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October 20, 2012

Deputy AG Cole says federal prohibition to be enforced regardless of pot legalization initiatives

This new Reuters article, headlined "U.S. stance on marijuana unchanged by legalization votes: official," reports on new (and not very surprising) comments from a Justice Department official about state marijuana initiatives. Here are excerpts:

A top Justice Department official has told "60 Minutes" the federal government is ready to combat any "dangers" of state-sanctioned recreational pot, amid criticism of the Obama administration for its relative silence on legalization drives in three states.

Voters in Colorado, Washington state and Oregon are set to vote on November 6 on whether to legalize and tax marijuana sales, raising the possibility of a showdown with the federal government, which views pot as an illegal narcotic.

Deputy Attorney General James Cole, in comments to "60 Minutes" posted on Saturday to the website of CBS affiliate KCNC-TV in Denver, said his office's stance on pot would be "the same as it's always been" if voters approved legalization.

"We're going to take a look at whether or not there are dangers to the community from the sale of marijuana and we're going to go after those dangers," Cole told "60 Minutes" in an outtake from a report on Colorado's medical marijuana industry due to air on Sunday, according to the CBS affiliate.

Cole's statement is an indication the federal government, which has raided medical pot dispensaries in several of the 17 states that allow cannabis as medicine, could also take aim at state-sanctioned recreational marijuana.

It also represents a break with the Obama administration's relative silence about the pot referendums, which has led to uncertainty about whether federal officials would stop states from taxing and regulating sales of pot in special stores to those 21 and older, as proposed under each of the three state initiatives before voters....

In 2010, Holder issued a toughly worded letter that said his office "strongly" opposed the California proposal and would "vigorously enforce" drug laws against participants in the recreational pot trade, even if state law permitted it. Holder's statement is credited with helping to convince some California voters to reject the proposal.

"Compared to what they did two years ago in California, to have their federal posture be essentially a wait-and-see approach is encouraging," said Ethan Nadelmann, head of the Drug Policy Alliance, which through affiliates has funded marijuana legalization campaigns.

Polls show the American public is increasingly leaning toward legalizing pot, but no state has taken that step. Nadelmann said pot legalization is popular with young people and independents, two groups of voters crucial to President Barack Obama's re-election campaign, and that his administration is "being smart in basically not weighing in at this time."

Some recent and older related posts:

UPDATE: The "60 minutes" segment from which this story emerges will be broadcast on Sunday, October 21, and here is a link to a preview, which provides this introductory paragraph:

Colorado's thriving medical marijuana business isn't just named for the color of today's green, potent pot. It's the color of the money being made in the medical marijuana industry.  Steve Kroft goes to the Rocky Mountain state to report on a business that's legal there and 16 other states, but in the eyes of the federal government is still as illegal as dealers selling heroin or LSD.  "Rocky Mountain High" will be broadcast on 60 Minutes Sunday, Oct. 21 at 7:30 p.m. ET and 7:00 p.m. PT.

October 20, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (8) | TrackBack

"Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases"

The title of this post is the title of this new article appearing on SSRN and authored by Tigran Eldred. Here is the abstract:

The reasons criminal lawyers so often fail to provide adequate legal representation to indigent defendants are well-known: severe underfunding, excessive workloads and other disincentives for competent representation work together to encourage quick disposition of cases, with little regard for the quality of legal services that are provided.  Yet, largely overlooked in this equation is whether defense lawyers who provide subpar representation are aware of their own shortcomings.

To answer this question, this article focuses on the psychology of ethical decision-making. Relying on research that reveals the subtle ways that self-interest can cause people to overlook unethical behavior, it argues that defense lawyers will tend to be “ethically blind” to their own poor performance.  Concluding that lawyers who suffer from ethical blindness cannot be expected to improve the quality of legal representation on their own, it recommends ways to reduce psychological barriers to competent representation that have proven successful in other contexts.

October 20, 2012 in Who Sentences? | Permalink | Comments (5) | TrackBack

Effective review of evolution in lethal injection execution processes in the states

Web101912LethalDrugsFINALThe Austin American-Statesman has this lengthy article on modern state lethal injection protocols, which is headlined "Execution changes occur without public scrutiny, input." Here are excerpts:

On July 9, when Texas switched from three drugs to just one to execute its most heinous criminals, Rick Thaler, the state’s No. 3 corrections official, signed off on the change without fanfare after consulting with prison officials in other states.

No public hearings. No legislative action. No public vote by the prison system’s nine-member governing board, which routinely votes on tweaks to prison policies, such as hazardous-duty pay bumps for individual employees and donations of vegetable and Bibles.

Under a state law enacted years ago, Thaler — a former guard and warden with no medical training — alone decided the change on how Texas’ ultimate punishment is administered. His signature on the revised 10-page execution policy was all it took to upend almost three decades of precedent using three drugs in executions.

Lethal injection faces increasing scrutiny nationwide with states scrambling to keep their death chambers operating as their supplies of drugs run short, and because of that, critics of the death penalty say, the execution process is much more haphazard than it once was....

For their part, Texas prison officials say they are simply doing what they must to carry out the law, and they echo the response of colleagues across the country: Courts have approved all the changes so far. The changes occur at a time when the death penalty appears to be under increasing siege across the country. Five states have suspended executions because of pending court challenges, five others have in recent years abolished executions altogether and, by some polls, public support for the death penalty appears to be at its lowest point in decades....

For the [last] three decades, the three-drug cocktail was the execution norm in most states: Sodium thiopental, a fast-acting barbiturate that put the convict to sleep; pancuronium bromide, a paralytic that stopped breathing, and potassium chloride, a drug that stopped the heart.

Court challenges to the execution drugs dead-ended, and prison officials in Texas and other states kept their death chambers buzzing. Of the 848 prisoners executed nationally by lethal injection in 30 years, 487 of them died in Texas — a state that executed just 361 convicts in its electric chair in 40 years.

By this summer, as its existing lethal drug supply expired, Texas found pancuronium bromide unavailable. It was then, on July 9, just days before a scheduled execution, that Thaler signed off on using a single drug. The change was approved without public notice, with little explanation and without even the agency’s nine-member governing board voting on it. Under agency policy, Thaler, director of the prison agency’s Correctional Institutions Division, is delegated sole responsibility for the execution procedure.

As Texas Department of Criminal Justice spokesman Jason Clark explained it, the reason for the July change was that “the agency’s stock of the second drug expired and the agency was unable to obtain a new shipment.”...

Other states also have made the switch to different drugs or one drug without much, if any, public debate. In fact, several states, including Oklahoma, have enacted laws keeping most details about their execution process secret — the suppliers, the amounts on hand and the expiration dates....

Megan McCracken, an attorney and death penalty expert with the University of California’s Berkley School of Law, said the fast-changing methods and drugs used in executions highlight a flaw in the system: There is no solid medical justification for the selection and use of specific drugs. “(Texas) is able to change protocols with little or no oversight, no public input, little or no public knowledge,” she said. “When the Legislature delegates rule-making authority to an agency, that should not take it completely out of the light of day.”

She and Denno said the fast switches of drugs could portend legal issues ahead — because, as McCracken says, it seems to be occurring “with little or no medical examination or input. … Are (states) approaching this from the standpoint of what’s most humane, or are they just looking at what’s most expedient?”

“This has always been a sloppy process from the start, and recently it seems to have gotten worse now than it ever was,” Denno said. “Any attorney now worth their salt will be challenging the lethal injection procedure.”

October 20, 2012 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (9) | TrackBack

October 19, 2012

"Can the CEO Learn from the Condemned? The Application of Capital Mitigation Strategies to White Collar Cases"

The title of this post is the title of this interesting-looking new piece up on SSRN authored by Todd Haugh. I would be eager to read this article based solely on the first sentencing of the abstract, which is "Ted Kaczynski and Bernie Madoff share much in common." But especially with the sentencing of Rajat Gupta scheduled for next week (basics here), I now think this piece should be a weekend must-read for lots of folks. Here is the full abstract:

Ted Kaczynski and Bernie Madoff share much in common. Both are well-educated, extremely intelligent, charismatic figures. Both rose to the height of their chosen professions — mathematics and finance. And both will die in federal prison, Kaczynski for committing a twenty-year mail-bombing spree that killed three people and seriously injured dozens more, and Madoff for committing the largest Ponzi scheme in history, bilking thousands of people out of almost $65 billion. But that last similarity — Kaczynski’s and Madoff’s plight at sentencing — may not have had to be. While Kaczynski’s attorneys tirelessly investigated and argued every aspect of their client’s personal history, mental state, motivations, and sentencing options, Madoff’s attorneys offered almost nothing to mitigate his conduct, simply accepting his fate at sentencing. In the end, Kaczynski’s attorneys were able to convince the government, the court, and their client that a life sentence was appropriate despite that he committed one of the most heinous and well-publicized death penalty-eligible crimes in recent history. Madoff, on the other hand, with almost unlimited resources at his disposal, received effectively the same sentence — 150 years in prison — for a nonviolent economic offense. Why were these two ultimately given the same sentence? And what can Madoff, the financier with unimaginable wealth, learn from Kaczynski, the reclusive and remorseless killer, when it comes to federal sentencing?

The answer lies in how attorneys use sentencing mitigation strategies. This Article contends that federal white collar defendants have failed to effectively use mitigation strategies to lessen their sentences, resulting in unnecessarily long prison terms for nonviolent offenders committing financial crimes. The white collar defense bar has inexplicably ignored the mitigation techniques perfected by capital defense attorneys, and in the process has failed to effectively represent its clients. After discussing the development of the mitigation function in capital cases and paralleling it with the evolution of white collar sentencing jurisprudence, particularly post-Booker, this article will present seven key mitigation strategies currently used by capital defense teams and discuss how these strategies might be employed in federal white collar cases. The goal throughout this Article will be to highlight new strategies and techniques available in defending white collar clients and to enhance sentencing advocacy in federal criminal cases.

October 19, 2012 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

For free health care from well-paid medical personnel, commit a serious crime in California

The snarky title of this post is prompted by this new AP story, which is headlined "High pay a costly legacy of Calif. prison receiver."  Here is how it starts:

A doctor at California Medical Facility was paid more than $410,000 last year, while a registered nurse at High Desert State Prison made nearly $236,000 -- more than twice the statewide average in both cases.  A pharmacist at Corcoran State Prison was paid more than $196,000, nearly double what is typical across the state. 

Compensation for medical providers has soared in the prison system since a federal judge seized control of inmate health care in 2006 and appointed an overseer with the power to hire and set pay levels.  As the official begins to wind down his oversight, the medical hiring and salary increases have helped lead to an improvement in inmate care, but it has increased the bill for taxpayers too. 

It has also led to criticism that the official -- called a receiver -- provided a "Cadillac" level of care for convicted felons.  A state review found that only Texas pays its state prison doctors more that California.

"The problem that we had is that the receiver was not accountable to anybody," said former state Sen. George Runner, a Republican who has frequently criticized the program. "So the receiver could just do or choose to spend whatever amount of money he thought was necessary to solve his problem, and unfortunately now the state is stuck with that," he said.

The receiver for medical care, J. Clark Kelso, said the state has been free to collectively bargain health care providers' salaries since a court order increasing their wages expired three years ago.

The receiver's goal was to correct a prison medical system that was ruled unconstitutional for its substandard care and, at one point, contributed to an inmate death each week through negligence or malfeasance.  To do that, the receivership increased salaries, created new positions at high pay and hired hundreds of employees to fill longtime vacancies.

Total spending on medical, dental and mental health care for inmates, numbering 124,700, has more than doubled over the last decade, from $1.1 billion in fiscal year 2003-04 to a projected $2.3 billion this year.  The number of medical, mental health and dental workers in the prisons more than doubled over six years, from 5,100 in 2005, the year before the receivership was created, to 12,200 last year.  More than 1,400 were administrators who don't directly treat inmates, according to a state Assembly oversight committee.

October 19, 2012 in Prisons and prisoners, Who Sentences? | Permalink | Comments (8) | TrackBack

High-profile state jury acquittal of New Jersey's "Weedman" on distribution charges

WeedmanThis local article, headlined "'NJWeedman' acquitted; Still faces prison time for possession," reports on a notable verdict in a high-profile state marijuana distribution case.  Here are the details:

Although a jury acquitted Ed “NJWeedman” Forchion of drug distribution on Thursday, the medical marijuana activist could still spend time behind bars for his love of pot.  Forchion, a Pemberton Township native who has long been a champion for the legalization of marijuana, was found guilty for possessing marijuana in a trial in May but a verdict could not be reached on the more serious distribution charge.

Forchion, who had been living in California, was arrested in Mount Holly in 2010 with a pound of pot in his trunk. After the retrial this week, the jury in Superior Court in Burlington County deliberated for only a short time on Thursday before returning a verdict of not guilty.  “I’m vindicated,” an upbeat Forchion said in an interview after the verdict announcement on Thursday.  “The people just don’t believe in the marijuana laws anymore.”

Forchion, 47, grew up in Browns Mills but later opened a medical marijuana dispensary in California.  He was arrested in April 2010 when he returned to New Jersey to visit his children and was stopped in Mount Holly with a pound of pot in his trunk. Since then, Forchion has heavily promoted his case in an effort to further argue against New Jersey’s marijuana laws.

Forchion was allowed to talk to jurors in both cases about his status as a licensed medical marijuana patient in California.  But he was barred from using his oft promoted “jury nullification” argument that would have asked jurors to disregard the state’s laws on marijuana use in determining a verdict that was instead based upon their own view of the substance.  “I think the jurors agree with me,” Forchion said Thursday.

But while avoiding the much more hefty weight of the drug distribution charge, Forchion still faces up to 18 months in prison when sentenced Jan. 17 for drug possession.  Forchion said he hopes the judge will consider the fact he is enrolled in a cancer study in California for painful tumors in his legs.

Forchion, who says he relies on marijuana to control pain from his tumors, has maintained that he never had any intent to peddle his “medicine” to others....  Forchion, a laid back, dread-locked Rastafarian who holds nothing back when it comes to his penchant for the wacky weed, has gained a large following of supporters.  He even admitted to jurors on Thursday he had eaten pot-laced cookies and brownies throughout the proceedings in court.

Recent related article:

October 19, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

October 18, 2012

Federal judge finds unconstitutional Nebraska's statute criminalizing all sex offender use of social networking sites

As reported via this post by David Post at The Volokh Conspiracy, yesterday US District Judge Richard Kopf declared unconstitutional a portion of Nebraska's sex offender registry law making it a crime for registered sex offenders to make any use of any social networking web site.  The full, lengthy opinion is available at this link, and here is how it begins:

Earlier I paraphrased Justice Oliver Wendell Holmes and observed that if the people of Nebraska wanted to go to hell, it was my job to help them get there. By that, I meant that it is not my prerogative to second-guess Nebraska’s policy judgments so long as those judgments are within constitutional parameters.  Accordingly, I upheld many portions of Nebraska’s new sex offender registration laws even though it was my firm personal view that those laws were both wrong-headed and counterproductive. 

However, I had serious constitutional concerns about three sections of Nebraska’s new law.  After careful study, I granted summary judgment regarding one claim and decided that a trial was necessary to resolve my other concerns.  The trial has now been concluded, and I have decided that the remaining portions of Nebraska’s sex offender registry laws are unconstitutional.

In short, I can only help Nebraskans get to the figurative hell that Holmes spoke of if they follow a constitutional path.  For three sections of Nebraska’s new sex offender registry law, Nebraska has violently swerved from that path.  I next explain why that is so.

UPDATE: This new local article about this ruling provides some more information concerning the rulign and some reactions.  Here are excerpts:

On Thursday, Omaha attorney Stu Dornan, whose firm represented the men and women challenging the laws as John and Jane Doe, hailed this week's ruling, saying the laws had left people on the Nebraska Sex Offender Registry unsure whether they could text or email family members or even turn on a computer.

He said Kopf's ruling upheld the Constitution as a document that protects even sex offenders, who are viewed by many Nebraskans, as Kopf said in his order, as the lepers of the 21st century. "The Constitution, if it does not protect this group of people, it does not protect any of us," Dornan said....

As scathing as Kopf's 73-page order was at times, the judge did also set out a pathway for Nebraska lawmakers to cure it. "Plainly put: Concentrate on demonstrated risk rather than speculating and burdening more speech than is necessary -- use a scalpel rather than a blunderbuss," the judge said. As it was, Kopf said Nebraska lawmakers had gone too far, putting a stake through the heart of the First Amendment and gutting protections against suspicion-less searches....

At trial, the attorney general's office argued that the laws did not keep offenders from using the Internet entirely. But Kopf said the Nebraska Legislature went far beyond its purported purpose when it criminalized the provisions. "These statutes retroactively render sex offenders, who were sentenced prior to the effective date of these statutes, second-class citizens," he said. "They are silenced. They are rendered insecure in their homes."

He said lawmakers could draft a statute that required convicted sex offenders to provide Internet addresses that the state could track, rather than requiring sex offenders to constantly update the state about when and where they post, for instance. The state also could narrow social networking and chatroom restrictions to offenders who committed their crimes using the Internet, he said....

Shannon Kingery, a spokeswoman for Attorney General Jon Bruning, said his office respectfully disagreed with the court's decision. "We are reviewing the ruling and assessing our options," she said.

October 18, 2012 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

SCOTUS stays a Texas execution, refuses stay in Florida case

As detailed in orders here and here, this afternoon the Supreme Court granted a stay to stop the execution of Texas death row inmate Anthony Haynes who was due to be executed this evening (background in this local press report), and denied a stay and the cert petition for Florida death row inmate John Ferguson (background in this local press report).

October 18, 2012 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Intriguing Seventh Circuit discussion of onerous terms of supervised release

The Seventh Circuit today has issued in US v. Quinn, No. 12-2260 (7th Cir. Oct. 18, 2012) (available here), a very short and very interesting opinion discussing supervised release terms. Here is an excerpt:

Quinn asked the judge to choose a ten-year term of supervised release. He submitted a forensic psychologist’s evaluation, which concluded that he has a lowerthan- normal risk of recidivism.  He also submitted the testimony that two psychologists (Michael Seto and Richard Wollert) recently had presented to the Sentencing Commission regarding the recidivism rate for persons convicted of child-pornography offenses....  [But] the district judge did not discuss either the length of supervision or the terms that Quinn would be required to follow while under supervision.

The prosecutor has confessed error, and we agree with the prosecutor’s conclusion that a district judge must explain important decisions such as the one at issue here. On remand the judge should consider not only how Quinn’s arguments about recidivism affect the appropriate length of supervised release, but also the interaction between the length and the terms of supervised release.  The more onerous the terms, the shorter the period should be.  One term of Quinn’s supervised release prevents contact with most minors without advance approval.  Quinn has a young child, whom he has never been accused of abusing.  Putting the parent-child relationship under governmental supervision for long periods (under this judgment, until the son turns 18) requires strong justification.

Our research has turned up only a few decisions that discuss the relation between the terms and length of supervised release.  The third circuit has observed that the more onerous the term, the greater the justification required — and that a term can become onerous because of its duration as well as its content.... Rules that allow public officials to regulate family life likewise call for special justification, and lifetime regulatory power is hard to support when the defendant has not been convicted of crimes against his family or other relatives.  Other terms of Quinn’s supervised release also may require strong justification when extended for a lifetime.

Although district judges can reduce the length of supervised release, or modify its terms, at any time, 18 U.S.C. §3583(e) — an opportunity that may lead a judge to think that uncertainties at the time of sentencing should be resolved in favor of a long (but reducible) period — still this is a subject that requires an explicit decision by the judge after considering the defendant’s arguments.  The judge also should consider the possibility of setting sunset dates for some of the more onerous terms, so that Quinn can regain more control of his own activities without needing a public official’s advance approval, while enough supervision remains to allow intervention should Quinn relapse.

October 18, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

"Colorado marijuana-legalization measure raises question of pot tourism"

The title of this post is the headline of this notable new piece in the Denver Post.  Here are excerpts:

Colorado's legalization of limited possession of marijuana — if voters approve it this November — would bring the attention of the nation to the state, both sides of the issue agreed Wednesday.  Where they disagreed, though, is whether that attention would be a good thing.

In a debate..., Amendment 64 opponent Happy Haynes said the measure would attract illegal-drug dealers, hurt Colorado's brand among businesses and bring in unwanted marijuana tourists.  Proponent Betty Aldworth saw it differently, saying there is no evidence the measure would harm the state's business climate and that any marijuana-motivated visitors would be welcome.  "Those are tourism dollars, are they not?" Aldworth asked.

Haynes said the state should be more discriminating.  "The idea that any dollars that we get are OK, I'm not in favor of swelling our state coffers ... with money because people are getting high," she said.

Haynes said those types of regulations would draw not only tourists, but black-market dealers looking to operate under the cover of the state's marijuana laws. "Colorado will just become a magnet for pot dealers," she said. Haynes said businesses would be reluctant to move to the state if it is known for marijuana.

Aldworth, though, said regulation would make it easier to identify those acting illegally. And she disputed suggestions that Colorado's image would suffer if voters pass Amendment 64.  "The notion that Colorado's brand would be negatively impacted by Amendment 64 is not supported by any careful analysis," she said. "It's 'Reefer Madness' scare tactics."

October 18, 2012 in Drug Offense Sentencing, Pot Prohibition Issues | Permalink | Comments (9) | TrackBack

Pennsylvania legislature passes "Miller fix" bill with additional juvenile provisions

As reported in this local article from Pennsylvania, a "bill to adjust sentences for juveniles who commit murder and keep regular juvenile offenders out of detention centers goes to the governor for signing after winning final approval Wednesday in the Senate." Here is more:

The measure, approved 37-12, is a response to the U.S. Supreme Court decision in June striking down state laws that require juveniles convicted of homicide to life in prison without a chance of parole.

It establishes a sentencing tier for murder tied to the age of a juvenile offender.  For example, a juvenile under age 15 would serve at least 25 years for first-degree murder. Under current state law, individuals convicted of first degree murder face a minimum life term regardless of age.

The bill, sponsored by Sen. Stewart Greenleaf, R-12, Willow Grove, requires courts to consider the least restrictive punishment for regular juvenile offenders. This is a response to abuses in the sentencing of juveniles to a for-profit detention center uncovered by the Luzerne County Courthouse scandal....

The bill includes a provision sponsored by Rep. Gerald Mullery, D-119, Newport Twp., to expand the scope of the state Office of the Victim Advocate to include victims of juvenile crime. The office is currently prohibited from advocating for victims of juvenile crime.

This AP article provides a bit more detail on the Miller fix part of this legislation:

The bill would create a new set of sentencing options, with penalties that depend on the age of the defendant and whether they're convicted of first- or second-degree murder. Defendants 14 or younger would serve at least 20 years for second-degree convictions and 25 years for first-degree convictions.  Offenders who are 15- to 17-years old would face at least 25 or 35 years.

This new state legislation, which I assume will get signed into law by the Governor of Pennsylvania, provides a great example of how even narrow constitutional rulings by the judiciary can often prod dynamic and broader criminal justice reforms by other government branches.

October 18, 2012 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

October 17, 2012

Gupta sentencing memos: feds seeking 97 to 121 months in prison, defense requesting probation and "rigorous community service"

This new Wall Street Journal article, headlined "Prosecutors Seek as Much as Decade in Prison for Gupta," reports on the sentencing advocacy appearing in the sentencing memoranda filed today for next week's scheduled sentencing of Rajat Gupta.  Here are the particulars:

Rajat Gupta, once part of the upper echelons of American business and a former Goldman Sachs Group Inc. director, should spend as much as the next decade of his life behind bars after he was convicted of insider trading earlier this year, prosecutors said.

However, lawyers for Mr. Gupta, the most prominent figure caught up in the government's broad crackdown on insider trading, said the 63-year-old should instead receive no time in jail and "rigorous community service." More than 70 people have been convicted or pleaded guilty in the government's probe.

A former director at Goldman and Procter & Gamble Co., Mr. Gupta was convicted of three counts of securities fraud and one count of conspiracy for allegedly passing along corporate secrets he learned in the boardroom about Goldman to hedge-fund manager Raj Rajaratnam, whose fund made millions of dollars trading on his tips. He was acquitted of two fraud charges....

"Gupta's crimes are shocking," said Assistant U.S. Attorney Richard Tarlowe in a court filing Wednesday. "Gupta had achieved extraordinary personal and professional success and was at the pinnacle of a profession built on protecting client confidences."... The government asked for a sentence between eight years and 1 month to 10 years and one month in prison....

Gary Naftalis, a lawyer for Mr. Gupta, argued in a court filing that he should face a less onerous sentence, saying the alleged conduct was an aberration and his client has been a upstanding member of the community, contributing to causes ranging from education to treating infectious diseases in the developing world....

"The convictions in this case represent an utter aberration in the life of the man before the Court — a man whose 'personal history and characteristics' are dramatically different from those routinely presented to sentencing courts in white collar cases," Mr. Naftalis said in a court filing....

Mr. Naftalis suggested the Mr. Gupta receive a sentence of probation and be ordered to engage in a full-time program of community service, ranging from working with a U.S. agency that provides emergency shelters and other services for the homeless and at-risk youth to working with Rwanda's government and an international public-health organization to help improve that country's delivery of health care.

Federal sentencing law requires judges to consider and balance a variety of factors, including guidelines for the length of prison terms, the size of the crime, the character and history of the defendant and the need to deter him or her and the public in general from crime in the future.

In Mr. Gupta's case, the judge is likely to consider the defense's arguments that Mr. Gupta has been a model member of society, participating in philanthropic endeavors around the world for years and a dedicated family-man despite his demanding career.

If/when I can find these filings available on-line, I will post them (and maybe even add a few comments). Even before giving them a read, I will (boldly?) predict that Judge Rakoff will impose a sentence somewhere between these recommendations. I will even set my current betting-line over/under at two years in prison, though that might change based on the forces of the sentencing memos.

Related posts on upcoming Gupta sentencing:

 

UPDATE:  A wonderful reader sent me this link where both sentencing memos in US v. Gupta can be found. 

October 17, 2012 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2) | TrackBack

Effective report on appellate consideration in Michigan of many post-Miller issues

This effective local article, headlined "Resentence juvenile lifers? Michigan appeals court considers implications of Supreme Court ruling," provides an effective review of appellate arguments this week dealing with the potential impact of the SCOTUS Miller ruling in that state up north.  Here are excerpts:

The Michigan Court of Appeals is weighing arguments in a single case that may shape the fate of 368 prisoners serving mandatory life sentences for violent crimes they committed when they were minors.

Attorney Patricia Selby Tuesday asked the appeals court to order resentencing for her client, Raymond Carp, who was convicted of first-degree murder in the 2006 stabbing of 43-year-old MaryAnn McNeely in St. Clair County.

Carp, who was 15 when his half-brother repeatedly stabbed the woman with his assistance, exhausted the traditional appeals process but is seeking a chance at resentencing in the wake of a June ruling by the U.S. Supreme Court.

The nation's highest court ruled mandatory life terms without the possibility of parole is an unconstitutionally cruel and unusual punishment for minors, invalidating sentencing schemes in Michigan and other states.... But [the Supreme Court] did not indicate whether the ruling should retroactively apply to convicts such as Carp, who was sentenced years ago.

Michigan has more "juvenile lifers" than most states, according to an MLive Media Group analysis. Defense attorneys are expected to request hundreds of resentencing hearings in coming months, and judges around the state are looking to the Court of Appeals for guidance....

Selby, who was joined by attorneys from the American Civil Liberties Union and the State Appellate Defender's Office, argued that the ruling was substantive, pointing to a previous Supreme Court decision that eliminated mandatory death sentences and led to resentencing in states allowing capitol punishment. "Ruling are deemed substantive if they prohibit a certain category of punishment for a class of offenders on the basis of their status or offense," she said. "In this case... what they banned was mandatory application without parole."

Timothy Morris, senior assistant prosecuting attorney for St. Clair County, argued that the Supreme Court ruling was procedural, requiring new sentencing guidelines but not resentencing hearings for previously convicted offenders. "We aren't killing anyone here," he said, attempting to draw a distinction between the high court rulings on mandatory death sentences and juvenile life sentences. "We aren't terminating anyone's existence."

Morris was joined by attorneys for the state prosecutor's association and attorney general's office, which joined the case last week at the behest of Attorney General Bill Schuette, who has argued that resentencing could unnecessarily burden the families of victims by forcing them to return to court....

Beyond the retroactivity issue, the court also spent significant time discussing the need to revisit state laws and current sentencing schemes in the wake of the Supreme Court ruling. A state House committee held an introductory hearing in July but does not appear likely to act in the immediate future.

"If ever there were an area that begged for immediate legislative action, this does," said Judge Talbot, "for the cases that are in the trial courts and for the cases that are pending on appeal."...

Michigan law automatically treats 17-year-olds as adults and allows prosecutors to do the same for even younger juveniles accused of violent crimes. It also requires mandatory life sentences without parole for certain crimes.

This "perfect storm" of statutes would make it difficult for the court to strike down a single provision without rewriting them all, Talbot said, expressing a reluctance but apparent need to legislate from the bench unless lawmakers step up. Acting on a request from Talbot, attorneys on both sides presented a series of "judicial fixes" that could provide relief to lower courts, which are looking for guidance as they consider sentencing juveniles convicted of violent crimes.

Some prior major posts on Miller and its potential impact:

October 17, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Is the great US crime decline now finally over?: BJS reports crime up in 2011

As reported in this AP article, the "number of violent crimes rose by 18% in the U.S. last year while property crimes went up by 11%, the government reported Wednesday."  Here is more on this notable crime data news:

It was the first year-to-year increase for violent crime since 1993, marking the end of a long string of declines.  Violent crime fell by 65% since 1993, from 16.8 million to 5.8 million last year.

According to the U.S. Bureau of Justice Statistics' annual national crime victimization survey, the size of the percentage increases in both violent crime and property crime for last year was driven in large part by the historically low levels seen in 2010.

The increase in violent crime was the result of an upward swing in assaults, which rose 22%, from four million in 2010 to five million last year.  But the incidence of rape, sexual assault and robbery remained largely unchanged, as did serious violent crime involving weapons or injury.

"While it's cause for concern, I would caution against forecasting future crime trends based on a one-year fluctuation," said Chris Melde, an assistant professor at Michigan State University's school of criminal justice.  "You can have percentage changes that seem quite large, but unless you put them in a longer-term perspective you can sometimes misinterpret the overall seriousness of the problem," Mr. Melde added.

The increases in violent crime experienced by whites, Hispanics, younger people and men accounted for the majority of the increase in violent crime.

In the latest survey, property crime was up for the first time in a decade, from 15.4 million in 2010 to 17 million last year.  Household burglaries rose 14%, from 3.2 million to 3.6 million.  The number of thefts jumped by 10%, from 11.6 million to 12.8 million.

The victimization figures are based on surveys by the Census Bureau of a large sample of people in order to gather data from those who are victims of crime.  They are considered the government's most comprehensive crime statistics because they count both crimes that never are reported to the police as well as those reported.

Last May, the Federal Bureau of Investigation's preliminary crime report for 2011, which counts only crimes reported to police, concluded that crime dropped again last year, down 4% for violent crime and 3.7% for property crime.  The declines slowed in the second half of last year, a sign to academic experts that the many years of lowering crime levels might be nearing an end.  Historically, less than half of all crimes, including violent crimes, are reported to police.

The full BJS report, excitingly titled "Criminal Victimization, 2011, is available at this link.  Because there are so many different ways to interpret ad spin this BJS data, I am not even going to try.  But I welcome commenters to go at it.

Some related posts on the great modern crime decline: 

October 17, 2012 in Data on sentencing, National and State Crime Data | Permalink | Comments (9) | TrackBack

Fifth Circuit holds district judge cannot accept plea agreement and then strike appeal waiver provision

The Fifth Circuit has an intriguing new ruling addressing whether a "district court had the authority to strike [defendant]’s appeal waiver" while still accepting his guilty plea agreement. The decision comes in US v. Serrano-Lara, No. 11-41269 (5th Cir. Oct. 16, 2012) (available here), and here is a key passage from the panel's ruling:

Here, the district court’s striking of the appeal waiver was tantamount to rejection of the plea agreement under Rule 11(c)(5).  Hence, the court should have followed the procedure enunciated in that rule.  On the other hand, a court choosing to accept a plea agreement does not then have the option to perform a judicial line-item veto, striking a valid appeal waiver or modifying any other terms.

Our prior holdings, together with the persuasive authority of our sister circuits, counsel in favor of prohibiting a district court from striking a valid appeal waiver.  Therefore, we hold that the district court did not have the authority to strike Serrano-Lara’s appeal waiver, and he has thus waived his right to appeal.

October 17, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

"Rajat Gupta Should Walk Free Wednesday"

The title of this post is the headline of this notable commentary by Walter Pavlo in Forbes with a notable sentencing recommendation for a high-profile federal white-collar sentencing scheduled for next week. Here are excerpts:

On October 24, former McKinsey director, former Goldman Sachs director, former Proctor & Gamble director, former American Airlines director, former Bill & Melinda Gates Foundation director, Rajat Gupta will stand before Judge Rakoff to be sentenced on criminal counts that he was part of an insider trading scheme. The operative word in describing Gupta these days is Mr. “Former” of everything. His life as a professional is over, but that doesn’t mean it should end with a prison sentence.

Gupta no longer sits as an esteemed member on various boards, nor is he sought after by universities to address students ... he is a convicted felon and now we await the crescendo of this criminal prosecution when the prison sentence is announced on Wednesday. Oh and what a spectacle it will be. There will be so much excitement as court artists will capture the moment in chalk, journalists will make a bolt for the courtroom door to fill in the blank (Prison Years) they have in the stories they wrote on Tuesday, and photographers will grab a photo of Gupta entering and leaving the courthouse. If one photographer is lucky he/she will get one of Gupta and his family crying and hugging outside the courtroom. CNBC, FOX and Bloomberg will recruit some former federal inmate to recount his prison experience so that we, the interested public, understand what the Harvard MBA Gupta will expect upon showing up at some prison. The truth is, Gupta shouldn’t be going to prison at all.

Judge Rakoff has an opportunity to give Mr. Gupta a year or two of probation. Ample punishment has already been doled out to Gupta and prison is just a poor excuse as a way to hold him up as an example to the rest of us. Gupta should be treated fairly and fairness would be sending him home to his family and not to some prison camp that would offer no benefit to society.

Such a sentence will put people on notice that there is justice and fairness in our courts. A justice that takes into account a person’s value to society and the detriment of taking that person away. Prison, in the case of Gupta, would not be a remedy, it would simply add to the misconception that prison is the panacea for all criminal cases. My hope is that Judge Rakoff uses this case and this man to make that statement.

Related posts on upcoming Gupta sentencing:

October 17, 2012 in Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

October 16, 2012

Rooting for crime and punishment questions at tonight's town-hall Prez debate

600x399101In this post before the first debate in Denver between the Prez candidates, I correctly predicted that there would not be a single question dealing with 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 town-hall tussle on Long Island is probably going to follow the same script.  But I think there is at least a slim chance that one of the real people being allowed to ask real questions might be allowed to really press the candidates on the really interesting issues for sentencing fans like federal pot prohibition or mass incarceration or even the administration of the federal death penalty or perhaps state felon disenfranchisement. 

For old-times sake, I tracked down the last memorable discussion of crime and punishment in a town-hall debate.  Specifically, almost exactly 12 years ago, on October 17, 2000 to be precise, the death penalty came up during the town-hall debate between then-Governor George W. Bush and then-Vice President Al Gore.  Here are excerpts from this capital Q&A from a dozen years ago via this debate transcript:

Mr. ANDERSON:  In one of the last debates held, the subject of capital punishment came up, and in your response to the question, you seemed to overly enjoy, as a matter of fact, proud that Texas leads the the nation in execution of prisoners.  Sir, did I misread your response, and are you really, really proud of the fact that Texas is number one in executions?

Gov. BUSH:  No, I'm not proud of that. The death penalty is very serious business, Leo. It's an issue that good people obviously disagree on. I take my job seriously, and if you think I was proud of it, I think you misread me, I do.  I was sworn to uphold the laws of my state.  During the course of the campaign in 1994 I was asked, `Do you support the death penalty?' I said I did if administered fairly and justly, because I believe it saves lives, Leo. I do.  I think if it's administered swiftly, justly and fairly, it saves lives....

There have been some tough cases come across my desk.  Some of the hardest moments since I've been the governor of the state of Texas is to deal with those cases.  But my job is to ask two questions, sir: Is the person guilty of the crime, and did the person have full access to the courts of law?  And I can tell you, looking at you right now, in all cases those answers were affirmative.  I'm not proud of any record.  I'm proud of the fact that violent crime is down in the state of Texas.  I'm proud of the fact that we hold people accountable, but I'm not proud of any record, sir. I'm not....

Vice Pres. GORE:  I support the death penalty. I think that it has to be administered not only fairly, with attention to things like DNA evidence, which I think should be used in all capital cases, but also with very careful attention if, for example, somebody confesses to the crime and somebody's waiting on death row, there has to be alertness to say, 'Wait a minute, have we got the wrong guy?'  If the wrong guy is put to death, then that's a double tragedy, not only has an innocent person been executed but the real perpetrator of the crime has not been held accountable for it and in some cases may be still at large.  But I support the death penalty in the most heinous cases.

Mr. LEHRER:  Do both of you believe that the death penalty actually deters crime? Governor?

Gov. BUSH:  I do. That's the only reason to be for it.... I don't think you should support the death penalty to seek revenge. I don't think that's right.  I think the reason to support the death penalty is because it saves other people's lives.

Vice Pres. GORE:  I think it is a deterrence.  I know it's a controversial view but I do believe it's a deterrence.

Back to the present day, 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 the candidates this season.  Perhaps readers will join in my on-going (and seemingly futile?) debate game by adding some queries of interest  via the comments.

A few recent and older related posts: 

October 16, 2012 in Campaign 2012 and sentencing issues , Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (2) | TrackBack

New report examines value of video visitation for kids of incarcerated

I received news via my electronic in-box of an intriguing new report from The Sentencing Project.  Here is how the e-mail describes the report (with a link within):

On any given day, approximately 2.6 million children have a parent in jail or prison because of the harsh criminal justice policies that have made the United States the world's leading jailer.  A growing number of correctional facilities are moving to video visitation because it can be managed by fewer staff than traditional visitation, reduces the chances of contraband being introduced into facilities, and can potentially generate revenue.

In our new report, Video Visits for Children Whose Parents are Incarcerated: In Whose Best Interest?, Dr. Susan D. Phillips addresses the question of whether video visitation may also provide benefits for children who are separated from their parents by incarceration.  Our conclusion is that it depends on the particular policies and practices of a given institution.

Video visitation holds the most potential for benefiting children if: 

  • It is used as an adjunct to, rather than a replacement for, other modes of communication, particularly contact visits; 
  • Children can visit from their homes or nearby sites; 
  • Facility policies allow for frequent visits; and 
  • Fees are not cost prohibitive.

October 16, 2012 in Prisons and prisoners, Scope of Imprisonment, Technocorrections | Permalink | Comments (3) | TrackBack

"Marijuana backers court conservatives with appeals on states’ rights, ineffective pot laws"

The title of this post is the headline of this new AP article, which includes these passages:

It’s not all hippies backing November’s marijuana legalization votes in Colorado, Oregon and Washington.  Appealing to Western individualism and a mistrust of federal government, activists have lined up some prominent conservatives, from one-time presidential hopefuls Tom Tancredo and Ron Paul to Republican-turned-Libertarian presidential candidate and former New Mexico Gov. Gary Johnson.

“This is truly a nonpartisan issue,” said Mark Slaugh, a volunteer for the Colorado initiative who is based in Colorado Springs, which has more Republicans than anywhere else in the state.  “States’ rights! States’ rights!”  Slaugh cried as he handed out flyers about the state’s pot measure outside a rally last month by Republican vice presidential candidate Paul Ryan.  Quite a few passing Republicans took the flyer....

Most Republicans still oppose legalization.  Presidential candidate Mitt Romney vows to enforce federal law.  When Ryan told a Colorado Springs TV station in September that medical marijuana was “up to Coloradans to decide,” his campaign quickly backtracked and said he agreed with Romney.

When activists make their appeal, it goes like this: States should dictate drug law. Decades of federal prohibition have failed where personal responsibility and old-fashioned parenting will succeed.  Politicians back East have no business dictating what the states do....

Tancredo launched a radio ad this week in which he compares marijuana prohibition to alcohol prohibition as a “failed government program” that, in this case, “steers Colorado money to criminals in Mexico.”

“Proponents of big government have duped us into supporting a similar prohibition of marijuana — even though it can be used safely and responsibly by adults,” Tancredo said.

Pot supporters have lined up other surprising allies this year, even as many Democrats oppose the measures.  Conservative stalwart Pat Robertson, for example, said marijuana should be legal.

In Washington state, Republican U.S. Senate hopeful Michael Baumgartner is running a longshot bid to unseat Democratic U.S. Sen. Maria Cantwell, who opposes it.  “It’s taking a different approach to a very expensive drug war, and potentially a better approach,” he said.

In Oregon, at least one Republican state Senate candidate backs legalization. Cliff Hutchison reasoned that legalizing pot would “cut wasteful government spending on corrections and reduce drug gang violence.”...

Pro-pot conservatives have counterparts on the other side — Democrats who say pot shouldn’t be legal without a doctor’s recommendation.  Democratic governors in Colorado and Washington oppose legalization.  Oregon’s Democratic governor has not taken a stand. President Barack Obama’s administration has shut down medical marijuana dispensaries in California and Colorado.

Republican Colorado state Sen. Steve King is a frequent critic of Colorado’s medical marijuana law.  Conservatives abhor government, but they also fear legalization would increase children’s drug use, he said. “It’s pretty easy to come in and say, ‘Let’s decrease government.’ And I’m all for that. This just isn’t the place to start,” King said. “We have a next generation to protect,” he said.

October 16, 2012 in Campaign 2012 and sentencing issues , Elections and sentencing issues in political debates, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Interesting judicial discussion of what plea agreements ought to say about sentencing

At the end of an otherwise routine criminal ruling handed down by the Sixth Circuit in today in US v. Beals, No. 10-5264 (6th Cir. Oct. 16, 2012) (available here), Senior District Judge Tarnow has an intriguing concurring opinion discussing plea agreements which makes these points:

In this case, Miller’s plea agreement contained a waiver of appeal unless her eventual sentence was “above the sentencing guideline range as determined by the district court.” The Court finds, and I agree, that based on language of her waiver, Miller’s eventual sentence was not above the guidelines range as determined by the district court -- though the district court’s determination of the guidelines range was contrary to the stipulated facts in her plea agreement.

The Court holds that Miller “could have bargained” for a narrower waiver, for instance by including language that she reserved the right to appeal whether “the Court incorrectly determined the guidelines range.” The Court thus implies that Miller consciously chose to forego a more narrow waiver for some unstated advantage, or that she was simply deficient in her bargaining and unnecessarily exposed herself to the possibility of a higher sentence.

My point is not to question the Court’s holding that Miller’s waiver was knowing and voluntary, but rather to note that requiring sophisticated bargaining by criminal defendants to retain the right to appeal a sentence likely contributes to uncertainty regarding whether a plea was knowing or voluntary.  It does not seem to me that justice is served by permitting plea agreements that (bargaining aside) result in defendants agreeing to a plea that they did not intend or properly understand.  Moreover, defendants may have less incentive to accept guilty pleas if they are concerned that they are actually at risk of a higher sentence than they thought had been agreed to in their plea agreement.

I would recommend that counsel for both defendants and the government strive to create plea agreements that state in plain terms the maximum possible sentence a defendant might receive.  Defendants who plead guilty based on an agreement that provides a clear statement of the maximum likely sentence are adequately forewarned of the possible consequences of their guilty plea, even in a “worst case” scenario where, as here, a court construes the evidence and sentencing guidelines differently than a defendant expected when agreeing to their plea.

If discussion of the maximum possible sentence is required in plea agreements the result is to eliminate ambiguity in the guilty-plea process, surely an important goal given the interests at stake....

The plea agreement in this case does not mention the actual maximum possible sentence that Miller might have (and did) receive.  While a stipulation in a plea agreement cannot bind a sentencing court to a particular sentence, plea agreements should state the maximum possible sentence that a defendant might receive and, if subjected to a sentence above that maximum, waivers of appeal should not be enforced.

October 16, 2012 in Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (18) | TrackBack