February 2, 2013
Should a US Attorney take pride in helping to "have produced the longest average prison sentences in the country"?The question in the title of this post is prompted by this interesting local article coming from Indiana which a kind reader sent my way today. The article is headlined "U.S. attorney plans additional efforts in 2013," and here are some excerpts which provide context for the query above:
Since his appointment to the job in late 2010, U.S. Attorney General for the Southern District of Indiana Joseph Hogsett has steadily grown the office’s footprint.
He has done so by refocusing on existing efforts like the U.S. Attorney Office’s anti-child exploitation campaign Project Safe Childhood, but also by expanding the office’s reach with a violent crime initiative and creation of an interagency group to find and prosecute corruption and white-collar crimes. “I plan to continue many of those priorities and hopefully add a few more in 2013,” he said. “I would like to see it continue to expand.”
With 60 counties in the district, Hogsett’s efforts affect nearly two-thirds of the state. The U.S. attorney’s office maintains offices in Indianapolis, Evansville, New Albany and Terre Haute — all of which are cities with federal courthouses.
In 2012, an additional full-time attorney was added to the Evansville office, as well as a part-time special deputy U.S. Attorney who also works part-time in the Vanderburgh County Prosecutor’s Office, and who serves as liaison between the two. In addition, Assistant U.S. Attorney Matt Brookman from the Evansville office was appointed to lead the district’s drug unit, supervising a team of attorneys both Evansville and Indianapolis.
Hogsett’s most recent effort has been the creation of a Civil Rights Task Force. The idea is to take a more active roll in investigating and pursuing legal actions on cases in which the civil rights of Indiana are endangered.
Hogsett said it will take a broad view of civil rights and include attorneys from the civil and criminal divisions of the office. “I am not talking just racial actions but also areas such as the Americans with Disabilities Act (ADA),” he said, adding he would like to make a difference in the areas of fair housing and fair lending.
He pointed to recent cases from his office that involved service animals being allowed in restaurants and an agreement with the Indianapolis Motor Speedway to comply with the ADA, as well as prosecuting multiple cases of intimidating acts based on race or ethnicity....
[H]e said pursuing civil rights violations will take more effort than other initiatives. “The others have largely depended on relationships with law enforcement. This Civil Rights Task Force is going to require us to do a lot of outreach to the community.”
Hogsett’s previous initiatives have brought measurable results. Prosecutions in the Southern District of Indiana have produced the longest average prison sentences in the country over the last two years, according to an annual report compiled by the office. Hogsett attributes much of the office’s success to cooperation with local prosecutors and law enforcement agencies.
The question in the title of this post emerges from the penultimate sentence above that I have highlighted. I do not mean to suggest an answer to the question, but I sense of the context of this laudatory press report that Mr. Hogsett and those within his office are (1) keeping close track of sentencing outcomes, and (2) seem to consider it an accomplishment worth noting to the press that recent prosecutions in Southern District of Indiana have resulted in the harshest average prison sentences over the last 24 months among all 90+ federal districts.
Having never been a federal prosecutor, I am not sure if it is unusual or common for a US Attorney's office to keep very close account of sentencing outcomes and to use those outcomes as a metric of importance in the work of that office. But I am sure I would not like to hear that US Attorneys and their assistants in other federal districts would be likely to react to this story by deciding they need to try to best Mr. Hogsett's efforts to produce the longest average federal prison sentences in the country. More broadly, I sure hope at both the federal and state levels that many more prosecutors look for decreases in local crime rates, rather than increases in the severity of sentencing outcomes, as the preferred metric for evaluating their accomplishments as prosecutors.
February 1, 2013
"When Crime Pays: Prison Can Teach Some To Be Better Criminals"The title of this post is the headline of this notable NPR story, which reports on some interesting research that reaffirms my gut feeling that, at least for certain types of offenders, sending some people to prison may ultimately increase, rather than decrease, future criminal activity. Here is an excerpt:
In popular lore — movies, books and blogs — criminals who go to prison don't come out reformed. They come out worse. Scientists who have attempted to empirically analyze this theory have reached mixed conclusions, with analyses suggesting that activities like drug addiction or gangs are what determines whether the correctional system actually gets criminals to correct their ways.
What else could be at work?
Donald T. Hutcherson II, a sociology professor at Ohio University in Lancaster, recently decided to tackle the question by mining the vast data in the U.S. government's National Longitudinal Survey of Youth. The survey conducts incredibly detailed and confidential interviews, and then repeats those interviews with the same people year after year — often going to extraordinary lengths to track down those who may have moved overseas or ended up in prison.
Included in the survey are questions about how much money individuals make legally and illegally. Because the survey also ascertains whether people have spent time in prison, Hutcherson pored through data from tens of thousands of queries to a large number of young people to establish whether illegal earnings went up or down after individuals served time.
If prison reformed criminals, illegal earnings once people were released ought to have gone down. But if prison was a "finishing school" for criminals, illegal earnings after serving time should have increased. "Spending time in prison leads to increased criminal earnings," Hutcherson says. "On average, a person can make roughly $11,000 more [illegally] from spending time in prison versus a person who does not spend time in prison."...
Because the study looks at averages, it's important to note that Hutcherson isn't saying that all criminals come out of prison primed to become bigger criminals. Lots of people, obviously, come out determined to lead law-abiding lives.
Hutcherson pointed to the role of social networks in all of our lives. In the legal economy, being connected to influential people — via networking — is widely seen as a way to get ahead on the ladder. The same phenomenon appeared to be at work in the illegal economy as well.
Interesting defense arguments for sentencing leniency in Amish beard-cutting caseAs reported in this local article, which is headlined "Sam Mullet lawyer asks for leniency in sentencing in Amish beard-cutting case," some of the first sentencing materials are being filed in an unusual and high-profile federal sentencing case here in Ohio. Here are some of the details:
Amish bishop Samuel Mullet could receive up to life in prison for orchestrating a series of violent beard-cutting attacks on his enemies, but his lawyer asked a federal judge Friday to treat the 67-year-old farmer far more leniently.
Defense attorney Edward Bryan recommended Mullet receive a prison sentence of 1-1/2 to two years, arguing that no one was kidnapped or hurt badly enough to warrant longer sentences.
Mullet and 15 of his family members and followers are scheduled to be sentenced next Friday in U.S. District Court in Cleveland. Reporters from across the country and from as far away as Europe are expected to document the international spectacle.
Although Mullet did not participate in the five hair- and beard-shearings in 2011, he was convicted of federal hate crimes for knowing about the assaults and failing to stop them from occurring. Witnesses likened the breakaway Amish sect to a cult that had turned its back on the religion's non-violent traditions.
To punish Mullet as if he were a mass-murderer would be unjust in light of the minimal harm the defendants caused their victims, Bryan said in a 35-page document submitted to U.S. District Judge Dan Aaron Polster. Bryan denied that Mullet recruited the participants, ordered the attacks, or helped to plan them. "The purpose of the beard and hair cuttings was a symbolic gesture, which at most caused an emotional or psychological response," Bryan wrote. "But no victim suffered serious physical injury in the incidents," describing the wounds as nicks and bruises.
Bryan asked the judge to consider the "invisible" collateral punishment leveled against Mullet and the 18 families who reside in the rural Jefferson County enclave of Bergholz, located about 100 miles from Cleveland.
Mullet and eight other men are in jail awaiting sentencing, causing multiple hardships for their families and 49 children, Bryan said. The self-sustaining community is struggling to meet daily needs of food, heat and child care, he said. The women are being forced to chop wood, feed and care for the livestock, as well as to cook, wash and clean.
Meanwhile, the Bergholz residents have been ostracized by the other Amish communities, he said. A sign advertising a Bergholz store was recently ripped from its post. And Bergholz members have been taunted at the Holmes County auctions, he said. "The stigma that will be forever attached to this community for convictions of hate crimes cannot be overstated," Bryan wrote.
Federal prosecutors have not yet presented their sentencing requests to Polster. The deadline for filing the documents is Tuesday.
"Medical marijuana grower gets 5 years in federal prison"The title of this post is the headline of this article from Montana concerning a high-profile federal sentencing case (which I have not recently blogged about because I ended up, for complicated reasons, meddling in a little part of the sentencing process). Here are the basics:
Medical marijuana grower Chris Williams was sentenced Friday to a mandatory five years on a federal gun charge, and time served on a marijuana charge. In sentencing Williams, U.S. District Court Judge Dana Christensen called him “a principled man, stubborn in his beliefs, [who] remains steadfast in his conviction that he has done nothing wrong.”
Williams was convicted in a September trial of four federal drug counts and four weapons counts in connection with his involvement in Montana Cannabis, a large medical marijuana grow operation with a greenhouse in Helena and operations around the state. It was one of scores of medical marijuana businesses around Montana that sprang up after voters legalized the medical use of cannabis in 2004. But marijuana remains illegal under federal law, and agents raided many of those businesses in March 2011. All the other people charged in connection with those raids made plea agreements with the government; Williams was the only one to insist upon a trial.
He could have faced mandatory minimum sentences totaling 85 years -- 80 of those on the firearms charges alone. “It was my belief that an 85-year sentence in this case would have been unjust,” Christensen said Friday in reviewing the history of the case. So he urged a settlement conference, presided over by U.S. District Judge Donald Molloy, in which the government agreed to drop all but one of the drug charges and one of the gun charges, in exchange for Williams’ promise not to appeal.
That obligated Christensen to sentence Williams only to five years on the gun charge (penalties would have increased for each addition weapons charge). In addition to the five years on the charge of possession of a firearm during a drug-trafficking offense, Christensen sentenced Williams to the 130 days he’s already served, on the charge of possession with intent to distribute marijuana. He also sentenced Williams to four years’ supervised probation on the drug charge, and five years on the gun charge, to run concurrently, and levied the standard $100 federal fee on each charge.
Many in the courtroom packed with Williams’ supporters -- and one pug service dog -- wept as the sentence was pronounced. “He has done nothing wrong,” said Karie Boiter of Seattle, who described herself as a “full-time supporter of Chris Williams.” She was among several medical marijuana advocates who traveled in a green school bus from California, picking up people along the way to Missoula, to attend Friday’s sentencing. The group held a brief protest outside the federal courthouse Friday morning....
Williams was taken immediately into custody Friday. Christensen recommended that he serve his time in the federal prison in Sheridan, Ore., so that he can be as close as possible to his 16-year-old son, a student at Montana State University.
Prior posts on Williams case and related prosecutions:
- Novel post-trial federal "sentencing settlement" for Montana medical marijuana provider
- Montana medicial marijuana activist gets (way-below-guideline?) probation sentence
- "Plead Guilty or Go to Prison for Life"
February 1, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing | Permalink | Comments (25) | TrackBack
Summary of key USSC findings in its big new Booker report
As explained here, unfortunately, wascally on-line wabbits have so far managed to allow only the first big part of US Sentencing Commission super-sized new Booker report to be available on-line only via this SL&P link. Fortunately, because others are primarily in charge of chasing down the annoying anonymous hackers (and because the NRA is primarily in charge of making sure all the rest of us have a right to use maximum firepower when hunting other forms of wabbits), I can spend my time trying to take stock of all the incredible effort and research reflected in the part of the new USSC Booker report now available for general consumption.
Though I am still just start to scratch the massive surface of the mass of information in just the first part of the new USSC Bookerreport, I can begin some assessment of what's in there by first praising the Commission for having a handy list of bolded "key findings" summarized in the first chapter. Here, in full text, are all the bolded key findings set out in the report's Overview chapter [with my own numbers added]:
 The number of federal offenders has substantially increased, and most federal offenders have continued to receive substantial sentences of imprisonment.
 The guidelines have remained the essential starting point for all federal sentences and have continued to influence sentences significantly.
 The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, has generally remained stable in drug trafficking, firearms, and immigration offenses, but has diminished in fraud and child pornography offenses.
 For most offense types, the rate of within range sentences has decreased while the rate of below range sentences (both government sponsored and non-government sponsored) has increased over time.
 The influence of the guidelines, as measured by the relationship between the average guideline minimum and the average sentence, and as measured by within range rates, has varied by circuit.
 The rates of non-government sponsored below range sentences have increased in most districts and the variation in such rates across districts for most offenses was greatest in the Gall period, indicating that sentencing outcomes increasingly depend upon the district in which the defendant is sentenced.
 For offenses in the aggregate, the average extent of the reduction for non-government sponsored below range sentences has been approximately 40 percent below the guideline minimum during all periods (amounting to average reductions of 17 to 21 months); however, the extent of the reduction has varied by offense type.
Prosecutorial practices have contributed to disparities in federal sentencing.
 Variation in the rates of non-government sponsored below range sentences among judges within the same district has increased in most districts since Booker, indicating that sentencing outcomes increasingly depend upon the judge to whom the case is assigned.
 Appellate review has not promoted uniformity in sentencing to the extent the Supreme Court anticipated in Booker.
 Demographic factors (such as race, gender, and citizenship) have been associated with sentence length at higher rates in the Gall period than in previous periods.
I do not think any of these key findings are especially surprising, though I suspect some (many?) will still prove to be somewhat controversial. Most fundamentally, I am certain that all of these findings could be "spun" in any number of ways in any number of settings. For example, I think one might reasonably wonder whether finding 8 concerning prosecutors contributing to disparties best explains finding 11 concerning increased demographic disparities. (Also, it is especially interesting to consider how one might spin findings 2 and 5 and 6 in the on-going Supreme Court litigation concerning the application of ex post facto doctrines in the post-Booker advisory guideline system.)
All these key findings should and likely will engender lots of discussion and debate in the weeks ahead. For now, though, I am eager to hear from readers about which particular finding they consider most important or least important (or, perhaps, least likely to get enough attention or most likely to get too much attention). As one who has long been concerned that federal sentencing severity and the overall growth in the total number federal defendants gets too little attention while disparity gets too much attention, I will assert that finding 1 above and the realities it reflects is really the most important big-picture take-away point. I have a feeling, though, that others may have distinct views.
Recent related post:
February 1, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack
January 31, 2013
"These 4 States Will Reform Their Marijuana Laws in 2013"The title of this post is the headline of this lengthy new article up at Reason.com. Here are excerpts from the start of the piece and its four state predictions:
It's been only two months since Washington and Colorado voters legalized recreational marijuana, but the advocates who raised millions to pass Amendment 64 and Initiative 502 aren't wasting time celebrating. In addition to helping craft the rules and regulations in the Centennial and Evergreen states, they're also providing support to state legislators who will introduce marijuana bills — more than 20 altogether — in 2013.
"While not all of them will pass," says Morgan Fox of the Marijuana Policy Project (MPP), the debates around them will be different than in years past. "What I'm hearing is that a dam broke," says Jill Harris, managing director of strategic initiatives for the Drug Policy Alliance (DPA). "Before Colorado and Washington, the idea of legal marijuana existed in the realm of fantasy. But after Colorado and Washington, we can have a more serious conversation."
With the start of the 2013 legislative session, that conversation has officially begun. Incremental reforms are going to happen in the next 12 months, even if the next state to fully legalize marijuana doesn't do so until 2014 or (more likely) 2016. We asked the folks at MPP, which was instrumental in the passage of Amendment 64, and DPA, which led the charge in Washington, which state legislatures could make big changes to their marijuana laws in 2013. These are the four they told us about.
1. Medical Marijuana in New Hampshire...
2. Hemp in Kentucky...
3. Medical Marijuana in Illinois...
4. Decriminalization in Vermont...
And here is another notable headline/article on this general front from the folks at Reason: "Poll Finds Most Americans Support Treating Marijuana Like Alcohol; Even More Think the Feds Should Let States Do So"
A few recent and older related posts:
- Lots of interest and interesting ideas in Washington forum concerning marijuana legization implementation
- "Neighbor states on guard against pot from Colo., Wash."
- Female voters seen as key to success of pot reform initiatives
- Supporting pot prohibition as divining rod pointing toward social conservatives and away from fiscal conservatives
- Are there constitutional limits on severe mandatory federal punishments for those complying with state marijuana laws?
- If force to choose, would you legalize marijuana or prohibit tobacco?
- Intriguing new comments from President Obama on federal pot prohibition policy
- "California inspired — and now inspired by — other states' marijuana legalization measures"
Iowa CEO -- aka "Madoff of the Midwest" -- gets 50 years for major embezzlement and bank fraudAs reported in this New York Times piece, headlined "Ex-Peregrine Chief Sentenced to 50 Years in Prison," another white-collar scoundrel got another functional life sentence in federal court today. Here are the basics:
A prominent futures-industry executive was sentenced to 50 years in prison on Thursday for embezzling from his clients and defrauding banks over nearly two decades.
Russell Wasendorf Sr., the chief executive of the now-defunct brokerage firm the Peregrine Financial Group, stole more than $215 million from his customers in a remarkably crude fraud that involved doctored documents that went undetected for years.
Shackled and dressed in orange prison garb, Mr. Wasendorf sat expressionless as Judge Linda Reade of the United States District Court in Cedar Rapids, Iowa, handed down the maximum sentence recommended by the government....
“The lengthy prison sentence imposed today is just punishment for a con man who built a business on smoke and mirrors,” said Sean Berry, acting United States attorney in Cedar Rapids.
Mr. Wasendorf’s penalty is the latest in a string of stiff sentences handed down by judges for financial crimes. Bernard L. Madoff received 150 years for perpetrating the largest Ponzi scheme ever uncovered. Allen Stanford is serving a 110-year term after being convicted of swindling investors of nearly a $7 billion. Thomas J. Petters got a 50-year sentence for defrauding investors of nearly $4 billion.
Given the extremely lengthy sentences and advanced age of some of the defendants, many of these terms are largely symbolic, intended to reflect the gravity of the crimes and the need for retribution.
The fraud carried out by Mr. Wasendorf, 64, did not involve any opaque financial instruments and took place more than 1,000 miles from Wall Street, in Cedar Falls, Iowa. Federal regulators discovered the crime last summer after local police found Mr. Wasendorf unconscious in his car in Peregrine’s parking lot, a hose running from the exhaust pipe into the passenger compartment. He left a detailed suicide note explaining his crimes.
Mr. Wasendorf stole millions of dollars from his customers at Peregrine, which also did business as PFGBest, by using laser printers and software like Photoshop and Excel to make near-perfect replicas of account statements from US Bank. He duped auditors by supplying them with a false address to sending forms to the bank, which he would then intercept and send back on forged US Bank letterhead....
Peregrine’s clients — and Mr. Wasendorf’s 13,000 victims — including speculators betting on the price of orange juice and farmers who use such contracts to protect themselves from large price fluctuations....
Judge Reade rejected any leniency for Mr. Wasendorf because of his contributions to the community. “It is easy to be generous with other people’s money,” she said.
Iowa newspapers nicknamed Mr. Wasendorf “the Madoff of the Midwest.” Though Mr. Wasendorf’s criminal proceeds were a tiny fraction of Mr. Madoff’s, the two men suggested similar reasons for why they turned to a life of crime.
Mr. Madoff has said in interviews that he began his fraud after his investment performance soured and he couldn’t admit defeat. Similarly, Mr. Wasendorf, in his confession, said he began to steal from his clients when his business slumped and he began to run out of money. “I guess my ego was too big to admit failure,” wrote Mr. Wasendorf. “So I cheated.”
On Thursday, Mr. Wasendorf, gaunt and diminished, expressed deep remorse. “I feel I fully deserve whatever sentence I’m given,” he said. “The punishment I’ve caused myself is worse than anything you can impose.”
US Sentencing Commission releases (and provides on-line here only) new Booker reportI was very excited late yesterday to get a call from people at the US Sentencing Commission to tell me (1) that the USSC had completed and was starting to distribute its latest big new report on federal sentencing practice since Booker, and (2) that I could be the first website to post the report (and an accompanying press release) on-line due to the technical challenged now facing the USSC website. Ergo, below are these documents, and here are excerpts from the press release (which is dated January 30, 2013):
Today the United States Sentencing Commission submitted to Congress its report assessing the continuing impact on the federal sentencing system of the Supreme Court’s 2005 opinion in United States v. Booker, which rendered the sentencing guidelines advisory.
Judge Patti B. Saris, chair of the Commission, stated: “The sentencing guidelines remain the essential starting point for determining all federal sentences and continue to exert significant influence on federal sentencing trends over time. Four out of five sentences imposed are either within the guideline range or below the guideline range at the request of the government. However, there are certain trends the Commission finds troubling, including increased regional and demographic differences.”
The Commission undertook statistical analyses of federal sentencing data spanning a broad time frame, from October 1995 through September 2011, and focused on offenses that comprise over 80 percent of the federal criminal docket (drug trafficking, immigration, fraud, firearms, child pornography, and career offenders). The study shows that sentences for drug trafficking, immigration, and firearms offenses continue to track the guidelines closely, but in recent years sentences for fraud and child pornography offenses have increasingly diverged from the guidelines.
The rate at which courts impose sentences within the applicable guideline range has decreased over the four time periods studied, from a high of 70.1 percent to 53.9 percent during the most recent time period studied. Much of this decrease is attributable to a corresponding increase in below range sentences not requested by the government, from a low of 5.7 percent to 17.4 percent during the most recent time period. These trends were consistent across all offense types studied, but to different degrees depending on the offense. Sentencing data from the last two fiscal years indicates that the rate of below range sentences has plateaued.
The study also reveals increased differences in rates of below range sentences across the nation, ranging from less than ten percent in some districts to more than 40 percent in others during the most recent time period studied. Furthermore, judges within the same district increasingly vary from the guidelines at different rates.
The study shows that prosecutorial practices also contribute to differences in sentencing. For example, certain charging practices vary and prosecutors in more districts are making motions for below range variances from the guidelines....
In addition to the printed portion of the report, the Commission will soon be making extensive data and information available online.
Lots and lots of commentary on the report will follow the days ahead, but today I am otherwise tied up.
January 30, 2013
"Montana lawmaker offers pain instead of prison"A helpful reader altered me to this notable local story of a notable state sentencing proposal that, I suspect, ought to generate some interesting discussions. The story has the same headline as this post, and here are excerpts:
A Montana lawmaker says convicts should be allowed to get out of prison time if they instead agree to the "infliction of physical pain" — an idea that so far is receiving a cool reception.
Republican Rep. Jerry O'Neil is drafting a bill that would allow those convicted of misdemeanors or felonies to negotiate corporal punishment instead of another sentence. The method used to inflict the pain would be decided by a judge.
The veteran lawmaker said Wednesday that he thinks long prison sentences are inhumane. "Ten years in prison or you could take 20 lashes, perhaps two lashes a year? What would you choose?" O'Neil said.
He argued that the convict under his proposal could remain employed to pay restitution, and that it would potentially save the corrections budget millions of dollars per year. "It is actually more moral than we do now," O'Neil said of the lashings. "I think it's immoral to put someone in prison for a long time, to take them away from their family, and force that family to go on welfare."...
The House speaker's office noted that O'Neil bill was tied up in lengthy legal review and faces several hurdles. "It's a citizen legislature, and folks get to carry the bills they like on their own," said House Speaker Mark Blasdel, a restaurant owner from Somers.
House Minority Leader Chuck Hunter of Helena was speechless over a bill he said looks like it comes out of the 17th century. "Wow," Hunter said.
The Montana ACLU, opposed to physical pain and corporal punishment, sympathized with the effort to reduce prison populations. "We agree with Rep. O'Neil that our state needs to find alternatives to over-incarceration and lengthy jail and prison sentences that are ineffective and costly, but we don't agree that corporal punishment is the solution," said Niki Zupanic, the group's public policy director.
"We support reducing sentences and increasing our investment in community corrections alternatives. We need to put more and better options on the table, but corporal punishment is not one of them."
Not only do I share Rep. Jerry O'Neil's viewpoint that long prison sentences are inhumane, I am eager to applaud his apparent eagerness to develop a creative alternative to imprisonment that would give defendants and judges more discretionary punishment options. Indeed, if a bill were merely to allow defendants to propose corporal punishment options in lieu of any prison time, and especially if the severity to the corporal punishment is to be circumscribed and only availble upon the defendant's knowing request, I do not this provocative sentencing proposal should be dismissed out of hand immediately.
After all, even short prison terms include, both formally and informally, the imposition of some significant measure of physical discomfort: one need not have seen the TV series Oz to realize prison food, lodging and companionship lacks many of the comforts of home. Moreover, for persons who suffer from any number of medical conditions (both physical and mental), prison stays can involve persistent and sometimes extreme physical pain (and can sometimes become de facto death sentences). And, personally, I would consider the emotional pain of being separated from my children for a decade or more to be far harder to imagine or endure than even a serious whipping (and, of course, my kids would really hate not having me around to drive them places).
Of course, as with all creative sentencing proposals, the devil is in the details. But, for now, I am eager to reserve judgment on Rep. O'Neil's bill until I see just how he tries to operationalize a potential corporal punishment alternative to long prison sentences. More generally, I hope that those folks eager to support and help the interests of criminal defendants are not too quick to dismiss completely any creative efforts to develop any potentially more humane punishment option than long imprisonment to our modern sentencing toolbox.
"Ham Sandwich Nation: Due Process When Everything is a Crime"The title of this post is the title of this timely new essay by Glenn Harlan Reynolds now available via SSRN. Here is the abstract:
Though extensive due process protections apply to the investigation of crimes, and to criminal trials, perhaps the most important part of the criminal process — the decision whether to charge a defendant, and with what — is almost entirely discretionary. Given the plethora of criminal laws and regulations in today's society, this due process gap allows prosecutors to charge almost anyone they take a deep interest in. This Essay discusses the problem in the context of recent prosecutorial controversies involving the cases of Aaron Swartz and David Gregory, and offers some suggested remedies, along with a call for further discussion.
Who will (and who should) replace AAG Lanny Breuer has head of DOJ's Criminal Division?
The question in the title of this post is prompted by this lengthy official DOJ press release, titled "Assistant Attorney General Lanny A. Breuer Announces Departure from Department of Justice." In addition to singing Breuer's praises, the press release explains that "Assistant Attorney General Lanny A. Breuer of the Justice Department’s Criminal Division will leave the department on March 1, 2013," and it notes that AAG Breuer "was unanimously confirmed by the U.S. Senate on April 20, 2009, and is the longest-serving head of the Criminal Division in recent history."
This Main Justice story about the departure, as well as this piece at the Washington Post, provides a more balanced and dynamic account of Breuer's work as head of DOJ's Criminal Division. But none of these pieces discusses who might get to be the next head of the Criminal Division. The Main Justice story does note that Manhattan US Attorney Preet Bharara has garnered praise for being tough on the folks on Wall Street, and thus I have to guess that his name would not be on any short list for this new DOJ openning. Complicating this inside-the-Beltway guessing game is the fact that AG Eric Holder has talked about staying in his job for another year and then moving on himself.
So, dear readers, I am interested in hearing opinions not only concerning who you think will get to be the next head of the DOJ Criminal Division, but also concerning who you think should get this job. Given some of the praise for former US Attorney, and now US District Judge, John Gleeson today on the blog, I am inclined to wonder whether any current federal district judges with DOJ history might have an interest in switching branches.
Federal judges give Gov. Brown a six-month reprieve on California prison population deadlineAs reported in this Sacramento Bee article, headlined "U.S. judges give California six more months to cut inmate population," the federal judges administering the Plata prison overcrowding litigation in California have modified their orders in the case. Here are the details:
Three weeks after Gov. Jerry Brown declared the state's prison overcrowding crisis over, a court of three federal judges said Tuesday that state officials can have six more months to reduce the inmate population to the previously ordered level.
The judges noted that California officials have said they cannot meet the court's June 30 deadline for reducing its population to 137.5 percent of design capacity, but the officials believe they can hit that mark by Dec. 31. "Accordingly, this court modifies the June 30, 2011, order by granting defendants a six-month extension in which to comply with its terms and provisions," said the order from 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt, U.S. District Judge Lawrence K. Karlton of Sacramento and U.S. District Judge Thelton E. Henderson of San Francisco.
Karlton and Henderson have overseen years of litigation aimed at bringing the level of mental and medical health care for inmates up to constitutional standards. Following a trial, the three-judge court appointed by the 9th Circuit's chief judge ruled that the crowded conditions of the state's 33 adult prisons were the primary reason for the unconstitutional care. Prisoners were jammed into areas of the prisons not designed for housing. At some points, the number of inmates ballooned to double the designed capacity, and the U.S. Supreme Court endorsed the three-judge court's order.
Since the governor instituted his so-called realignment program a year ago to divert nonviolent, nonserious offenders to county jurisdictions, the state has made progress cutting the prison population, but Brown said he cannot release additional inmates without putting the public at risk. Corrections officials indicated they are pleased with Tuesday's order but are still not satisfied.
"We are pleased the court recognized that releasing thousands of inmates to reach the arbitrary population cap by June would have jeopardized public safety," the state Department of Corrections and Rehabilitation said in a statement. "However, we believe the court should go further and terminate the population cap entirely, as CDCR is providing a constitutional level of health care at current population levels."...
The federal court wants the prison population cut by the end of the year to about 110,000 inmates, down from about 119,000 currently. The design capacity of the state's 33 adult prisons is about 80,000....
Michael Bien, lead attorney for the inmates, said Tuesday that "the order's message is the judges are going to hold the state to the numbers. Corrections got an extension, but it didn't get anything else. The question is still 'Are they going to comply?'" Brown and his prison officials "are still saying everything is just fine and the courts should go away and leave us alone," Bien said. "They claim the courts have no more jurisdiction since the constitutional standard has been met. It's one thing to say that, it's another to prove it," he declared. "They have a long way to go to do that. They've made these claims before, but they've never been able to back them up."
January 29, 2013
US District Judge Gleeson assails drug guidelines in another potent opinonA number of helpful readers made sure I did not miss the latest doozy of an opinion issued by US District Judge John Gleeson in United States v. Diaz, No. 11-CR-00821-2 (E.D.N.Y. Jan. 28, 2013) (available for download below). The opinion is a must-read for various reasons — one reader described it to me as an "instant classic" — and these opening points hint at the opinion's coverage:
These passages from the body of the lengthy Diaz opinion reveal just some of its many flourishes:
Last year in United States v. Dossie, I wrote about how the mandatory minimum sentences in drug trafficking cases distort the sentencing process and mandate unjust sentences. This case illustrates a separate but related defect in our federal sentencing regime....
Diaz will be sentenced in a few weeks, and when that happens I will carefully consider all the factors set forth in 18 U.S.C. § 3553(a) except one — the length of imprisonment recommended by the United States Sentencing Commission’s Guidelines Manual. Though I will not ignore Diaz’s Guidelines range, I will place almost no weight on it because of my fundamental policy disagreement with the offense guideline that produces it. In fairness to the government, I write here to explain my belief that the offense guideline for heroin, cocaine, and crack offenses (“drug trafficking offenses”) is deeply and structurally flawed. As a result, it produces ranges that are excessively severe across a broad range of cases, including this one.
The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability.
If the Commission wants greater adherence to the Guidelines, as it should, it needs to get better at fixing broken offense guidelines. The drug trafficking offense guideline was born broken. Many judges will not respect it because as long as the sentences it produces are linked to the ADAA’s mandatory minimums, they will be too severe. Indeed, as discussed further below, for almost two decades the nation’s judges have been telling the Commission to de-link the drug trafficking offense guideline from those harsh mandatory minimums and to reduce the sentencing ranges. The Commission should listen and act. It should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses. That process will take time. In the meantime, because real people, families, and communities are harmed by the current ranges, it should immediately lower them by a third....
Let those who advocate for longer prison terms, and even a return to the dark days of mandatory Guidelines, go ahead and make their case. The debate is good for the health of our federal criminal justice system. But the suggestion that federal sentences should become more severe in the name of racial equality is preposterous. That case has emphatically not been made, and the Commission’s repeated suggestion that it has insults the entire judiciary and demeans the Commission itself. If it does nothing else, the Commission should take affirmative steps to remove the race issue, which it unwisely inserted into the discussion of federal sentencing policy, from the debate....
The Commission should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses. If it does, those ranges will be substantially lower than the ranges produced by the current offense guideline. The deep, easily traceable structural flaw in the current drug trafficking offense guideline produces advisory ranges that are greater than necessary to comply with the purposes of sentencing. We must never lose sight of the fact that real people are at the receiving end of these sentences. Incarceration is often necessary, but the unnecessarily punitive extra months and years the drug trafficking offense guideline advises us to dish out matter: children grow up; loved ones drift away; employment opportunities fade; parents die.
January 29, 2013 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (34) | TrackBack
Should status as sitting state justice be an aggravating sentencing factor under 3553(a)?The question in the title of this post is prompted by this local report on a federal plea deal put together in a high-profile federal prosecution in Michigan. The article is headlined "Former Michigan Supreme Court Justice Diane Hathaway pleads guilty to felony bank fraud," and here is the backstory:
Retired Michigan Supreme Court Justice Diane Hathaway pleaded guilty to felony bank fraud today and is expected to be sentenced on May 28. Hathaway stood quietly at a podium in U.S District Court in Ann Arbor this morning, acknowledging she intentionally defrauded a federally insured financial institution with the short sale of her Grosse Pointe Park home.
According to an agreement negotiated with the U.S. Attorney’s Office, her punishment is limited to up to 18 months behind bars or could be as little as 4-10 months if a pre-sentence report determines there was no actual financial loss. Hathaway also could receive a sentece of 3-5 years of supervised release, be fined up to $30,000 and pay restitution of up to $90,000, according to the agreement. She waived her right to appeal the case after sentencing....
Hathaway’s only “no” response came when O’Meara asked her about using her position as a Michigan Supreme Court judge as part of the scheme. “Did you use your status as a public employee in your attempt to defraud?” O’Meara asked her. “No,” she responded.
Hathaway was charged Jan. 18 with one count of bank fraud after investigators said she moved ownership of property in Florida to relatives so she could qualify for the short sale. Hathaway allegedly told financial institution ING Direct she could no longer afford the house payments on the Michigan home. In a civil filing in November, the U.S. Justice Department accused Hathaway and her husband, attorney Michael Kingsley, of fraudulently concealing their net worth.
The short sale in Michigan allowed the couple to erase nearly $600,000 in mortgage debt on the $1.5-million Grosse Pointe Park home on Lakeview Court, which eventually sold for $850,000. The debt-free Windermere, Fla., home then went back into their names. Hathaway’s attorney, Steve Fishman, said outside the courthouse that ING Direct is claiming they lost far less than the mortgage debt erased by the short sale.
"It's important for people to know that now we're down to the actual loss as calculated by ING ... and they're saying it's between $40,000 and $90,000," Fishman said, pointing out Hathaway could have just walked away from the home altogether. "I say the loss is nothing ... because the bank netted probably in the vicinity of $150,000 more from the fact that there was a short sale than if it had been a foreclosure and a sheriff's sale. And that will be part of the discussion when we come back for sentencing."
Hathaway left the bench after announcing the decision to retire Jan. 7 after the Judicial Tenure Commission filed a complaint and sought her immediate suspension. The commission alleged she committed "blatant and brazen" misconduct violations in connection with private real estate transactions.
As federal sentencing practitioners know well, the key federal sentencing statute requires a sentencing judge to consider "the nature and circumstances of the offense and the history and characteristics of the defendant." Though it appears there may be some dispute over the details of the offense here, there is no dispute that the defendant was a sitting Michigan Supreme Court Justice at the time of her offense.
If the defendant here had used her official position to facilitate the offense, there is little doubt that her status would be an aggravating factor (and the guidelines themselves include an upward adjustment on this basis). But the question prompted by this story and the title of this post is whether her status ought to be considered an aggravating sentencing factor even though it apparently played no role in her crime.
January 29, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (19) | TrackBack
"Washington vows to try to keep marijuana in state...but how?"The title of this post is the headline of this lengthy new AP article, which gets started this way:
So far, no one is suggesting checkpoints or fences to keep Washington state’s legal pot within its borders. But Gov. Jay Inslee insists there are ways to prevent the bulk smuggling of the state’s newest cash crop into the black market, including digitally tracking weed to ensure that it goes from where it is grown to the stores where it is sold.
With sales set to begin later this year, he hopes to be a good neighbor and keep vanloads of premium, legal bud from cruising into Idaho, Oregon and other states that don’t want people getting stoned for fun.
It’s not just about generating goodwill with fellow governors. Inslee is trying to persuade U.S. Attorney General Eric Holder not to sue to block Washington from licensing pot growers, processors and sellers. Marijuana remains illegal under federal law. “I am going to be personally committed to have a well regulated, well disciplined, well tracked, well inventory-controlled, well law-enforcement-coordinated approach,” said Inslee, who is due to give Holder more details this week.
Keeping a lid on the weed is just one of the numerous challenges Washington state authorities and their counterparts in Colorado — where voters also legalized pot use — will face in the coming months.
The potential of regulatory schemes to keep pot from being diverted isn’t clear. Colorado already has intensive rules aimed at keeping its medical marijuana market in line, including the digital tracking of cannabis, bar codes on every plant, surveillance video and manifests of all legal pot shipments.
But law enforcement officials say marijuana from Colorado’s dispensaries often makes its way to the black market, and even the head of the Colorado agency charged with tracking the medical pot industry suggests no one should copy its measures. The agency has been beset by money woes and had to cut many of its investigators. Even if the agency had all the money it wanted, the state’s medical pot rules are “a model of regulatory overreach,” too cumbersome and expensive to enforce, Laura Harris said in a statement.
A few recent and older related posts:
- Lots of interest and interesting ideas in Washington forum concerning marijuana legization implementation
- "Neighbor states on guard against pot from Colo., Wash."
- Female voters seen as key to success of pot reform initiatives
- How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?
- "California inspired — and now inspired by — other states' marijuana legalization measures"
House members ask DOJ to answer lots of questions about Swartz prosecutionAs reported in this article from The Hill, "lawmakers on the House Oversight and Government Reform Committee on Monday demanded a briefing from Justice Department officials about the prosecution of Internet activist Aaron Swartz, who killed himself earlier this month." Here are more of the basics:
In a letter to Attorney General Eric Holder, Chairman Darrell Issa (R-Calif.) and ranking member Elijah Cummings (D-Md.) said there are "many questions" about how prosecutors handled the case. They demanded a briefing from DOJ officials by Monday, Feb. 4....
Critics, including Swartz's family and members of Congress, have accused prosecutors of seeking excessive penalties in the case. The charges carried a maximum penalty of 35 years in prison and a fine of up to $1 million. Prosecutors reportedly offered Swartz seven to eight months in prison if he pleaded guilty and told him they would seek seven to eight years if the case went to trial.
In their letter, Issa and Cummings asked Holder to justify the charges and penalties that prosecutors sought. They asked whether Swartz's campaign against the the Stop Online Piracy Act (SOPA) or his association with advocacy groups influenced the prosecution. The lawmakers also asked whether the charges, penalties and plea offers were similar to other cases brought under the Computer Fraud and Abuse Act.
The detailed three-page letter to AG Eric Holder can be found at this link, and it makes for a very interesting read. Sentencing fans should find these question within the letter especially notable:
3. What specific plea offers were made to Mr. Swartz, and what factors influenced the decisions by prosecutors regarding plea offers made to Mr. Swartz?
4. How did the criminal charges, penalties sought, and plea offers in this case compare to those of other cases that have been prosecuted or considered for prosecution under the Computer Fraud and Abuse Act?...
6. What factors influences the Department's decisions regarding sentencing proposals?
7. Why was a superseding indictment necessary?
It is a darn shame that a suicide was needed for some members of Congress to begin asking some questions about how federal prosecutors exercise their charging and bargaining discretion. It is even more of a shame that it is unlikely that these important questions will ever get asked in hundreds of other federal prosecutions that, at least in my view, have been even more extreme than the prosecution of Aaron Swartz. Nevertheless, it is still nice to an Oversight committee doing some oversight here in a seemingly bipartisan way, and I am already excited to see how DOJ responds next week.
Some recent related posts:
- Notable new commentary about the Aaron Swartz's case and prosecutorial power
- Anonymous hacks USSC website to avenge Aaron Swartz's suicide
- "Anonymous re-hacks US Sentencing site into video game Asteroids"
New Sentencing Project report on 2012 state statutory sentencing developments
I just received an e-mail promoting a notable new report just released by The Sentencing Project. Here is the full text of the e-mail, signed by Marc Mauer, which includes a link to the report:
I am pleased to share with you a new report from The Sentencing Project, The State of Sentencing 2012: Developments in Policy and Practice, by Nicole D. Porter. The report highlights reforms in 24 states that demonstrate a continued trend to reform sentencing policies and scale back the use of imprisonment without compromising public safety. The report provides an overview of recent policy reforms in the areas of sentencing, probation and parole, collateral consequences, and juvenile justice. Highlights include:
- Mandatory minimums: Seven states — Alabama, California, Missouri, Massachusetts, Kanas, Louisiana, and Pennsylvania — revised mandatory penalties for certain offenses, including crack cocaine offenses and drug offense enhancements.
- Death penalty: Connecticut abolished the death penalty, becoming the 17th state to do so.
- Parole and probation reforms: Seven states — Colorado, Delaware, Georgia, Hawaii, Louisiana, Missouri, and Pennsylvania — expanded the use of earned time for eligible prisoners and limited the use of incarceration for probation and parole violations.
I hope you find this publication useful in your work. The full report, which includes a comprehensive chart on criminal justice reform legislation, details on sentencing, probation and parole, collateral consequences of conviction, juvenile justice and policy recommendations, can be found online here. I’d encourage you to be in touch with Nicole D. Porter, Director of Advocacy, at email@example.com to discuss how we can support your efforts in the area of state policy reform.
- Juvenile life without parole: Three states — California, Louisiana, and Pennsylvania — authorized sentencing relief for certain individuals sentenced to juvenile life without parole.
January 29, 2013 in Data on sentencing, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack
January 28, 2013
"Rethinking Restitution in Cases of Child Pornography Possession"The title of this post is the title of this article newly posted on SSRN and authored by Jennifer A.L. Sheldon-Sherman. (The piece is especially timely in light of yesterday's New York Times magazine cover story discussed here). Here is the abstract:
Child pornography is increasingly prevalent in today’s society and is now one of the fastest growing Internet activities. Unlike producers, possessors of child pornography do not actively engage in the physical and sexual abuse of children. However, possessors are viewers of this documented abuse and rape, and can be, therefore, similarly responsible for the perpetual victimization of innocent youth.
In 1994, Congress sought to protect victims of sexual exploitation and child pornography with the passage of the Mandatory Restitution Provision, 18 U.S.C. § 2259. While the meaning of § 2259 seems to unambiguously require restitution from defendants convicted of production, distribution, and possession of child pornography, courts’ interpretation of the provision have been less clear. Courts unhesitatingly order restitution in cases where the offender is responsible for the production of child pornography and is, therefore, directly linked to identifiable victim harm. More problematic, however, are cases where a victim seeks restitution against a defendant who did not produce the pornography but rather possessed it. In these cases, courts confront the issue of whether a victim must prove a causal connection between the defendant’s possession of the pornography and the victim’s alleged harm.
To date, the literature has focused on whether § 2259 contains a proximate cause requirement. I seek to advance this discussion, arguing that regardless of the interpretation of § 2259, the statute is not an appropriate means of compensating victims while also ensuring fairness for defendants. Accordingly, the statute as it currently operates is inefficient and unjust. This Article addresses that injustice, evaluating the underlying controversy regarding restitution for victims of child pornography possession under § 2259, discussing the judiciary’s approach to the issue, analyzing the difficulty in awarding restitution under § 2259 in cases of child pornography possession, and advocating a reformed system for issuing restitution in these cases.
January 28, 2013 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (39) | TrackBack
Intriguing Massachusetts developments in response to SCOTUS Miller rulingAs reported in this local article, Massachusetts Gov. Deval Patrick has today set out "proposed legislation that would eliminate mandatory life sentences without parole for teens under 18 convicted of first-degree murder." Here is more from the article:
The measure filed by Patrick Monday would also raise the age for juvenile court jurisdiction from 17 to 18 in Massachusetts. Under current state law, teens as young as 14 can be tried as adults for first-degree murder. Conviction on first-degree murder carries an automatic life sentence without parole in Massachusetts. Patrick’s bill would still allow life sentences without parole for juveniles under certain circumstances....
The U.S. Supreme Court ruled last year that mandatory life sentences without parole for juveniles are unconstitutional. Because of that Supreme Court case -- Miller v. Alabama -- the change proposed by Patrick to eliminate mandatory life sentences for teens is not a great surprise, several lawyers said....
According to a prepared statement issued by Patrick’s office, “An Act to Reform the Juvenile Justice System in the Commonwealth” will create a fairer justice system for the state’s youth. “Every violent felon should be held accountable for their actions, even youth. But in sentencing every felon’s circumstances should be considered, too, and youth itself is a special circumstance,” Patrick said. “It is time for the Commonwealth’s laws to reflect the value, in accord with the Supreme Court, that young people deserve every opportunity for rehabilitation and reform,” he said.
State Public Safety Secretary Andrea Cabral said, “The governor’s legislation recognizes the importance of providing juveniles with age-appropriate resources for rehabilitation. It builds on established research that proves an adolescent brain affects behavior and judgment, but that rehabilitation is possible.”
“Fair treatment of juveniles requires both holding them accountable for their actions and ensuring the highest degree of public safety in order to keep the Commonwealth’s neighborhoods safe and secure," she said.
This lengthy press release from Gov. Patrick's office provides a lot more detail on the details in the juve justice reforms now being proposed in the Bay State.
"Anonymous re-hacks US Sentencing site into video game Asteroids"This blog post via ZDNet provides the latest notable news concerning this weekend's hacking of the US Sentencing Commission's website (first reported here):
The U.S. Sentencing Commission website has been hacked again and a code distributed by Anonymous "Operation Last Resort" turns ussc.gov into a playable video game.
Visitors enter the code, and then the website that sets guidelines for sentencing in United States Federal courts becomes "Asteroids." Shooting away at the ussc.gov webpage reveals an image of Anonymous.
The trademark Anonymous "Guy Fawkes" face is comprised of white text saying, "We do not forgive. We do not forget."
Update Sunday, January 27, 11pm PST: the ussc.gov website has been offline intermittently, ostensibly due to high traffic. Anonymous Operation Last Resort tweeted the Asteroids hack can be "played" on yet another U.S. government website: "Backup gaming site while USSC.gov is down miep.uscourts.gov " (the U.S. Probation Office for the state of Michigan). This suggests, in this writer's opinion, that Anonymous has background control of multiple U.S. government websites - and after the antics this weekend, the group likely has had this access for a while and they are playing a game of cat-and-mouse with the United States Department of Justice.
Hacktivist group Anonymous began its "Operation Last Resort" Friday night by hacking the U.S. Sentencing Commission website in the name of suicide victim Aaron Swatrz, demanding reform in the U.S. justice system.
The government website was pulled offline and restored by Saturday. Now, on Sunday afternoon, the U.S. Sentencing Commission website appears to have been compromised a second time, severely, wherein a code being issued by Operation Last Resort and other Anonymous social media accounts turns ussc.gov into a game of Asteroids.
Prior related post: