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December 8, 2012

Another young life cut short by famous drunk driver ... thanks in part to undue sentencing leniency

The NFL provides some more sad crime and punishment news this Saturday as detailed in this NBC Sports report headlined "Cowboys’ Jerry Brown dead, teammate Josh Brent charged." Here are the basics:

Cowboys linebacker Jerry Brown has died in an early morning car crash, and Cowboys nose tackle Josh Brent has been charged with intoxication manslaughter in Brown’s death. The police department in Irving, Texas, has confirmed that Brown died in a crash early this morning and Brent (whose legal name is Josh Price-Brent) was charged.

“Officers at the scene believed alcohol was a contributing factor in the crash; therefore, Price-Brent was asked to perform field sobriety tests,” a statement from the Irving Police Department said. “Based on the results of the tests, along with the officer’s observations and conversations with Price-Brent, he was arrested for driving while intoxicated. He was transported to an area hospital for a mandatory blood draw. Once it was learned that the passenger of his vehicle had died as a result of the crash, Price-Brent was booked into the Irving City Jail on one count of Intoxication Manslaughter.”

Adding aggravation and insult to this fatal injury is this follow-up story headlined "Josh Brent had a prior DUI arrest in college":

The arrest for intoxication manslaughter was not the first time Josh Brent has been charged with drinking and driving. The Cowboys nose tackle, who was arrested Saturday morning after a one-car crash that killed teammate Jerry Brown also had a drunken driving arrest in Illinois when he was in college.

In June 2009, he was sentenced to two years probation and 60 days in jail as part of a plea deal from a March 2009 DUI arrest in Champaign County, Illinois.

I cannot help but wonder if Jerry Brown would still be alive today if Josh Brent had gotten sentenced somewhat more severely for his first DUI.  And, looking forward, I think NFL Commissioner Roger Goodell would do more good for both his sport and society if, rather than worry too much about kickoffs, he were now to decree that any NFL player convicted of any DUI charge will be suspended for at least two years (and perhaps even for life).

December 8, 2012 in Celebrity sentencings, Offense Characteristics, Who Sentences? | Permalink | Comments (18) | TrackBack

Should history of concussions always be a critical concern at sentencing?

Healthscan13aThe question in the title of this post is prompted by this notable story out of Florida covered by NBC Sports concerning the state sentencing of former NFL player (and OSU Buckeye) David Boston.  The piece is headlined "David Boston gets six months in jail, concussions cited at sentencing," and here are the details:

Former NFL wide receiver David Boston was sentenced to six months in prison today for punching a woman last year, but the sentence could have been much more severe, as prosecutors were seeking to put Boston behind bars for four years.

So why did the judge give Boston a more lenient sentence?  In part, because Boston blamed concussions suffered in football for his actions off the field, and the judge found Boston’s claims convincing.

According to the Sun Sentinel, a psychiatrist testified at Friday’s sentencing hearing that Boston had at least four concussions from playing football, and Circuit Judge Charles Burton said he agreed to impose less jail time than prosecutors were seeking because of evidence that Boston suffers from a brain disorder [more on Boston's crime and sentencing can be found in this Sun Sentinel piece].  Boston said in court that he is suing the NFL over head trauma he suffered on the field.

With thousands of former players now suing the NFL for brain damage they say they suffered during their playing days, this surely won’t be the last time we hear of a player blaming brain damage after being convicted of a crime.  The 34-year-old Boston, a once-promising Pro Bowler who has had several off-field problems, pleaded guilty last month to felony aggravated battery in connection with last year’s incident.

Effective capital defense attorneys have a long history of investigating and presenting evidence of a defendant's traumatic brian injury at the penalty phase of a death penalty case.  But I suspect that relatively few defense attorneys in non-capital cases have a habit of even considering whether their clients might have a history of concussions.

I am not surprised (but still impressed) that the attorney and judge involved in a former NFL's player's sentencing gave considerable attention to a history of concussions.  But statistics indicate that hundreds of thousands of high-school and college athletes suffer concussions every years, and I doubt many criminal defense attorneys even think to ask about a criminal defendant's teenage sports experiences when developing a record of mitigating evidence for sentencing.  Indeed, I fear that, unless and until formal sentencing law in some way were to require judges to consider this "silent epidemic,"  very few defendants with a history of concussions will be able to get the same kind of sentencing benefit as former NFL players like David Boston.

December 8, 2012 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

December 7, 2012

"On the Chopping Block 2012: State Prison Closings"

The title of this post is the title of this new research report from The Sentencing Project. Here is how it begins:

The Bureau of Justice Statistics recently reported that the overall state prison population declined for the third consecutive year in 2011. State sentencing reforms and changes in parole revocation policies have been contributing factors in these reductions. As a result, state officials are now beginning to close correctional facilities after several decades of record prison expansion. Continued declines in state prison populations advance the narrative that the nation’s reliance on incarceration is largely a function of policy choices.

In 2012, at least six states have closed 20 prison institutions or are contemplating doing so, potentially reducing prison capacity by over 14,100 beds and resulting in an estimated $337 million in savings. During 2012, Florida led the nation in prison closings with its closure of 10 correctional facilities; the state’s estimated cost savings for prison closings totals over $65 million. This year’s prison closures build on closures observed in 2011 when at least 13 states reported prison closures and reduced prison capacity by an estimated 15,500 beds.

December 7, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Just who decides whether serious child porn case is in state or federal system?

I kind of know the answer to the question in the title of this post (as explained below), but this is still the inquisitive reaction I often have after reading about a state child porn sentencing decision like this one reported today out of Pennsylvania:

Calling him a danger to the community who showed no remorse, a Northampton County judge handed down a state prison sentence Friday to a Nazareth man who had child pornography and sent inappropriate text messages to a 12-year-old girl in which he said he wanted to make her feel "warm and cozy."

Christopher M. Rothrock, 46, was sentenced to 21 months to 7 years in prison by county Judge Stephen Baratta. In handing down his sentence, Baratta said he would be "afraid for the community" unless Rothrock served time in state prison.

Rothrock was reported to police in 2011 by the girl's parents.  Police said they found 25 texts from Rothrock to the girl, saying he wanted to massage her and asking for photos of her exposed stomach, court records state. Police said they also found thousands of child pornography images on Rothrock's computer.

In September, Rothrock pleaded guilty to five counts of possessing child pornography and one count of criminal solicitation for the text messages he sent to the girl. Northampton County Assistant District Attorney Patricia Broscius testified Friday that the victim and her mother are "extremely hurt, extremely angry" by Rothrock's actions. "The bottom line is he's dangerous and he needs intensive treatment," Broscius said. "He had no remorse, no insight, no empathy for what happened."

In a pre-sentence report read aloud Friday by Baratta, Rothrock said he had been viewing child pornography for 20 years and didn't believe it was a crime unless he was selling or distributing the images. He also told authorities he didn't believe pornographic images of children over the age 10 were considered child pornography.  Baratta noted that Rothrock stopped going to sex offender treatments after Rothrock said he could no longer afford to pay for therapy.

Though not perfectly clear from this story, it appears that the defendant here (1) may have already had a conviction of some sort that got him into sex offender treatment, and (2) had sent numerous sexual texts to a 12-year-old, and (3) had a massive and long-standing collection of child pornography.  Add up these facts in the federal system, and the defendant here would likely be looking at decades in the federal prison system.  But in state court this guy, deemed by the sentencing judge as dangerous and with no remorse, could be free in less than two years.

My understanding is that state and federal investigative authorities and prosecutors are ultimately the persons who decide whether and when a case will be brought in federal or state court when both jurisdictions have authority.  But, as highlighted by this story (and so many others in this area), the sentencing consequences of child porn crimes will often depend a lot more on this (hidden and unreviewable) state/federal prosecutorial decision than any other facts or factors.

December 7, 2012 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

December 6, 2012

New report on feds' on-going debate over response to pot legalization

The New York Times has this notable new article reporting on the debate within the Obama Administration concerning how to respond to pot legalization in Colorado and Washington.   The piece is headlined "Administration Weighs Legal Action Against States That Legalized Marijuana Use," and here are excerpts:

Senior White House and Justice Department officials are considering plans for legal action against Colorado and Washington that could undermine voter-approved initiatives to legalize the recreational use of marijuana in those states, according to several people familiar with the deliberations. 

Even as marijuana legalization supporters are celebrating their victories in the two states, the Obama administration has been holding high-level meetings since the election to debate the response of federal law enforcement agencies to the decriminalization efforts.

Marijuana use in both states continues to be illegal under the federal Controlled Substances Act.  One option is to sue the states on the grounds that any effort to regulate marijuana is pre-empted by federal law.  Should the Justice Department prevail, it would raise the possibility of striking down the entire initiatives on the theory that voters would not have approved legalizing the drug without tight regulations and licensing similar to controls on hard alcohol.

Some law enforcement officials, alarmed at the prospect that marijuana users in both states could get used to flouting federal law openly, are said to be pushing for a stern response.  But such a response would raise political complications for President Obama because marijuana legalization is popular among liberal Democrats who just turned out to re-elect him....

Federal officials spoke on condition of anonymity because they were not authorized to discuss the matter.  Several cautioned that the issue had raised complex legal and policy considerations — including enforcement priorities, litigation strategy and the impact of international antidrug treaties — that remain unresolved, and that no decision was imminent.

The Obama administration declined to comment on the deliberations, but pointed to a statement the Justice Department issued on Wednesday — the day before the initiative took effect in Washington — in the name of the United States attorney in Seattle, Jenny A. Durkan. She warned Washington residents that the drug remained illegal....

One option is for federal prosecutors to bring some cases against low-level marijuana users of the sort they until now have rarely bothered with, waiting for a defendant to make a motion to dismiss the case because the drug is now legal in that state.  The department could then obtain a court ruling that federal law trumps the state one.

A more aggressive option is for the Justice Department to file lawsuits against the states to prevent them from setting up systems to regulate and tax marijuana, as the initiatives contemplated. If a court agrees that such regulations are pre-empted by federal ones, it will open the door to a broader ruling about whether the regulatory provisions can be “severed” from those eliminating state prohibitions — or whether the entire initiatives must be struck down.

Another potential avenue would be to cut off federal grants to the states unless their legislatures restored antimarijuana laws, said Gregory Katsas, who led the civil division of the Justice Department during the George W. Bush administration.  Mr. Katsas said he was skeptical that a pre-emption lawsuit would succeed.  He said he was also skeptical that it was necessary, since the federal government could prosecute marijuana cases in those states regardless of whether the states regulated the drug.

December 6, 2012 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (28) | TrackBack

Ohio bill to require consideration of military service at sentencing

As reported in this local news piece, which is headlined "Judges to consider veteran experiences before sentencing," my own state of Ohio appears poised to enact a notable (and novel?) bill to require consideration of military service at all sentencings.  Here are the details:

Before sentencing, veterans who commit a crime may soon be given consideration by a judge for their military service. The goal is rehabilitation instead of incarceration.

A bill unanimously passed by the Ohio Senate would require a court to consider a person's military service as well as their emotional, mental and physical condition before being sentenced for a crime.

The legislation proposed by Senator Joe Schiavoni would apply to both misdemeanor and felony charges. "They have been through things that most of us haven't," Schiavoni said. "It's so, so important we consider that before they get thrown into jail and their problems aren't handled properly." Schiavoni says the bill has bipartisan support from both legislators and judges.

Youngstown Municipal Judge Robert Milich supports the bill. He says judges shouldn't only consider what role a veteran's experiences overseas may have played in the crime, but how that experience could better their odds of rebuilding and becoming a productive part of society. "As soon as you start getting them to talk about their military experience, which I do, you can see they stand a little taller because it was a time when they did something they were proud of, they were respected, they controlled resources, and people," said Judge Milich. "This brings it back, gives them something to build on, and you don't find that in a lot of the defendants."

The bill will now go to the Ohio House of Representatives, where it is expected to be voted on before the end of the lame duck session. 

The text of this bill is available at this link, with the provisions setting forth the change in Ohio's sentencing law underlined.  Here is one version of the key language in the bill requiring consideration of military service at sentencing:

(F) The sentencing court shall consider the offender's military service record and whether the offender has an emotional, mental, or physical condition that is traceable to the offender's service in the armed forces of the United States and that was a contributing factor in the offender's commission of the offense or offenses.

Hard-core federal federal sentencing fans know that, effective November 2010, section 5H1.11 of the federal sentencing guidelines was amended to change a policy statement that  previously deemed military service "not ordinarily relevant" to a departure.  The current version of these guidelines now say military service "may be relevant in determining whether a departure is warranted," but the proposed change to Ohio law goes further by requiring consideration of military service.

I am aware that North Carolina statutorily provides that having "been honorably discharged from the United States armed services" is a mitigating factor at sentencing, see N.C. Gen. Stat. § 15a-1340.16(e)(14), but this new Ohio law also goes further because it demands a broader consideration of factors and does not demand an honorable discharge.  Thus, I am pretty sure if and when this Ohio bill becomes law it will be breaking some new and valuable sentencing ground.

December 6, 2012 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (8) | TrackBack

NYCLU sues New York over solitary confinement practices

As reported in this Reuters piece, "New York's largest civil liberties group filed a federal lawsuit Thursday against state corrections officials on behalf of a convicted rapist who spent 26 months in solitary confinement after a non-violent offense in his cell."  Here is more:

The lawsuit is the latest challenge to standards by which some 80,000 inmates a day are confined up to 23 hours a day in isolation or with another inmate inside cells as small as a parking spot.

Critics claim solitary confinement is a form of torture that inflicts lasting psychological damage and is meted out in many states too arbitrarily and, increasingly, too often....

The lawsuit, filed by the New York Civil Liberties Union in federal court in Manhattan, asserts Leroy Peoples was placed in solitary confinement for nearly 26 months after jail guards discovered forged legal documents in his cell....

"New York's prison authorities permit the use extreme isolation ... as a disciplinary tool of first resort for violating almost any prison rule, no matter how minor," NYCLU Executive Director Donna Lieberman said in a statement.

Between 2007 and 2011, New York State prison officials segregated inmates 302 times for "smoking in an undesignated area," 135 times for "wasting food," 114 times for "littering" and 234 times for "untidy cell or person," according to a recent NYCLU study of state prison segregation records....

In October, state corrections commissioner Brian Fischer responded to the NYCLU study. "As a society removes those individuals who commit crimes, so too must we remove from general population inmates who violate the Department's code of conduct and who threaten the safety and security of our facilities," Fischer said in a statement, which did not address non-violent offenses. "The possession of drugs, cell phones and weapons pose a serious threat within this ... system."

There were 563 assaults on staff and 666 inmate assaults on other inmates last year, out of a population of about 56,000, state corrections records show.

The NYCLU has this press release about its lawsuit, and the full 29-page complaint can be accessed at this link. In addition, the NYCDL's October 2012 report on New York's use of solitary confinement is available via this link.

December 6, 2012 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

"U.S. Attorney Jim Letten resigns amid online commenting scandal in his office"

The title of this post is the headline of this notable federal criminal justice story out of New Orleans.  Here are the highlights:

Amid a metastasizing scandal in his office, U.S. Attorney Jim Letten announced his resignation at a news conference Thursday morning, ending an 11-year run in the post.  He was the nation's longest-serving U.S. Attorney, having been kept in the job by President Barack Obama despite his Republican Party affiliation.

Letten said his resignation would be effective Tuesday, but that he would stay on briefly -- not as head of the office -- to aid in the transition.  He delivered an emotional, 10-minute speech in which he spoke of his pride in having served for more than a decade as the region's top federal law enforcement officer....

Dana Boente, First Assistant U.S. Attorney for the Eastern District of Virginia, will serve as Letten's interim replacement, the Justice Department announced in a release issued shortly after Letten's news conference.  Boente has been a federal prosecutor for 28 years, according to the release.   The news release also said that John Horn, First Assistant U.S. Attorney for the Northern District of Georgia, will investigate leaks and other matters in the Danziger Bridge case, a probe that U.S. District Judge Kurt Engelhardt requested in a tartly worded Nov. 26 order.

The series of moves comes eight months into a scandal revolving around anonymous online commenting by high-ranking prosecutors in his office, including the shocking revelation that Letten's longtime First Assistant, Jan Mann, was involved.

The troubles for Letten began in March, when landfill owner Fred Heebe -- the target of a sprawling federal probe -- filed a civil lawsuit alleging that prosecutor Sal Perricone had been using an online alias to savage him and other federal targets in comments posted at NOLA.com.

Perricone, the office's senior litigation counsel and a member of Letten's inner circle, quickly admitted his sins and resigned.  The matter was referred to the Justice Department's Office of Professional Responsibility for investigation, and the scandal seemed to die down.  In an interview with New Orleans magazine published in August, Perricone insisted the commenting brouhaha started and ended with him, saying no one else in the office had been aware of his activities.

But last month, the scandal reignited with a vengeance, when Heebe filed a second defamation suit, this one claiming Mann had been commenting about federal targets and judges as "eweman" on NOLA.com.  Many of the comments by "eweman" were adjacent to comments made by Perricone under one of his online aliases, suggesting a coordinated campaign.

Mann soon admitted she had commented online at NOLA.com, but did not cop to a specific alias.  Letten, meanwhile, announced that she was being demoted from her ranking posts of First Assistant U.S. Attorney and chief of the office's criminal division. Mann did not step down, however, and the problems for Letten's office continued to mount.  Engelhardt -- who had asked for a full investigation into leaks in the Danziger Bridge case earlier this year -- issued a stinging order in late November in which he essentially accused Mann and Perricone of untruthfulness....

Ironically, Heebe -- the architect of Letten's downfall -- had been a leading candidate for the U.S. Attorney post after George W. Bush was elected president in 2000.  But his nomination foundered amid allegations of domestic abuse, and Letten, who had been the acting U.S. Attorney, ended up getting a presidential appointment.  Years later, Heebe would become a target of the office.

I cannot help but react to this story by wanting to remind all my students (not to mention all others) that one should be extra sure to think twice (and then a couple more times) about any comments being made online if and whenever one needs a pseudonym to be willing to make such comments.

December 6, 2012 in Who Sentences? | Permalink | Comments (2) | TrackBack

Fourth Circuit rejects feds' effort to commit "sexually dangerous person" under AWA

The Fourth Circuit has a notable sex offender civil committment ruling today in US v. Caporale, No. 12-6832 (4th Cir. Dec. 6, 2012) (available here).  Here is how it gets started:

The government appeals the judgment of the district court directing that Patrick Caporale be freed from the custody of the Bureau of Prisons and granted supervised release. Caporale finished serving his prison sentence for child molestation in 2008, but he has remained incarcerated while the government seeks to have him declared a "sexually dangerous person" pursuant to the civil-commitment provisions of the Adam Walsh Child Protection and Safety Act of 2006 (the "Walsh Act"), Pub. L. No. 109-248, 120 Stat. 587, as specifically set forth in 18 U.S.C. § 4248.

A sexually dangerous person under the Walsh Act means one "who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others." 18 U.S.C. § 4247(a)(5).  A person is sexually dangerous to others insofar as he or she "suffers from a serious mental illness, abnormality, or disorder," and, as a result, "would have serious difficulty in refraining from sexually violent conduct or child molestation if released." Id. § 4247(a)(6).  The parties have never disputed that, as evidenced by his several convictions, discussed infra, Caporale satisfies the first, prior-conduct element of § 4247(a)(5) by having engaged in child molestation.

Following an evidentiary hearing whose scope was thereby limited to the second element of § 4247(a)(5), the district court ruled that, as a matter of law, the government had not proved that Caporale suffers from a serious mental illness, abnormality, or disorder.  The court perceived in the alternative that even if Caporale were so afflicted, his commitment was not required because the government had also failed to sufficiently show that Caporale will experience serious difficulty in refraining from sexually violent conduct or child molestation if released.

We conclude that, contrary to the district court’s legal determination and as established by the evidence, Caporale indeed suffers from a qualifying mental impairment. We nevertheless affirm the judgment below, discerning no clear error in the court’s alternative rationale that the government fell short of carrying its burden to demonstrate a relative likelihood that Caporale will reoffend.

December 6, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

High costs for taxpayers for high-profile capital resentencing effort

This New York Daily News piece, headlined "Re-sentencing cop killer Ronell Wilson could push Brooklyn federal court over fiscal cliff," provides an interesting accounting of the costs to taxpayers from a high-profile capital case.  Here are excerpts:

Re-sentencing gangster Ronell Wilson for killing two NYPD detectives could push Brooklyn federal court over the fiscal cliff.  Taxpayers have shelled out nearly $1 million to cover defense lawyers and expert witnesses since the Bloods thug's death sentence was reversed by the U.S. Court of Appeals in February 2011.

The $965,000 tab is expected to grow by several hundred thousand dollars because invoices have not been submitted for a hearing that ended Thursday to determine whether Wilson is mentally disabled, the Daily News has learned.

Six shrinks, whose travel and lodgings were paid for by the government, testified for Wilson.  "The amount of money being spent is crazy," said a source close to the case.

Brooklyn Federal Judge Nicholas Garaufis is signing checks to cover defense costs, while the prosecutors' costs are picked up by the U.S. Justice Department.  The psychiatric experts charge roughly $250 to $350 per hour for court work, sources said.  A spokesman for Brooklyn U.S. Attorney Loretta Lynch declined to comment on the expenditures.

Dr. George Woods, a forensic psychiatrist, was asked about his fee during cross-examination by Assistant U.S. Attorney James McGovern.  "I don't mean to embarrass you, but how much are you getting paid," McGovern asked.  Woods replied he had already received $59,000 and expected to pocket an additional $68,000....

Wilson was sentenced to death by lethal injection by a Brooklyn jury for the execution-style killings of hero undercovers Rodney Andrews and James Nemorin.  The sentence was overturned due to prosecutorial error and sent back for re-sentencing.

Recent related post:

December 6, 2012 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

December 5, 2012

Many notable marijuana reform headlines from many states

It is all but impossible to keep up with all the pot policy news in all the states these days, so I will let a few headlines with links serve as a mini-summary of some recent developments from a few states:

Arizona: "Arizona Judge Upholds Voter-Approved Medical Marijuana Act"

Colorado: "30 day countdown to legal pot in Colorado"

Massachusetts: "Salem city council discusses zoning of marijuana dispensaries"

New Jersey: "First N.J. medical marijuana facility to open Thursday in Montclair"

New York: "Ithaca mayor calls for marijuana legalization"

Oregon: "Oregon's top federal prosecutor addresses medical marijuana panel for first time"

Washington: "Lighting up tonight: Marijuana law questions linger"

December 5, 2012 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (2) | TrackBack

Seventh Circuit rejects extending Southern Union to restitution based on (minority) view it is not a criminal penalty

The Seventh Circuit handed down a panel opinion today in US v. Wolfe, No. 11-3281 (7th Cir. 2012) (available here), which concludes with a lengthy discussion of whether Sixth Amendment rights recognized in Apprendi and applied to fines in Southern Union apply to restitution awards.  Here is the heart of the ruling (with most cited removed):

The district court imposed a restitution order totaling $3,028,011.29.  Wolfe challenges this amount on the ground that it was not supported by the jury’s factual findings, a violation of the Sixth Amendment under Apprendi v. New Jersey, 530 U.S. 466 (2000). Specifically, he contends that the recent Supreme Court decision in Southern Union Co. v. United States, ___ U.S. ___, 132 S. Ct. 2344 (2012), first, requires us to overturn our longstanding jurisprudence that restitution is not a criminal penalty, and second, mandates that all restitution amounts be supported by the jury’s verdict....

Wolfe argues that his restitution order is similar to the criminal fine in Southern Union because the order is a “lifelong payment burden.”  Yet, the only way Southern Union may affect the outcome of this case is if we first conclude restitution is a criminal penalty. (If so, the issue becomes whether Southern Union’s holding that Apprendi applies to criminal fines should extend to another type of criminal penalty: restitution.)  Reaching such a conclusion, however, would be in direct opposition to this Circuit’s well-established precedent that restitution is not a criminal penalty....

Having examined our sister circuits who have addressed whether restitution is civil or criminal in nature, we find ourselves in the minority.  Only the Eighth and Tenth Circuits, like us, have found restitution to be civil in nature....

But a “compelling reason” is required to overrule our Circuit’s precedent.  Being in the minority is not enough. This is true even if the trend is against us.... Wolfe’s only other arguments as to why we should treat restitution as a criminal penalty are that the Supreme Court referred to restitution as a “criminal punishment” in Pasquantino v. United States, 544 U.S. 349, 365 (2005), the restitution order is a “significant infringement on [his] freedom,” and Apprendi should be “extended broadly.”

We have already rejected the Pasquantino argument, so that argument is unavailing.   Likewise, whether a court judgment infringes upon someone’s life does not make the judgment inherently criminal....  And the degree to which Apprendi is extended
has little value when answering the initial question before us: whether restitution is a criminal penalty.  As we stated, Southern Union and the scope of Apprendi only come into consideration if we first conclude restitution is a criminal penalty. We decline to reach such a conclusion.

Wolfe has not provided us with a compelling reason as to why the holding in Southern Union — or this case in general — should be used as the vehicle to overturn our long-standing Circuit precedent that restitution is not a criminal penalty.  The district court’s restitution order was not required to be supported by the jury’s fact-finding, and therefore, it did not violate Wolfe’s Sixth Amendment rights.

December 5, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Frustrating (and telling) myopia concerning criminal justice among SCOTUS elite

At SCOTUSblog, Tom Goldstein has this new and notable post about the gay marriage cases before the Supreme Court titled simply "Testing."  I always respect Tom's work and perspective on SCOTUS, but this post has a flourish concerning the conservative leanings of the court Supreme Court that reflects what I see as a persistent and problematic myopia concerning criminal justice issues now reflected in the view of many (if not most) of the elites who follow and discussion the work of the Roberts court.  Here is the passage that got under my skin (with one particular sentence emphasized by me):

The dilemma for gay rights advocates is that these test cases may be too much, too soon. Too much because Justice Kennedy -- the decisive vote -- is a conservative on a conservative Court, and many conservatives view heterosexual marriage as foundational.

Too soon because while our culture has rocketed ahead to acceptance of gay marriage, the Court generally rides a horse and buggy.  Often, that is just what we want: a Court that does not get pulled along by the tides of the moment.

To the political center and left, and to libertarians, the answer in these cases is now pretty obvious.  The Justices, on the other hand, are tradition bound, distant from the media, and insulated from cultural and political winds.  They may need more time before they understand this “new normal.”

To be clear: a Supreme Court decision recognizing the right of same-sex couples to marry is inevitable. Someday. But in twenty years, the Court will be different. It will have caught up with the country. But a majority may not be there yet.

Instead, these cases are a bolt from the blue.  Five years ago, serious people did not think these claims could be won before these Justices.  The notion that discrimination against homosexuals in marriage is unconstitutional is not “baked in” to our legal culture.

Without the time to adapt, this Court is unpredictable.  Take Bush v. Gore and Obamacare.  The constitutional claims in both cases were generally regarded as ridiculous. But the cases raced ahead to the Court.  And both claims won, with only the Chief Justice saving the health care statute.

That is why other historic test cases like Brown v. Board of Education are so different.  The NAACP controlled race discrimination litigation.  It built a body of lower court and Supreme Court decisions over years.  The Court had time to adapt before it had to decide.

And of course, Brown was decided by a very different Court.  You cannot point to many liberal test cases that won in recent decades.  Conservatives have won on guns and affirmative action; they lost on property rights.  But for pretty good reasons, the left does not even try.  Progressive groups spend all their energy keeping cases away from this Court.

Actually, with my focus on just trial and sentencing criminal justice issues (leaving out police practice cases and other kinds of cases that have a more mixed record), I can point to well over a dozen of what could (and probably should) be called "liberal test cases that won" in just the last decade.  Here is a partial list just off the top of my head that could surely be supplemented:

Crawford (2004)

Blakely (2004)

Booker (2005)

Roper (2005)

Cunningham (2006)

Kimbrough/Gall (2007)

Kennedy (2008)

Melendez-Diaz (2009)

Padilla (2010)

Graham (2010)

Skilling/Black (2010)

Pepper (2011)

Plata (2011)

Lafler/Frye (2012)

Miller (2012)

Notably, in most of these cases, more "conservative" lower federal and state courts were generally unwilling to recognize or extended a defendant-protecting doctrine, and the Supreme Court took up the case in order to rule (often boldly) on behalf of a criminal defendant.  And, "for pretty good reasons," the criminal defense bar is persistently trying to get the Supreme Court to take up more cases and many progressive criminal justuce groups spend considerable energy keeping the Court busy with criminal justice cases.

I am a bit frustrated that Tom Goldstein does not in this context acknowledge that the Supreme Court right now is, in fact, acting in quite progressive ways on behalf of criminal defendants (which is, of course, one huge way in which the Warren Court established its liberal reputation).  But the myopia in his recent post strikes me as symptomatic of a broader failing among SCOTUS elites and (too) many progressive elites who fail to focus upon or even recognize the extensive harms being done to various vulnerable populations through modern mass criminal justice systems.

December 5, 2012 in Who Sentences? | Permalink | Comments (12) | TrackBack

"Pot Legalization Support At Record High, Poll Finds"

The title of this post is the headline of this report from The Huffington Post.  Here are excerpts, which includes links to the reported poll data:

National support for legalizing marijuana is at a record high, according to a poll sponsored by the pro-legalization Marijuana Policy Project.

Fifty-eight percent of voters said the use of marijuana should be made legal, while 39 percent said it should be illegal, the poll, conducted by the Democratic firm PPP, found.

Support was highest among Democrats -- 68 percent of whom favored legalization -- compared to 42 percent of Republicans and 59 percent of independents.  An age gap was also in evidence, with 61 percent of voters under 30 supporting legal marijuana use, compared to 48 percent of those over 65.

A CBS poll released last week found less than a majority in support, with 47 percent saying marijuana should be legalized. That survey also reflected a shift, however, marking the first time that support for legalization outstripped opposition.

The difference in results could be partially because PPP's surveys use automated phone calls, while many other polls use live interviewers. An MPP press release suggested that voters might be uncomfortable telling an interviewer they support legalization....

PPP found that half of voters thought marijuana would be legalized nationally within the next 10 years, while 37 percent predicted it would remain illegal.The poll surveyed 1,325 registered voters using automated phone calls between Nov. 30 and Dec. 2.

December 5, 2012 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (6) | TrackBack

December 4, 2012

Terrific symposium in latest issue of the Journal of Legal Education

Though I always enjoy reading the Journal of Legal Education, I was especially excited to see that JLE's November 2012 issue starts with a symposium titled "Teaching Mass Incarceration." Here is a summary from the JLE's introduction of the pieces in the symposium (with links inserted):

The issue begins with a Symposium on “Teaching Mass Incarceration,” a subject that has received considerable attention from activists and some from mainstream media but is remarkably absent from the law school curriculum.  Giovanna Shay opens with a case study of “Inside-Out as Law School Pedagogy,” a teaching vehicle for bringing prison inmates and law students into one course, building student engagement and inspiring open-minded discussion that forces students to move beyond knee-jerk politics and clichés [available here].  The second article in the Symposium, by Sharon Dolovich, makes a powerful case for teaching the “law governing prisons,” the “back-end” of the criminal justice system and the law applicable to 2.3 million Americans, of whom a huge disproportion are African-Americans — arguably a front line in civil rights advocacy today [available here]. The third article, by Teresa A. Miller, entitled “Encountering Attica,” explores documentary film-making to transform the dialogue of the “inside-out class” into a vehicle for reaching much larger audiences [available here].  Readers of these contributions will be hard-pressed to deny the case for more visibility and engagement with mass incarceration and the means to accomplish those goals.

I thoroughly enjoyed and learned much from all three of these articles, and I encourage even those not in the ivory tower to check them out.

December 4, 2012 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Seventh Circuit rejects claims that district judge should reject new 18:1 guideline crack ratio

The Seventh Circuit handed down an interesting decision today in US v. Matthews, No. 11-3121 (7th Cir. Dec. 4, 2012) (available here), in response to a defendant's claim that he should be sentenced based on a 1:1 powder/crack cocaine ratio rather than the 18:1 ratio now reflected in the revised sentencing guidelined. Here is a key section of the start of the panel's discussion in Matthews:

On appeal Matthews challenges two aspects of his sentence. First, he argues that the district court committed procedural error by treating the 18:1 crack-topowder sentencing ratio in the guidelines as binding. Second, he claims that the court’s decision to adhere to that ratio created unwarranted sentence disparities because other judges in the same district used a 1:1 ratio in like cases. See 18 U.S.C. § 3553(a)(6) (instructing district courts to consider whether a sentence results in “unwarranted sentence disparities”).

We reject these arguments and affirm. The district court commented on the drug-quantity ratio in direct response to Matthews’s argument that the court should follow the lead of other judges in the district and impose a belowguidelines sentence based on a 1:1 crack-to-powder ratio. The judge declined to do so, deferring instead to the 18:1 policy adopted in the Fair Sentencing Act of 2010 and the corresponding amendments to the guidelines. Although the judge adopted a highly deferential stance toward the judgment of Congress and the Sentencing Commission, there is no indication that he misunderstood his discretion to use a different ratio. Matthews’s argument to the contrary is implausible this far removed from United States v. Booker, 543 U.S. 220 (2005), Kimbrough v. United States, 552 U.S. 85, 109 (2007), and Spears v. United States, 555 U.S. 261 (2009). Moreover, the judge’s decision to adhere to the ratio endorsed by Congress and the Commission does not make the resulting withinguidelines sentence unreasonable merely because other judges in the district exercised their discretion to use a different ratio. A sentence disparity that results from another judge’s policy disagreement with the guidelines is not “unwarranted” under § 3553(a)(6).

December 4, 2012 in Booker in the Circuits, Drug Offense Sentencing, Kimbrough reasonableness case, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

"The Victims' Rights Amendment: A Sympathetic, Clause-by-Clause Analysis"

The title of this post is the title of this new paper by Paul Cassell available via SSRN.  Here is the abstract:

My goal in this article is to provide a clause-by-clause analysis of the current version of the Victims’ Rights Amendment, explaining how it would operate in practice.  In doing so, it is possible to draw upon an ever-expanding body of case law from the federal and state courts interpreting state victims’ enactments.  The fact that these enactments have been put in place without significant interpretational issues in the criminal justice systems to which they apply suggests that a federal amendment could likewise be smoothly implemented.

Part II of this article briefly reviews the path leading up to the current version of the Victims’ Rights Amendment.  Part III then reviews the version clause-by-clause, explaining how the provisions would operate in light of interpretations of similar language in the federal and state provisions.  Part IV draws some brief conclusions about the project of enacting a federal constitutional amendment protecting crime victims’ rights.

December 4, 2012 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Should high-profile prosecutor have a high-profile social media presence?

The question in the title of this post is prompted by this St. Louis Post-Dispatch article. The piece is headlined "Tweeting the law: St. Louis prosecutor gets praise and criticism," and here are excerpts:

She delivered her first tweet with gusto. “I know I’m getting to this party 5 years late but Hello Twitterverse!” Circuit Attorney Jennifer Joyce announced in a March 23, 2011, post, adding a #JMJ stamp to make it official.  From there, the St. Louis prosecutor — who until then preferred sticking to the confines of the courthouse — developed a loud and unabashed presence on the social networking site.

With daily, sometimes rapid-fire online messages, Joyce began announcing charges and sentences.  She expanded to Facebook, telling the stories of crime victims and neighborhood action.  She eschewed traditional news releases in favor of teasers linked to court documents on her website.  She rallied citizens and threatened criminals.

“Bad guys take heed: Lafayette Park folks WILL catch you & they WILL go to court to get your bond raised. Saw this today!” she tweeted in June 2011.  And in January: “Carl Barnes & David Townes came to City to steal dumpsters. Both now charged with felony stealing. Stay out of our town! #WELOVESTL.” 

At last check, Joyce had tweeted 2,557 times to 1,628 followers, and 917 people had subscribed to her office’s Facebook page.... [E]ven in the age of online everything, it is less common to see a prosecutor so prolific on these sites, and mixing personal with professional.

While Joyce has been praised for engaging the community, her musings — particularly the tone of them — have raised eyebrows in the buttoned-down legal community, where lawyers’ comments are bound by strict limits to protect the rights of the accused.  Twice this year, Joyce’s courtroom opponents have complained to judges in formal motions that she crossed the line....

On her Twitter page, Joyce juxtaposes case information with shout-outs to her husband and cheers and jeers on Notre Dame game days.  After reaching the 1,000-follower mark, she tweeted about a cupcake giveaway.  She praises police and neighborhood groups who show up to court. “It is very powerful in informing and engaging citizens to get involved in public safety issues in their community,” she explained.

Her message to criminals is pointed: Shape up or ship out.  “Stanley Bailey assaulted an 80 yr old lady & stole her purse,” she tweeted on Oct. 25.  “He now has 20 yrs to ask himself why he’s a jerk.”  In another: “Don’t threaten police with a weapon, unless you want to be shot AND charged with a felony (unlawful use of a weapon), like Carl Evans was today.”

The Facebook page, a collaboration of Joyce and her staff, has narratives of closed cases, crime-fighting tips and profiles of police and court players.  Those narratives are often dramatic, with talk of “bad guys” and the innocent victims they prey upon.  In one poignant exchange, she explained to the family of a traffic fatality why she could not file a manslaughter charge....

Joyce is not the only top prosecutor who tweets or finds friends on Facebook.  Charles Hynes, district attorney from Brooklyn, N.Y., and Craig Watkins, his Dallas counterpoint, are among many with a more neutral tone, offering posts that function as mini news releases about events and appearances.  They rarely talk about specific cases.

One exception is Ray Larson, district attorney in Lexington, Ky. Joyce has said on her Twitter page: “If you like tweeting prosecutors, you’ll love @raytheda. Much spicier than me!”  Larson displays a Superman-like emblem and likes to comment about “thugs, hoodlums and outlaws.”

Michael Downey, a lawyer specializing in ethics at the Armstrong Teasdale firm in St. Louis, said everyone should beware of the basic hazards of social media: It’s easy to be impulsive, the message reaches a broad audience and the words linger to haunt the writer later.  Beyond that, Downey emphasized, lawyers — especially prosecutors — have a special obligation not to publish something that might influence a jury and deprive a defendant of a fair verdict. “It’s a huge potential problem,” he said, and one that pops up increasingly. Ethics violations could lead to reprimand, suspension, or in more serious cases, disbarment....

Mary Fox, head of the public defender’s office here, complained in a court motion after prosecutors opposed a gag order in the Ronald Little rape case.  Fox said Joyce’s tweeting, in general, had created “a heightened public condemnation of the accused.” That wording reflects a Missouri ethics rule on pretrial publicity.  Fox wanted to prevent any tweets about Little’s case.  The motion never received a ruling.

In June, an assistant public defender asked a judge to dismiss rape charges against his client, David Polk, after Joyce tweeted about it on the eve of trial.  Joyce continued to tweet through jury deliberations, noting that she could never defend a child rapist.  The judge denied the motion, but did question jurors extensively about whether they had seen the tweets, according to Fox....

Joyce said she is careful not to include her opinions on active cases, speaking only to what is in the public record.  The ethics rule is posted on her website, and her Facebook page reminds that defendants are innocent until proven guilty.  She noted no ethics complaints have been filed against her.  “I’m an elected official and I’m put in this position by the people of St. Louis, and I think they have an expectation that I’m going to inform them of what’s going on,” Joyce said. “To suggest I don’t have the right to speak to my bosses — the citizens of the city of St. Louis — is kind of crazy.”

December 4, 2012 in On blogging, Web/Tech, Who Sentences? | Permalink | Comments (2) | TrackBack

Nails does not get nailed at federal sentencing for bankruptcy fraud

Serious baseball fans my age likely still have the 1986 playoffs deeply etched in their memories even a quarter century later.  (In my case, it helps that I was in Shea Stadium for Game 6 of the 1986 World Series.)  Consequently, the federal sentencing of a member of the 86 Mets has an extra bit of salience.  But, as this Los Angeles Times article highlights, the player nicknamed Nails during his playing days now should be more grateful for Booker than for Buckner.  Here are the reasons why:

Already serving a three-year state prison sentence for auto theft, former New York Mets star Lenny Dykstra was sentenced to an additional 6.5 months on Monday for federal bankruptcy fraud.

Dykstra, who helped the Mets win the 1986 World Series, had pleaded guilty to looting his mansion of valuables before creditors could liquidate them. The defendant, who reportedly scuffled with Los Angeles County sheriff's deputies in April, has racked up numerous criminal charges since his financial empire began to crumble in 2009.

On Monday, U.S. District Judge Dean Pregerson ordered Dykstra to pay $200,000 in restitution and to perform 500 hours of community service in addition to prison time. The 6.5-month sentence was far lighter than the 30 months federal prosecutors had sought....

According to federal prosecutors, Dykstra sold sports memorabilia and household items from his Ventura County mansion, including a $50,000 sink. Dykstra was barred from selling the items.

Nicknamed "Nails" by baseball fans for his aggressive play, the Garden Grove native turned to bankruptcy court in July 2009 to try to save his lavishly furnished Sherwood Country Club estate. He bought the property from hockey legend Wayne Gretzky for $18.5 million, at the height of the last housing boom.

An affidavit filed by FBI Special Agent Ty Thomas lays out how federal investigators allege that Dykstra "sold many items belonging to the bankruptcy estate" and "destroyed and hid other estate items, depriving the estate of a combined $400,000 of assets." Dykstra reportedly transferred dozens of items — including chandeliers, mirrors, artwork, a stove and a grandfather clock — to a consignment store, Uniques, on South Barrington Avenue in West Los Angeles. The owner of the store paid him cash for a U-Haul truckload of goods, according to the agent.

December 4, 2012 in Booker in district courts, Celebrity sentencings, Offense Characteristics | Permalink | Comments (1) | TrackBack

December 3, 2012

Early parole after two years' imprisonment for Oklahoma woman initially give 12 years for small pot sales

Regular readers may recall the story of Patricia Spottedcrow, first discussed in this post, who was initially sentenced to a dozen years in Oklahoma state prison for selling $31 in marijuana to a police informant in December 2009 and January 2010.  This recent story from the Tusla World, headlined "Patricia Spottedcrow paroled early in 12-year sentence for $31 bag of marijuana," explains how she is now out of prison:

The four reasons Patricia Spottedcrow most wanted out of prison were back in her arms Thursday afternoon, after their mother was released on parole. Her children are 11, 6, 5 and 3 years old now. The youngest was just 1 when Spottedcrow began her prison sentence two years ago.

If Gov. Mary Fallin hadn't approved Spottedcrow's parole and if the Pardon and Parole Board hadn't agreed to early consideration for her case, her children might have all been teenagers by the time she got out.

Spottedcrow was released from Hillside Community Corrections Center in Oklahoma City on Thursday morning after completing a community-level sentence required by the governor as a condition of her parole. Her 12-year prison sentence for selling $31 worth of marijuana garnered widespread national attention after her story was featured in a 2011 Tulsa World series on women in prison.

Spottedcrow originally faced a 12-year prison sentence out of Kingfisher County for selling a "dime bag" of marijuana to a police informant. She entered prison in December 2010 after spending a few months waiting in the county jail.

After her story was published in the World, grassroots supporters lobbied officials to reconsider Spottedcrow's punishment. Advocates expressed concern for possible racial bias, disparate sentences for drug crimes, Oklahoma's No. 1 female incarceration rate per capita and the effects on children growing up with incarcerated parents.

The specifics of this case are notable not only because of how extreme Spottedcrow's initial prison sentence appeared to be, but also because of how Oklahoma's preservation of parole in its sentencing system served as a kind of second-look safety valve so that this seemingly not-so-dangerous first-offender could be released without the state and others having to bear the considerable costs of an extreme extended term of imprisonment.

Prior posts on Spottedcrow's case:

December 3, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (14) | TrackBack