October 27, 2012
Is justice delayed really justice denied before federal sentencing for child porn professor?The question in the title of this post is prompted by this local federal sentencing story, which is headlined "Vanderbilt professor's sentencing in child porn case delayed again: Two years after his guilty plea, case continued for an eighth time." Here are the details of this intriguing sentencing story:
A Vanderbilt University sociology professor slated to be sentenced Friday for a child pornography conviction had his case continued for an eighth time while he tried to receive a penalty below the federal sentencing guidelines. James Lang, 68, is on leave from Vanderbilt, where he has held a position since 1974. He was charged in 2008 and entered a guilty plea on Sept. 17, 2010.
The government answered his motion for reduced sentencing with a 15-page response in opposition to a variance from sentencing guidelines. The response was received by Lang’s attorney Thursday afternoon and he said he need more time to review it. U.S. District Court Chief Judge William J. Haynes Jr. agreed but did not reschedule the sentencing.
A previous continuance was filed to accommodate Lang with moving plans, another because of a death in his attorney’s family, and others for preparation purposes. The initial sentencing date was set for Dec. 17, 2010.
Lang admitted to looking at child pornography in his office the morning he was interviewed by police in Garland Hall at Vanderbilt, according to the criminal complaint. He also said that he saw no problem with viewing explicit images of children “enjoying themselves” and that he had been viewing such images for many years.
After he and his wife took the computer to have a virus and spyware inspection, thumbnail images of what appeared to be children under the age of 8 caused the owner of a computer repair service to report Lang to local police, according to court documents. More than 5 gigabytes of data with more than 7,000 pornographic images, including “children in sexual positions,” were initially found on Lang’s computer, which was Vanderbilt property. Lang pleaded guilty to possessing 233 images and 13 videos of child pornography.
Several letters of support from Vanderbilt professors and other colleagues were submitted to the court, and he entered a 12-step program while awaiting sentencing. Among his many sociologically driven projects, Lang served as a Vista Volunteer at Southside Settlement House in Columbus, Ohio, and worked as a project director for Crossroads Africa in Gambia, according to the Vanderbilt website.
Lang is under home detention as part of his conditions of release and may face up to 10 years in prison upon sentencing.
As a substantive matter, this case is yet another interesting and challenging child porn downloading sentencing in which lots of different arguments could be presented to make lots of different claims about what sentence here would be "sufficient but not greater than necessary" to achieve congressional sentencing purposes set forth in 3553(a)(2). But as the question in the title of this post spotlights, this case is also intriguing (and controversial?) because of how much time has elapsed between charges, conviction and sentencing.
I know initial federal sentencing dates often get delayed and that a few sentencing continuances are not uncommon. But I cannot recall hearing of another case in which sentencing has been delayed eight times (especially when a defendant is free on bail during this extended period). In addition, because of the defendant's history and characteristics and post-charge behaviors, he may during this extended pre-sentencing period be uniquely able to build stronger arguments for a departure or variance based on his advancing age or his (declining?) health or his (now lengthy) post-offense rehabilitation and actions.
I would be especially interested in hearing from experienced federal practitioners about whether this case is really as unusual as it seems or if, in fact, this kind of lengthy pre-sentencing period is not that uncommon.
October 26, 2012
Pennsylvania Gov signs "Miller fix" sentencing legislation into lawAs reported in this local article, headlined "Bill provides alternatives to life sentences for juveniles convicted of murder," I believe Pennsylvania has now won the award for being the first state to reform its law to comply with the Supreme Court's Eighth Amendment ruling in Miller v. Alabama. Here are the details:
Minors convicted of murder in Pennsylvania could serve as little as 20 years in prison under guidelines set in a bill signed into law by Republican Gov. Tom Corbett on Thursday.
The law gives defendants under age 15 at least 20 years for second-degree murder and 25 years for first-degree. Those ages 15 to 17 would see minimum sentences drop to 25 and 35 years, respectively.
The law was spurred by a recent U.S. Supreme Court decision that bans automatic life-without-parole sentences for juveniles convicted of murder. York County District Attorney Tom Kearney said the law is a fair answer to the court's ruling. "The approach that is made is a pretty well-balanced one," he said....
Opponents of the then-bill had argued that paroled juvenile murderers would be released with very few life skills. However, Kearney said inmates are offered rehabilitation programs and would likely receive life skills and training for jobs while in prison. "We don't call ... it the Department of Corrections for no reason," he said.
The new guidelines set only the minimum sentencing limits, meaning a convicted murderer could serve a longer sentence -- including a life sentence -- and that inmates are paroled only after they've proven they are fit to return to society....
The law applies only to future cases, officials said. People already sentenced to life without parole for murders they committed as juveniles -- including 11 convicted in York County -- remain in legal limbo.... The state Supreme Court is considering what to do about those currently in the prison system under sentences now deemed to be illegal.
October 26, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (5) | TrackBack
Latest California polling data suggests hard-core sentencing will be up real late on election nightI have an inkling (and certainly a hope) that we will know the outcome of the 2012 presidential election not all that long after 9pm EST on November 6th: the polls will by then be closed in the crucial swing states of Colorado, Florida, Iowa, New Hampshire, Ohio, and Virginia. But this big Los Angeles Times article, which provides the latest poll numbers on the two big sentencing reform ballot initiatives in California, suggests that hard-core sentencing fans should plan for very late night watching election returns from the Golden State. the article is headlined "Support for end to California death penalty surges; Nearly half of registered voters still back capital punishment, but the margin has shrunk to 3 percentage points; Voters also favor easing the three-strikes law." Here are excerpts:
Voter support for a ballot measure to repeal California's death penalty has jumped dramatically, though not enough to ensure its passage, a new USC Dornsife/Los Angeles Times poll has found. Support for a separate measure that would ease the state's three-strikes sentencing law remained high, with more than 60% in favor of amending it.
The survey, conducted last week, showed that the gap between supporters and opponents of Proposition 34, the capital punishment measure, is now very small — only 3 percentage points — compared with last month. Still, less than half of respondents said they would vote for the measure, which would replace the death penalty with life imprisonment without the possibility of parole.
Forty-two percent said they would vote for Proposition 34, with 45% saying no. In September, the gap was 38% to 51%, a 13-point difference. A significant 12% of respondents said they did not know how they would vote, nearly identical to the 11% who had not decided last month. "There is no question there has been a sharp shift," said Dan Schnur, who heads the Jesse M. Unruh Institute of Politics at USC. The results suggest that passage is "not impossible" but still "very difficult," Schnur said.
When voters heard more information about Proposition 34, such as its financial ramifications and details of the effect on prisoners, responses flipped: 45% were in favor and 42% against — still very close to the survey's margin of error, which is 2.9 percentage points.
The latest USC Dornsife College of Letters, Arts and Sciences/Los Angeles Times poll [with crosstabs available here] questioned 1,504 registered voters by telephone from Oct. 15 to Oct. 21, before the Proposition 34 campaign launched radio and television ads. Greenberg Quinlan Rosner Research, a Democratic firm, did the survey with American Viewpoint, a Republican company.
Proposition 34 would apply retroactively to condemned inmates, require convicted murderers to work in prison and contribute to victim restitution funds, and direct $100 million to law enforcement over four years. It could save the state as much as $130 million a year, according to California's nonpartisan legislative analyst. California has more than 727 inmates on death row, the most in the nation....
Natasha Minsker, campaign manager for Proposition 34, said the poll's findings prove that "this election is absolutely moving in our direction." But Peter DeMarco, a strategist for the opposition, expressed confidence that the shift was too small to make a difference....
I suspect that the polling on these sorts of initiatives can be subject to lots of statistical noise, so I am quite chary about making book on these latest poll numbers. That all said, it will be big news if either of these sentencing reform initiatives pass, and huge news if they both do. Thus, I now have yet another reason to wish Election Day 2012 was here already.
Meanwhile, support for the three-strikes measure, Proposition 36, has held relatively steady in recent weeks, with 63% of voters in favor, 22% opposed and 15% undecided or not answering. Last month, the initiative was leading by 66% to 20%. "Unless the opponents can convince voters that the criminals being impacted by this measure are still dangerous, the initiative looks pretty safe at this point," Schnur said.
The three-strikes law allows prosecutors to seek sentences of 25 years to life for any felony if offenders were previously convicted of at least two violent or serious crimes, such as rape or residential burglary. Proposition 36 would amend the law so offenders whose third strikes were relatively minor felonies, such as shoplifting or drug possession, would no longer be eligible for life terms. Of the state's nearly 8,900 third-strikers, about a third were convicted of drug or minor property crimes.
This week, the proposition's campaign unveiled a television ad in which the district attorneys from Los Angeles, San Francisco and Santa Clara counties tell voters that the amendment would ease prison overcrowding, save the state millions of dollars and "make the punishment fit the crime." Opponents point out that the current law already allows prosecutors and judges to spare a third-striker the maximum sentence and argue that flexibility is needed to protect the public.
October 26, 2012 in Campaign 2012 and sentencing issues , Death Penalty Reforms, Elections and sentencing issues in political debates, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12) | TrackBack
"How Mandatory Minimums Forced Me to Send More Than 1,000 Nonviolent Drug Offenders to Federal Prison"The title of this post is the headline of this new commentary authored by US District Judge Mark Bennett and published in The Nation. Here are is how it gets going:
Growing up in blue collar Circle Pines, Minnesota, in the 1950s, raised by parents from the “Greatest Generation,” I dreamed only of becoming a civil rights lawyer. My passion for justice was hard-wired into my DNA. Never could I have imagined that by the end of my 50s, after nineteen years as one of 678 federal district court judges in the nation, I would have sent 1,092 of my fellow citizens to federal prison for mandatory minimum sentences ranging from sixty months to life without the possibility of release. The majority of these women, men and young adults are nonviolent drug addicts. Methamphetamine is their drug of choice. Crack cocaine is a distant second. Drug kingpins? Oh yes, I’ve sentenced them, too. But I can count them on one hand. While I’m extremely proud of my father’s service in World War II, I am greatly conflicted about my role in the “war on drugs.”
You might think the Northern District of Iowa — a bucolic area home to just one city with a population above 100,000 — is a sleepy place with few federal crimes. You would be wrong. Of the ninety-four district courts across the United States, we have the sixth-heaviest criminal caseload per judge. Here in the heartland, I sentence more drug offenders in a single year than the average federal district court judge in New York City, Washington, Chicago, Minneapolis and San Francisco — combined. While drug cases nationally make up 29 percent of federal judges’ criminal dockets, according to the US Sentencing Commission, they make up more than 56 percent of mine. More startling, while meth cases make up 18 percent of a judge’s drug docket nationally, they account for 78 percent of mine. Add crack cocaine and together they account for 87 percent.
Crack defendants are almost always poor African-Americans. Meth defendants are generally lower-income whites. More than 80 percent of the 4,546 meth defendants sentenced in federal courts in 2010 received a mandatory minimum sentence. These small-time addicts are apprehended not through high-tech wiretaps or sophisticated undercover stings but by common traffic stops for things like nonfunctioning taillights. Or they’re caught in a search of the logs at a local Walmart to see who is buying unusually large amounts of nonprescription cold medicine. They are the low-hanging fruit of the drug war. Other than their crippling meth addiction, they are very much like the folks I grew up with. Virtually all are charged with federal drug trafficking conspiracies — which sounds ominous but is based on something as simple as two people agreeing to purchase pseudoephedrine and cook it into meth. They don’t even have to succeed.
I recently sentenced a group of more than twenty defendants on meth trafficking conspiracy charges. All of them pled guilty. Eighteen were “pill smurfers,” as federal prosecutors put it, meaning their role amounted to regularly buying and delivering cold medicine to meth cookers in exchange for very small, low-grade quantities to feed their severe addictions. Most were unemployed or underemployed. Several were single mothers. They did not sell or directly distribute meth; there were no hoards of cash, guns or countersurveillance equipment. Yet all of them faced mandatory minimum sentences of sixty or 120 months. One meth-addicted mother faced a 240-month sentence because a prior meth conviction in county court doubled her mandatory minimum. She will likely serve all twenty years; in the federal system, there is no parole, and one serves an entire sentence minus a maximum of a 15 percent reduction rewarded for “good time.”
Several years ago, I started visiting inmates I had sentenced in prison. It is deeply inspiring to see the positive changes most have made. Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars. These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around. They are shocked — and glad — to see me, and it’s important to them that people outside prison care about their progress. For far too many, I am their only visitor.
If lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no evidence that they do. I have seen how they leave hundreds of thousands of young children parentless and thousands of aging, infirm and dying parents childless. They destroy families and mightily fuel the cycle of poverty and addiction. In fact, I have been at this so long, I am now sentencing the grown children of people I long ago sent to prison.
October 26, 2012 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (20) | TrackBack
Are criticisms of Rajat Gupta's two-year prison sentence sound or suspect?The question in the title of this post is prompted by this AP piece headlined "Ex-Goldman Exec's 2-Year Sentence Draws Scrutiny." Here are excerpts, which also includes some highlights from Judge Jed Rakoff's comments about the federal sentencing guidelines:
A two-year prison sentence for insider trading at the height of the 2008 economic crisis, by a man who was once one of the nation's most respected business executives, is a fifth of the 10 years requested by the government and well below sentencing guidelines. Now, some experts are questioning whether it's a fair punishment.
Judge Jed Rakoff described the sentence and $5 million fine given to former Goldman Sachs and Procter & Gamble Co. board member Rajat Gupta, 63, on Wednesday as sufficient to deter others and properly punish the Westport, Conn., resident. "At the same time, no one really knows how much jail time is necessary to materially deter insider trading; but common sense suggests that most business executives fear even a modest prison term to a degree that more hardened types might not. Thus, a relatively modest prison term should be 'sufficient, but not more than necessary,' for this purpose," Rakoff said.
Some legal observers did not agree. Chicago attorney Andrew Stoltmann said the sentence should have been closer to the 10 years prosecutors had recommended because Gupta's crimes were more serious than those committed by Raj Rajaratnam, the billionaire hedge fund founder he tipped off. Rajaratnam is serving 11 years in prison.
"Gupta intentionally betrayed his duties to Goldman Sachs as a director of the company, refused to take responsibility for his actions and put the government through a long and exhaustive trial costing taxpayers millions," Stoltmann said. "Judge Rakoff should have thrown the proverbial book at Gupta and sentenced him to the higher range of the 97 to 121 months prosecutors were requesting."...
Rakoff criticized sentencing guidelines that he said called for Gupta to serve at least 6½ years behind bars. Citing information he received under seal, Rakoff said Gupta's crimes may have occurred because Gupta may have "longed to escape the straightjacket of overwhelming responsibility, and had begun to loosen his self-restraint in ways that clouded his judgment."...
Rejecting defense arguments that a community service sentence would be sufficient, Rakoff said a prison sentence was necessary to send a message to insider traders that "when you get caught, you will go to jail."
"While no defendant should be made a martyr to public passion, meaningful punishment is still necessary to reaffirm society's deep-seated need to see justice triumphant," the judge said. "No sentence of probation, or anything close to it, could serve this purpose."...
Rakoff said he could not spare Gupta from prison and only order him to perform community service. "It's not a punishment. It's what he finds satisfaction doing," the judge said.... In his attack on federal sentencing guidelines that are meant to be advisory, Rakoff said "mechanical adding-up of a small set of numbers artificially assigned to a few arbitrarily-selected variables wars with common sense."
He added: "Whereas apples and oranges may have but a few salient qualities, human beings in their interactions with society are too complicated to be treated like commodities, and the attempt to do so can only lead to bizarre results."
Notably, long-time federal prosecutor and frequent commentator Bill Otis stated in the first comment to a prior Gutpa post that he has "a hard time seeing what interest would be served by giving [Gupta] a sentence longer than he got." In addition to appreciating Bill's candor, his comment spotlight the import and distorting impact of the guidelines even in a post-Booker world. Though Bill Otis sees Gupta's two-year prison term to be "sufficient" in light of the commands of 3553(a), federal prosecutors in this case argued that a guideline sentence at least four times longer (more than eight years) was necessary to serve congressional sentencing goals. And even post-game criticism of Gupta's sentence reflected in the above-quoted article is quick to assert that the guideline range was a better benchmark for a proper sentence.
For social and psychological reasons, I continue to understand why guideline provisions and ranges has such a huge anchoring effect on federal sentencing decision-making even now eight years after the Booker ruling. But for normative and humanitarian reasons, I continue to be saddened that a big book of sentencing suggestions still dominates analysis of federal sentencing decision-making even now eight years after the Booker ruling.
Related prior posts on Gupta sentencing:
- Any early federal sentencing predictions after quick conviction in Gupta insider trading case?
- Interesting commentary on upcoming Gupta sentencing for insider trading
- Rajat Gupta hoping to get by (federal sentencing) with a little help from his friends
- Gearing up for high-profile sentencing of high-profile insider trading defendant
- Might it hurt Rajat Gupta to get sentencing support letters from the 1%?
- "Rajat Gupta Should Walk Free Wednesday"
- Gupta sentencing memos: feds seeking 97 to 121 months in prison, defense requesting probation and "rigorous community service"
- Rajat Gupta gets 24-month prison term, $5 million fine at sentencing for insider trading
October 26, 2012 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (10) | TrackBack
October 25, 2012
The most (unsurprisingly) ignored potential voting group: former felonsThis Reuters article, headlined "U.S. felons a potentially powerful yet shunned voting bloc," spotlights that there is one notable group of voters who have not gotten any love or attention this election season. Here are excerpts from this piece:
Felons could account for up to 10 percent of the roughly 130 million Americans expected to vote in the November 6 election, more than enough to affect the razor-thin margins that could determine the outcome. But as in years past, neither Democrats nor Republicans are doing much to reach out to them.
"Criminals are not a popular constituency," says James Hamm, 64, who spent 17 years in prison in Arizona for a drug-related homicide and now heads an inmate advocacy group with his wife, a retired judge. "Politicians don't want to say, 'Hey, I have the backing of people who committed crimes.'"
Still, both presidential campaigns have reason to be attentive to the estimated 13.4 million felons who are eligible to vote.
Felons traditionally vote Democratic, says Christopher Uggen, a University of Minnesota sociologist, who co-authored a 2006 book, "Locked Out: Felony Disenfranchisement and American Democracy." That is because felons come disproportionately from groups that align with Democrats, such as minorities, the poor and urban residents. In this group, Uggen says, "you aren't going to find too many Mitt Romney supporters."
A 2010 study that Uggen participated in found that just one in five felons who are eligible to vote actually do so, most mistakenly believing they are not. Myriad state laws that take different approaches to restoring felons' voting rights contribute to the confusion....In 38 states, most felons automatically regain the right to vote once they complete their sentences, according to the National Conference of State Legislatures. Felons in others states must not only complete their sentences but wait a certain amount of time before they can again cast ballots. In Maine and Vermont, felons never forfeit their right to vote. In Florida, Iowa, Kentucky and Virginia, felons are barred from voting unless the governor decides otherwise....
"Studies show that the recidivism rate for felons goes down significantly when they are given back their basic civil rights, including the right to vote," said Ron Bilbao of the ACLU in Florida. "The governor went in the wrong direction."
Marc Mauer, executive director of the Sentencing Project, a nonprofit advocacy group for criminal justice, said ex-inmates are generally ignored when it comes to voting. "There simply isn't a lot of encouragement for them to even register," said Mauer. "If we believe everyone should vote, we shouldn't put character conditions on it."
"An odd conservative split on Propositions 34 and 36"The title of this post is the headline of this notable new piece in the Los Angeles Times, and here is how it starts:
A fascinating dichotomy has emerged between the two criminal justice initiatives on the Nov. 6 California ballot. Both are aimed at reducing harsh sentences and thus saving the state money, yet one has attracted support from conservatives and is expected to win handily, while the other is opposed widely by conservatives and trailing in the polls. Why?
Proposition 36, which would tweak the state's three-strikes sentencing law by making it less likely that third-strikers who commit minor crimes end up with life terms, has been endorsed by Republican law-and-order types such as L.A. County Dist. Atty. Steve Cooley, and such GOP heavy-hitters as tax watchdog Grover Norquist of Americans for Tax Reform. Bipartisan support for the measure probably explains why its passage is all but assured. A USC Dornsife/Los Angeles Times poll last month found 66% of voters supporting the measure with only 20% opposed, and although other surveys have pegged the race as a closer call, none have shown a margin of less than 2-to-1 in favor of the initiative.
That's a sharp contrast with Proposition 34, which would replace the state's death penalty with a sentence of life without the possibility of parole. The USC/Times poll found it trailing 38% to 51%. And while it does have some conservative backers, they're not as influential as those supporting Proposition 36. Perhaps the most prominent is Don Heller, a Republican prosecutor who drafted the ballot initiative that reinstated California's death penalty in 1978 but who now thinks it was a terrible mistake. The overwhelming majority of Proposition 34's supporters are Democrats or liberal organizations such as the American Civil Liberties Union. A Field Poll last month found that 50% of Democrats support it, but only 23% of Republicans.
What's puzzling about this is that in many ways, the two initiatives are quite similar. In his statement endorsing Proposition 36, Norquist said: "The Three Strikes Reform Act is tough on crime without being tough on taxpayers. It will put a stop to wasting hundreds of millions in taxpayers' hard-earned money, while protecting people from violent crime." One could say the exact same thing about Proposition 34, which has not met Norquist's favor.
Should judges be angry at sentencing?The question in the title of this post is prompted by this new article by Professor Terry Maroney, titled "Angry Judges." The interesting article covers a lot more that criminal law and procedure issues, but here is one intriguing passage discussing judicial anger and sentencing:
Judicial anger at criminal sentencing often can be justified as well, and for a similar set of reasons. By the time of sentencing, blameworthy conduct already has been shown. Assuming, as the judge must, the accuracy of that finding, the judge is entitled to respond emotionally to any harm the defendant has caused. Expressing anger vividly demonstrates to victims and their survivors that they are within the judge’s zone of care. It communicates, in a way that other demonstrations could not, that they are members of the valued community. It also demonstrates judicial respect for the defendant. As one feels anger only where a human agent has chosen to inflict an unwarranted harm, showing anger reveals the judge’s assessment that the defendant is a fellow human possessed of moral agency. By using his authoritative position to send moral messages to the wrongdoer, the judge ideally frees others in society from feeling a need to do so themselves, including through vigilante action.
In contrast, judicial anger might be used not to send deserved moral messages but to belittle, humiliate, or dehumanize. This is a particular danger in criminal sentencing, but it is by no means limited to that setting. For example, rather than force the defendant to hear both an account of the harm he has caused and the judge’s moral condemnation of those acts, she might call him a “lowlife” or “scumbag.” Insults, gratuitous displays of power, extreme sarcasm, mocking, and demeaning language all reflect that the judge is using anger to assert her dominance. Assertions of power are, to be sure, sometimes appropriate. Anger at lawyers, witnesses, and parties may be helpful in reminding those persons that the judge is in charge of both the courtroom environment and the processes of litigation. Belittling actions appear meaningfully different. Acting so as to humiliate or belittle strongly suggests that anger is no longer operating in isolation: instead, it has become corrupted with contempt. Contempt, like anger, reflects a judgment that a fellow human has acted badly. Unlike anger, it goes on to value that fellow human as “vile, base, and worthless.” It explicitly positions its target as an inferior, not just hierarchically but as a human being, and motivates public assertions of that inferior status. When judicial anger becomes intertwined with contempt, it loses its claim to justification, for it has internalized a fundamentally bad judicial value: superiority. While judges have a legitimate claim to authority, they have no such claim to superiority.
October 24, 2012
California appeals court rules defendant was wrongly precluded from presenting medical marijuana defenseThis local article from California, headlined "Drug conviction reversed in medical marijuana case," reports on a notable intermediate appellate court ruling. Here are the basics:
The full 20-page appellate opinion in this case is available at this link.
An appeals court reversed the felony conviction of a former marijuana dispensary manager in Kearny Mesa Wednesday who was found guilty of possessing and selling the drug for profit. The court found that the trial judge erred by barring Jovan Jackson from arguing that his conduct was permitted under California laws, which allows medical marijuana patients to associate for the purpose of “collectively cultivating” the drug....
Jackson was convicted in 2010 of illegally possessing and selling the marijuana through the Answerdam Alternative Care collective. He was placed on probation for three years and ordered to serve six months in county jail.
Before trial, the District Attorney’s Office filed a motion asking the judge not to allow Jackson to argue a medical marijuana defense. Prosecutors contended that Answerdam was not a collective as allowed by law, but instead a “retail business” that took in $1,000 to $1,500 a day....
On Wednesday, a three-judge panel of the 4th District Court of Appeal voted unanimously to reverse Jackson’s conviction. The judges determined that the large membership of Jackson’s collective, very few of whom participated in the actual cultivation process, did not preclude him from presenting a medical marijuana defense.
However, the court stressed that when considering such a defense, a judge or jury has to determine whether an organization operates on a nonprofit basis. To answer that question, and organization’s large membership and system of management are relevant.
"Prosecutorial Discretion, Hidden Costs, and the Death Penalty: The Case of Los Angeles County"The title of this post is the title of this notable new paper with interesting data and an interesting perspective on the operation of the death penalty in California. The paper is authored by Nicholas Petersen and Mona Lynch, and here is the abstract:
This article analyzes the processing of homicide cases in Los Angeles County from 1996 to 2008 to measure the time-costs of pursuing cases capitally and to examine how prosecutorial discretion in homicide charging is exercised in this jurisdiction.
To answer these questions, we explore two related outcomes: (1) the odds of a “death-notice” filing and (2) time-to-resolution. According to Model 1, death-eligible cases with multiple special circumstances are significantly more likely to be prosecuted capitally than those with only one special circumstance. In light of the limited financial information regarding capital punishment at the county level, Models 2-4 utilize Cox Proportional Hazard regression to investigate the time-costs associated with death-eligibility. Estimates indicate that capital cases take significantly longer to reach resolution than noncapital cases. Furthermore, the filing of special circumstances increases survival time in noncapital cases. In addition to highlighting the time-costs of trying cases capitally, these findings reveal those associated with the prosecution of special circumstance cases, even when the death penalty is not ultimately sought.
By examining capital costs at the county level, this analysis contributes to the ongoing policy reform debate in California that aims to address the state’s “dysfunctional” death penalty system.
Rajat Gupta gets 24-month prison term, $5 million fine at sentencing for insider trading
The early news reports from US District Court in downtown NYC indicate that former Goldman Sachs director Rajat Gupta was sentenced to two years in prison and a $5 million fine for his insider trading, and that he is scheduled to report to prison on January 8, 2013.
This sentence is between the extremes of th 8-10 years sought by prosecutors and the "rigorous community service" sought by the defense. And it should come as no surprise to regular readers based on my comment in this post after seeing the sentencing submissions: "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 I have no actual experience as a bookie, I think the fact that my betting line hit the actual outcome on the number means that the house keeps all bets. Maybe I should look into the (federal sentencing)bookie business.
UPDATE: This new Wall Street Journal account of the sentencing includes these excerpts and quotes of note:
"I think the record, which the government really doesn't dispute, bears out that he is a good man," said Judge Rakoff during the hearing. "But the history of this country and the history of the world, I'm afraid, is full of examples of good men who do bad things."...
Mr. Gupta, who was accompanied to court by his wife and four daughters, apologized to his friends, family and the charitable institutions that he helped to found. "The last 18 months have been the most challenging period of my life since I lost my parents as a teenager," he told the judge before sentencing. "I lost my reputation that I built over a lifetime. Much of the first year seemed surreal to me. However, since the trial I've come to accept the reality of my life going forward," he said....
Prosecutors had argued that Mr. Gupta should receive up to 10 years in prison under the federal sentencing guidelines, which in insider-trading cases are largely based on profits, or losses avoided, because of the illegal tips. But the guidelines are advisory and Judge Rakoff often sentences below them....
Manhattan U.S. Attorney Preet Bharara said in an emailed statement: "With today's sentence, Rajat Gupta now must face the grave consequences of his crime — a term of imprisonment. His conduct has forever tarnished a once-sterling reputation that took years to cultivate. We hope that others who might consider breaking the securities laws will take heed from this sad occasion and choose not to follow in Mr. Gupta's footsteps."
NACDL launches extraordinary new resource: on-line state-by-state "Restoration of Rights Database"As detailed in this news release, the National Association of Criminal Defense Lawyers (NACDL) has rolled out a amazing new on-line resource. I will let part of the text of the release explain:
I have now already spent more than an hour clicking around these NACDL pages to discover a stunning amount of valuable and user-friendly materials assembled via this project. Kudos to everyone involved in this important and productive endeavor.
NACDL is pleased to offer as both a resource for its members and as a service to the general public, a collection of individual downloadable documents that profile the law and practice in each U.S. jurisdiction relating to relief from the numerous civil rights and other consequences of criminal conviction. NACDL today launches this new section of its online Resource Center to house NACDL member and former U.S. Pardon Attorney (1990-97) Margaret Colgate Love’s comprehensive work on this topic in a user-friendly format. It promises to be an indispensable guide for defense lawyers as well as members of the public affected by the collateral consequences of a conviction and those re-entering society or the workforce after a conviction.
As a result of the twin crises of overcriminalization and mass imprisonment in the United States, the population that can be served by this tremendous new resource is, sadly, enormous.... [because] is reported that some 65 million people, or one in four Americans, have an arrest or conviction record.
This new resource offers free assistance to those tens of millions of people and their lawyers, offering an interactive map with individual profiles summarizing the law and practice in each U.S. jurisdiction and the federal system regarding relief from the collateral consequences of conviction, including obtaining a pardon, expungement and the restoration of civil rights. Click on a jurisdiction and you will get a short summary and a full profile detailing that jurisdiction’s law relating to both the loss and restoration of civil rights and firearms privileges and discussing any provisions on non-discrimination in employment and licensing. These materials will be an enormous aid to lawyers in minimizing the collateral consequences suffered by clients and in restoring their rights and privileges.
In addition to the jurisdictional profiles, there is a set of charts covering all 50 states plus territories and the federal system, that provide a side by side comparison that makes it possible to see national patterns in restoration laws and policies....
A team of pro bono attorneys at the firm of Crowell & Moring LLP, led by partner Harry P. Cohen, provided significant assistance with this project, as did a number of law students from the Washington College of Law at American University and the University of Toledo School of law. Detailed acknowledgements are provided on the project’s home page, which is now live and publicly available at www.nacdl.org/rightsrestoration.
October 24, 2012 in Clemency and Pardons, Collateral consequences, Data on sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (7) | TrackBack
Third time around, "Millenium Bomber" gets (reasonable?) longer term of 37 years in prisonAs reported in this AP piece, the so-called "Millenium Bomber" was sentenced for a third time today after his first two sentences had been reversed by the Ninth Circuit as unreasonable. Here is what happened:
Algerian terrorist Ahmed Ressam was sentenced Wednesday to 37 years in prison for plotting to bomb Los Angeles International Airport around the turn of the new millennium. Ressam was arrested in December 1999 as he drove off a ferry from Canada into Washington state with a trunk full of explosives. U.S. District Judge John C. Coughenour had twice ordered him to serve 22-year terms, but both times the sentences were reversed on appeal.
Ressam's attorneys had conceded that he should face at least three decades to satisfy the appeals courts, but no more than 34 years. The Justice Department had sought life in prison because of the mass murder he intended to inflict, and because he recanted his cooperation with federal investigators....
Ressam's case has been vexing because he started cooperating after he was convicted and was interviewed more than 70 times by terror investigators from the U.S., Canada, Great Britain, Spain, Italy, Germany and France. Information he provided helped convict several terror suspects; prompt the famous August 2001 FBI memo titled "Bin Laden determined to strike in U.S.;" and contribute to the arrest of suspected Osama bin Laden lieutenant Abu Zubaydah, who remains in custody without charges at Guantanamo Bay, Cuba.
However, Ressam subsequently recanted all of his cooperation when it became clear that the prosecutors weren't going to recommend that he serve less than 27 years in prison. The recanting forced the Department of Justice to drop charges against two suspected co-conspirators, Samir Ait Mohamed and Abu Doha.
In previously sentencing Ressam, Coughenour noted that before he went to trial, the government offered him a 25-year sentence if he would plead guilty -- no cooperation necessary. Ressam refused, but Coughenour said that any discount for Ressam's cooperation, while it lasted, should start from that 25-year offer. The appeals court rejected that rationale.
I suspect that federal prosecutors will be disinclined to appeal yet again, even though based on time already served and time off for good behavior Ressam could possibly be free again not long after 2030. At this stage, I suspect prosecutors recognize it might be very hard to convince the Ninth Circuit that a sentence now 15 years longer is still unreasonable.
A few prior posts on the Ressam sentencings:
- Millennium bomber gets 22 years
- Notable terrorism resentencing results in same sentence
- Ninth Circuit panel reverses "millenium bomber" sentence again
- En banc Ninth Circuit finds Millennium Bomber sentence substantively unreasonable
- After too much previous sentencing success, lawyers for "Millenium Bomber" propose longer prison term
"States consider moving beyond medical marijuana"The title of this post is the headline of this lengthy new USA Today piece. Here are excerpts:
Now that medical marijuana is permitted in about one-third of the nation, advocates hope to move beyond therapeutic uses with ballot questions in three states that could legalize pot for recreational use. Voters in Colorado, Washington state and Oregon face proposals to change state laws to permit possession and regulate the sale of marijuana — though the plant with psychoactive properties remains an illegal substance under federal law.
Approval in even one state would be a dramatic step that most likely would face legal challenges but could also bring pressure on the federal government to consider modifying the national prohibition on marijuana that has been in place since 1937, backers say. "One of these states crossing that Rubicon will immediately set up a challenge to the federal government," says Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws.
Independent polls have shown proponents leading in Washington and Colorado a month or more before the election, but the outcome remains in doubt, and both sides are aware of what happened in California in 2010: The similar Proposition 19 lost 53.5% to 46.5% after an early lead in favor disappeared. "It's a similar trajectory here," says Laura Chapin, spokeswoman for a group opposing Colorado's Amendment 64, who predicts the proposal will be defeated....
Medical-marijuana proposals are on the ballot in three states: Arkansas, Massachusetts and Montana. The ballot issues arise as the conflict between the federal ban and more permissive states has been growing....
In California, federal prosecutors have been shutting down medical-marijuana dispensaries, sometimes threatening landlords with asset forfeiture for leasing space to pot shops. Yet federal prosecutors typically do not go after cases of simple possession of small quantities. In Washington state, former federal prosecutors and law enforcement officials are among the supporters of legalization.
Campaigns have been intense in Washington and Colorado. In Oregon, St. Pierre says, marijuana advocates are less hopeful and support is not as well-financed. Former Seattle police chief Norm Stamper, who supports Washington's Initiative 502, says some police and prosecutors have grown frustrated at the futility of marijuana prohibition and see regulation by states as a way to take the trade out of the hands of criminals and free up the justice system to focus on more serious matters....
In Washington state, the issue is being sold as a chance to license, regulate and tax marijuana and impose a tough legal standard banning driving a vehicle while impaired by marijuana. Backers added the drugged-driving provision after seeing opponents of California's proposition two years ago attack it for failing to address driving after smoking or otherwise ingesting pot.
Colorado's proposal would authorize state-licensed production and retail facilities but leave it to lawmakers to follow up with any driving restrictions, says Mason Tvert, co-director of a group pushing the amendment.
New Approach Washington is airing $2 million worth of TV ads in favor of Initiative 502, campaign director Alison Holcomb says. Among them are ads featuring endorsements from two former U.S. attorneys from the Bush and Clinton administrations and a former Seattle FBI chief....
In Colorado, Chapin's opposition group, Vote No on 64, has no TV ads. It touts opposition to the measure by Democratic Gov. John Hickenlooper, Denver Mayor Michael Hancock, area teachers, ministers and law enforcement groups. In Washington, the opposition group No on I-502 is led by Steve Sarich, a medical-marijuana entrepreneur, who calls the legalization initiative "a Trojan horse" for the strict anti-drugged-driving provision....
Holcomb ... says approval of the legalization initiative would demonstrate to the federal government that, as in the repeal of the prohibition on alcohol in the early 20th century, the public is ready for change. "This is one of those issues that has to percolate up from the states," she says. "Congress and the administration need to see that the will of voters has shifted and we are ready to try something different."
October 23, 2012
Eleventh Circuit decides only SCOTUS can decide Ring invalidates Florida's capital sentencing processThe Eleventh Circuit has a terrifically interesting habeas opinion concerning Florida's death sentencing procedures today in Evans v. Florida DOC, No. 11-14498 (11th Cir. Oct. 23, 2012) (available here). Here is the first paragraph of the opinion and two key paragraphs from the heart of the opinion which summarize the issues and the panel's analysis:
Confident that he knew what the future would bring, one of Shakespeare’s characters boasted that “[t]here are many events in the womb of time which will be delivered.” William Shakespeare, Othello, Act I, Scene 3, lines 412–13. On the subject of lower courts predicting that the Supreme Court is going to overrule one of its own decisions, however, Judge Hand cautioned against “embrac[ing] the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant.” Spector Motor Serv. v. Walsh, 139 F.2d 809, 823 (2d Cir. 1943) (Hand, J., dissenting). The Supreme Court has made Hand’s warning a clear command by repeatedly instructing lower courts that when one of its earlier decisions with direct application to a case appears to rest on reasons rejected in a more recent line of decisions, we must follow the directly applicable decision and leave to the high Court the prerogative of overruling its own decisions. As will become apparent, those instructions are dispositive of the State’s appeal from the grant of habeas corpus relief in this case....
The State appeals the part of the district court’s judgment that granted Evans habeas relief from his death sentence on the theory that application of the jury sentencing provisions of the Florida statute violated his Sixth Amendment rights, as interpreted in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002). Florida’s procedures comply with the Sixth Amendment and Ring, according to the State, because a judge may sentence a defendant to death only after considering and giving “great weight” to a jury’s advisory sentence. See, e.g., Ault v. State, 53 So. 3d 175, 200 (Fla. 2010) (“[T]he court must independently consider the aggravating and mitigating circumstances and reach its decision on the appropriate penalty, giving great weight to the jury's advisory sentence.” (citing Tedder v. State, 322 So. 2d 908 (Fla. 1975))). And a jury cannot advise in favor of death unless it finds beyond a reasonable doubt at least one statutory aggravating circumstance. See, e.g., Ault, 53 So. 3d at 205. Evans, on the other hand, contends that the district court got it right because under Florida’s sentencing procedure a judge and not the jury actually finds the facts necessary to establish an aggravating circumstance, which makes the defendant death eligible.
Three lines of Supreme Court decisions are relevant to our decision in this case. The first line of decisions specifically upholds the advisory jury verdict and judicial sentencing component of Florida’s capital punishment statute. The second line involves the unconstitutionality of Arizona’s former capital sentencing procedures under which a judge, without any input from the jury, found the facts necessary to authorize a death sentence. The third and decisive line of decisions instructs us to follow directly applicable Supreme Court decisions until that Court itself explicitly overrules them.
Ninth Circuit finds "fundamental right of to familial association" made special sex offender SR conditions "substantively unreasonable"A lengthy opinion from the Ninth Circuit today in US V. Wolf Child, No. 11-30241 (9th Cir. Oct. 23, 2012) (available here), should be of interest to anyone who has ever been concerning about the application of broad supervised release conditions. Here is how the panel opinion gets started:
Timothy Eric Wolf Child, a Native American, appeals a special condition of supervised release imposed by the district court after he pleaded guilty to attempted sexual abuse. The special condition, condition 9, prohibited Wolf Child from residing with or being in the company of any child under the age of 18, including his own daughters, and from socializing with or dating anybody with children under the age of 18, including his fiancée, in both cases unless he had prior written approval from his probation officer. The district court imposed the special condition without first making any specific findings regarding the necessity of restricting Wolf Child’s ability to have contact with his children and his fiancée. It did so on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members. We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a “particularly significant liberty interest.” The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary. Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child’s relationship with the affected family members, it committed procedural error with regard to these specific individuals. Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child’s ability to reside or socialize with his own children and with his fiancée is substantively unreasonable.
In addition, we conclude that special condition 9 is overbroad both by virtue of prohibiting Wolf Child from being in the company of any child under the age of 18 under any circumstances and by similarly prohibiting him from dating or socializing with anybody who has children under the age of 18, regardless of the circumstances, without prior approval of his probation officer. On remand, if the district court deems it appropriate to adopt a special condition limiting Wolf Child’s contact with children under the age of 18 (other than his own children) and associating with parents of children under the age of 18 (other than his fiancée) it must ensure that any such condition is reasonably necessary to accomplish the statutory goals of supervised release and that it infringes on his particularly significant liberty interests no more than reasonably necessary to accomplish those goals.
October 23, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack
Latest campaign front news concerning California death penalty repeal initiativeThis new local article, headlined "California's Prop. 34: Battle over fate of state's death penalty heating up," reports on the latest campaign developments two weeks before California's go to the polls to decide whether to repeal the state's death penalty. Here are excerpts:
[T]he two rival campaigns are unveiling ads this week relying on very different messages to appeal to voters being asked for the first time to abandon the death penalty since it was restored more than three decades ago. In short, the pro-Proposition 34 forces are asking voters to save California money and rid the state of the justice system's most costly and controversial law. And law enforcement foes of the measure are reminding the public of the notorious killers who wind up on death row, from Richard Allen Davis to mass murderer Charles Ng.
Proposition 34 backers on Monday launched a series of statewide television and radio ads, bankrolled by a campaign that has pulled in more than $6.5 million from a roster of the rich and famous. Actors Martin Sheen and Edward James Olmos provide the introductions to the television ad, which features a Los Angeles man who spent more than 20 years in prison for a murder he did not commit.
The radio spots focus on the central theme of the Proposition 34 campaign: that the California death penalty system is too flawed and expensive to maintain and should be scrapped to save what backers say could be a billion dollars or more in the coming decade. Don Heller, a former Sacramento prosecutor who co-authored the 1978 law and has now renounced the death penalty, anchors the radio ads. "These ads are going to be important," said former Los Angeles District Attorney Gil Garcetti, a one-time death penalty supporter now backing the campaign.
Meanwhile, the cash-strapped opposition to Proposition 34, with just a few hundred thousand dollars in campaign funds raised so far, is relying on Web advertisements that offer up a new death row villain to profile every few days, highlighting victims' families and law enforcement officials who've encountered the worst killers in California. The ads thus far have included Ng and the most recent released on Monday about Tahua "Tao" Rivera, sentenced to die for the 2004 slaying of a Merced police officer.
Using what they call a "grass roots" campaign, the No on Proposition 34 leaders are also taking their show on the road. That includes a public event Tuesday in San Jose, where Santa Clara County District Attorney Jeff Rosen, San Mateo County District Attorney Steve Wagstaffe and Marc Klaas, father of murder victim Polly Klaas, will speak out against the measure.
New Slate commentary on upcoming Gupta sentencingHarlan Protass has this new commentary at Slate headlined "Rajat Gupta Could Go to Prison for 10 Years for Insider Trading: Even though he wasn’t a major player — is that fair?". Here are excerpts:
On Wednesday Rajat Gupta will appear in Manhattan federal court to be sentenced for passing secrets he learned, while serving on the board of directors of Goldman Sachs, to Raj Rajaratnam, the former chief of hedge fund giant Galleon Group. Rajaratnam himself was convicted in May 2011 of being the center of the biggest insider trading ring in decades. He’s serving 11 years for his crimes, one of the longest sentences ever for insider trading.
Like Rajaratnam, Gupta, the former head of McKinsey & Company, deserves punishment. He was convicted of a type of securities fraud, and fraud is a form of theft. He wrongly used his position of power and influence for personal advancement, corroding Main Street’s trust and confidence in Wall Street.
Still, Gupta is no Rajaratnam. Gupta tipped inside information about one company to Rajaratnam, while Rajaratnam traded on confidential information collected from many sources. So you’d expect that Gupta would be treated differently when he appears for sentencing. Federal sentencing guidelines, however, suggest a prison term for him that’s similar in length to the 11 years Rajaratnam is serving. And prosecutors want a sentence within those guidelines, just as they want for the hundreds of defendants sentenced in federal courts nationwide every day. Because what Gupta and Rajaratnam did is so different, though, sentencing Gupta to anything like the time Rajaratnam is serving undermines the whole purpose of the sentencing scheme that prosecutors say they want to uphold....
Gupta and Rajaratnam are like the kingpin and corner street dealer who do roughly the same amount of time for drug dealing, as happens to a disturbing degree in narcotics cases (which accounted for almost 30 percent of the 80,000-plus cases resolved in federal court in 2011). Because drug sentences are fixed by drug type and quantity, not role, defendants in distribution rings face the same potential penalty, whatever their actual position and conduct. That’s what happened to Jamel Dossie, a small-time, street-level drug dealer’s assistant who was an addict. In New York in March, he received a five-year mandatory minimum sentence for his role as a go-between in four hand-to-hand crack sales for a total gain to himself of $140.
Luckily for Rajat Gupta, his sentencing judge is Jed S. Rakoff, who has said that where the federal guidelines “provide reasonable guidance,” they “are of considerable help to any judge in fashioning a sentence that is fair, just and reasonable,” but also argued that when the guidelines “have run so amok that they are patently absurd on their face,” courts should rely more on general sentencing principles. Judge Rakoff faced this dilemma in the case of Richard Adelson, who was convicted of participating in a conspiracy to overstate the financial results of Impath Inc. (a laboratory services company) and artificially inflate its stock price. The guidelines recommended life imprisonment for him, even though other people had concocted and operated the scheme for years before Adelson joined it. Judge Rakoff gave him 42 months, describing the life sentence recommended by the guidelines as “patently unreasonable.”
It’s because of Judge Rakoff that Gupta is widely expected to receive a sentence considerably less than what federal guidelines recommend, no matter what the government’s lawyers say. (Gupta’s own counsel have asked for probation.) But the approach of this judge is the exception. The reality of federal sentencing means that it should be closer to the rule.
Related posts on upcoming Gupta sentencing:
- Any early federal sentencing predictions after quick conviction in Gupta insider trading case?
- Interesting commentary on upcoming Gupta sentencing for insider trading
- Rajat Gupta hoping to get by (federal sentencing) with a little help from his friends
- Gearing up for high-profile sentencing of high-profile insider trading defendant
- Might it hurt Rajat Gupta to get sentencing support letters from the 1%?
- "Rajat Gupta Should Walk Free Wednesday"
- Gupta sentencing memos: feds seeking 97 to 121 months in prison, defense requesting probation and "rigorous community service"
October 22, 2012
"Effects of change in California criminal justice system difficult to discern"The title of this post is the headline of this notable new article appearing in the Sacremento Bee. Here are excerpts:
Critics of a year-old law shifting responsibility for thousands of convicted felons to the counties have seized on the brutal beating of a San Joaquin County woman -- allegedly by a man released from jail just days before the attack -- as evidence that the law is eroding public safety. But criminal justice experts say that understanding the law's effects will take more time and more information than a few headline-grabbing cases can provide.
Parolee Raoul Leyva allegedly beat Brandy Marie Arreola, then 20, into a coma in April. Shortly before the attack, Leyva had been sentenced to jail for 100 days for violating the conditions of his parole.
He was released after two days because of overcrowding in the jail. Before the passage last year of the criminal justice reform law -- AB109 -- he would have been subject to prison time, rather than jail, for the parole violation. Critics of prison realignment, as AB109 is commonly known, say crime rates are surging because fewer people such as Leyva are going to prison, and some may be getting out of jail early because of overcrowding.
Leyva's last prison term was for motor vehicle theft, a nonviolent offense. Crimes classified as nonviolent are now met with jail or community supervision instead of prison. Violations of parole by nonviolent offenders also mean jail time rather than prison for the offender.
The law's enactment followed a court order to reduce the state's prison population. The prisons were at double their capacity at the time of the order. Since then, the prison population has dropped by more than 26,000 inmates.
"It's diminishing public safety," said Lynne Brown, director of Advocates for Public Safety, a group that represents law enforcement officers who want to repeal AB109. Republican legislators agree, and they have called for a special session of the Legislature to change or kill the law. They say that crime has increased in Sacramento, Stockton, Oakland and Los Angeles, according to preliminary numbers from police departments.
But police data actually show a mixed picture. In Sacramento, Part I crimes, those that are reported to the FBI and eventually become the uniform crime rate for a city, are up by 8.1 percent this year compared with the same period in 2011. Homicides, however, decreased by 18.5 percent, according to Sacramento Police Department crime data.
Violent crime is currently down in Los Angeles by 7 percent and property crime is the same year-to-date. In Oakland, Part I crimes have increased by 20 percent, according to the Oakland Police Department. Some increases -- like those for rape (up 21 percent) and robbery (up 20 percent) -- are striking. Part II crimes -- including minor assault, drug possession, vandalism and fraud – have decreased by 10 percent....
But determining the effect of a single policy on crime rates is difficult, said Joan Petersilia, professor of law at Stanford University and co-director of the Stanford Criminal Justice Center. "That is one of the hardest questions to answer in crime," Petersilia said. Factors that influence crime rates range from the economy and the unemployment rate to family life, Petersilia said.
Shrinking police forces in cities struggling with tight budgets might also have an effect, noted Barry Krisberg, director of Research and Policy at the Chief Justice Earl Warren Institute on Law and Social Policy at UC Berkeley....
Counties have responded to the law in different ways, from sending people back into the community with ankle bracelets to putting people who once would have gone to prison in jail. Realignment in Los Angeles, which is increasing its jail population, is different from realignment in San Francisco, where the focus is on rehabilitation and reducing the jail population. "Realignment isn't one thing," Krisberg said. "It's 58 things."
The law did not include any method for assessing the impact of the policy change. Counties that have accepted technical assistance from the state are required to report on their realigned population, but there are no set standards for what specific data counties must report.
Researchers, including Petersilia, are working on studies funded by foundations. "The state is not collecting data on this," Krisberg said. "I think it is scandalous." Nuanced analysis is essential to understanding the effects of realignment, Petersilia said. "We do a great disservice when we ask if it is working and only look at one measure."
Seventh Circuit panel rejects defendant's Eighth Amendment challenge to crack LWOP sentenceThe Seventh Circuit has an interesting little panel ruling today rejecting an Eighth Amendment claim in US v. Ousley, No. 11-2760 (7th Cir. Oct. 22, 2012) (available here). Here is how the opinion starts and ends:
Anthony A. Ousley has an extensive history of peddling illegal drugs. Caught dealing drugs yet again, Ousley was convicted of four felonies, including one count of possession of more than 50 grams of crack cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). On that count, the district court imposed a mandatory life sentence pursuant to 21 U.S.C. § 841(b)(1)(A). On appeal, Ousley contends that the Eighth Amendment’s prohibition against cruel and unusual punishments precludes a mandatory life sentence for dealers who possess a smaller quantity of crack cocaine than the quantity of powder cocaine necessary to trigger a similar sentence for powder cocaine dealers. We affirm....
Ousley questions the continued vitality of these decisions [rejecting similar prior appeals] in light of the Supreme Court’s recent Graham decision addressing the constitutionality of sentencing a juvenile to life without parole for a non-homicide crime. Before Graham, the Supreme Court had adopted categorical rules prohibiting death sentences for certain types of crimes or offenders.... In Graham, the Supreme Court held that sentencing a juvenile to life without parole for a non-homicide crime constitutes cruel and unusual punishment. 130 S. Ct. at 2030; see also Miller v. Alabama, 132 S. Ct. 2455, 2475 (2012) (extending Graham to juvenile murderers). Thus, Graham is the first instance wherein the Supreme Court endorsed a categorical prohibition on a non-capital sentence — life without parole — for a certain type of offender — juveniles.
Ousley argues that Graham relieves us of our obligation to follow Harmelin, Ewing, and our decisions rejecting Eighth Amendment challenges to life sentences imposed pursuant to § 841(b)(1)(A). According to Ousley, Graham empowers us to consider in the first instance whether to adopt a categorical prohibition on mandatory life sentences without parole for crack cocaine dealers who possess an amount of crack cocaine less than the amount of powder cocaine necessary to trigger a mandatory life sentence for powder cocaine dealers. Ousley urges us to embrace this categorical rule based on the purported national consensus against crack and powder cocaine sentencing disparities.
Congress has addressed any national consensus issue in the Fair Sentencing Act. And this court recently held that Graham and Miller do not abrogate Harmelin. United States v. Cephus, 684 F.3d 703, 709 (7th Cir. 2012) (“Neither opinion overrules Harmelin; both, indeed, distinguish it explicitly. Our defendants were not juveniles and their crimes were more serious than the crime in Harmelin.”). Moreover, “[e]ven if we thought Harmelin inconsistent with Graham and Millerand likely to be overruled, the Supreme Court has . . . told the lower courts in no uncertain terms to leave the overruling of its precedents to it.” Id.
Therefore, we conclude that Harmelin, Ewing, and our precedent unmistakably foreclose Ousley’s Eighth Amendment challenge to § 841(b)(1)(A). The district court did not commit legal error — much less plain error.