, might not be because of all the publicity”? Sacrificial lamb or a back-handed admission of guilt?  Neither is helpful to him and persisting in his innocence will likely raise the ire of the Court.

Which raises the point as to when should an offender exercise his right of allocution. Judges have indicated, especially in sex offense cases, that they desire to hear offenders not just admit guilt and take “full responsibility,” but show remorse.  But where, as here, victims also are expected to testify, a client’s moment of catharsis can result in additional years of confinement.  And Sandusky’s sentencing effectively is his court of last resort inasmuch as any appeal, even if successful, may not come earlier enough to win him his freedom.

So, why then did Sandusky essentially allocute in public when his every word in court will be duly recorded?  Perhaps he is thinking over the wisdom of claiming innocence in open court in front of his victims and the judge, or he’s testing the waters of public reaction. More likely this could be the result of years of rationalization that has formed a permanent cognitive dissonance.  It is not uncommon, after all, for sex offenders to suffer from sometimes profound mental illness, which often can speak to mitigation or alternatives to exclusive incarceration.

But whatever the reason why, as the old saying goes, if you want to get out of a hole, stop digging.  Sandusky would be wise let his audio tape continue to do his talking, and waive his right of allocution.

Some prior posts on Sandusky case:

October 9, 2012 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

October 8, 2012

Lots of notable SCOTUS action for criminal justice fans despite short week

Returning to action after the holiday weekend, the Supreme Court has criminal justice issues within three of its four cases scheduled for oral argument over the next two days (and the fourth is the high-profile affirmative-action case out of Texas).  With links and descriptions from the always terrific SCOTUSblog, here is the criminal justice argument line-up:

Tuesday, October 9:

Wednesday, October 10

October 8, 2012 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack