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February 9, 2013

Highlighting the challenges of pardons and politics for state governors

PardonModels_infographic_finalThe folks at Stateline have this terrific new article about state pardon laws and practices titled "Governors Balance Pardons With Politics." Here are excerpts:

This week, Arkansas Governor Mike Beebe announced his intent to pardon Herman T. Warren, who had been convicted of possessing marijuana and drug paraphernalia in 2003.  Warren had completed his sentence, two years on probation, and paid all the fines associated with his conviction.

Beebe’s pardon, which will be issued following a 30-day public comment period, means that Warren will be eligible to serve on a jury and apply to own a gun, and if anyone ever questions Warren about his conviction, he can show the pardon as proof that he’s turned his life around. It’s almost as if Warren’s conviction never happened — although his record won’t be formally cleared, he will no longer experience any official consequences of his conviction.

Pardons like this one are relatively common in Arkansas. (See Stateline infographic [reprinted here].)  In his six-year tenure, Governor Beebe has pardoned 529 individuals, usually issuing a few pardons each month to minor drug offenders convicted more than 10 years ago. The process is a routine part of Beebe’s job, and he’s “constantly reviewing clemency requests,” says spokesman Matt DeCample.

But Beebe’s pardoning practices are increasingly rare among governors, who fear political backlash if a pardoned criminal should reoffend.  Clemency decisions have proved costly for recent Republican presidential candidates, including Beebe’s Arkansas predecessor, Mike Huckabee, who faced tough questions after Maurice Clemmons, a man whose sentence Huckabee commuted, was linked to the murder of four police officers near Tacoma, Washington.

Many current governors in the national spotlight, such as Wisconsin’s Scott Walker, New York’s Andrew Cuomo, and Massachusetts’ Deval Patrick, have granted no pardons at all. And governors don’t have an example of pardon leniency to follow in the White House either — President Obama granted just 22 pardons in his first term, the lowest number of any president since George Washington.  These days, many governors are more inclined to pardon a turkey for Thanksgiving or a pig for a bacon festival, than to grant restored rights to a convicted criminal.

The reasons are not always personal. In six states, pardons are entirely the province of an independent commission.  In 20 states, the governor can make the decision, but must consult with a board of one kind or another.  In Rhode Island, the Senate must approve every pardon application before it can be granted. Needless to say, very few offenders receive pardons in Rhode Island.

But in much of the country, the power to pardon remains a gubernatorial prerogative, one of the broadest executive powers afforded to governors in a state’s constitution.  And the pardon decision rarely follows any ideological trend; it’s largely subject to the individual preferences of the executive and the customs of the state, says Margaret Colgate Love, who served as U.S. pardon attorney from 1990 to 1997.

By and large, the reason for the drop in the number of governors’ pardons since the 1960s is political, argues P.S. Ruckman, a professor of political science at Rock Valley College in Rockford, Illinois, and author of the blog, Pardon Power.  “Some governors think, ‘why should I do this? It won’t benefit me politically and it might hurt me.’  There’s some very crass political calculating going on,” says Ruckman, “and people suffer because of it.”

“Particularly when a governor does it alone,” says Love, “pardoning is a very personal thing, and the reasons for doing it can vary.  To me, it is a measure of character. In some states, like Arkansas and Nebraska and Connecticut, there is a culture and expectation that there will be pardons. But there is always a political element because popular opinion is the main brake on the power.”...

Criminal convictions come with a range of collateral consequences, including the loss of voting rights, right to serve on a jury, hold public office or obtain a gun permit.  A pardon from the governor can restore those rights, and a handful of governors, including Democrats Beebe in Arkansas and Tim Kaine in Virginia and Republican Robert Ehrlich in Maryland, have restored the rights of hundreds of former offenders.

Both pardons and commutations are often made at the end of a governor’s tenure when he is not facing reelection and the political consequences for a pardoning decision won’t be as severe.  “You really see what they believe when they’re a lame duck,” says Rachel Barkow, a law professor at New York University.

It’s these end-of-term grants that are often the most infamous.  For example, just hours before Governor Arnold Schwarzenegger left the California governor’s mansion in 2011, he shortened the sentence of a political ally’s son from 16 to seven years, which angered the victim’s family and the public.  The victim’s family sued Schwarzenegger for not notifying them in advance of the commutation, but a court found that while the last-minute commutation was “repugnant,” it was not illegal.

One year later, as Haley Barbour was leaving office as Mississippi’s governor, Barbour pardoned nearly 200 offenders, including five convicted murderers, as a display of Christian principles of forgiveness, he said at the time.  The last-minute pardons set off a national uproar and the state’s attorney general argued that Barbour had violated the state constitution by not publishing a notice of his intent to pardon the offenders.  The Mississippi Supreme Court upheld Barbour’s right to pardon the offenders; however, incoming Governor Phil Bryant vowed to severely limit the number of pardons he would grant.

While the overall trends show pardons on the downturn, there are some current exceptions.  Illinois Governor Pat Quinn has pardoned over 800 people since taking office in 2009, clearing a backlog of more than 2,500 pardon applications left untouched by previous Governor Rod Blagojevich.  California Governor Jerry Brown, who has noted his commitment to rehabilitation, has issued 149 pardons since taking office in 2011, reversing a nearly 20-year trend of minimal pardons from California governors.

February 9, 2013 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

February 8, 2013

"What the Gun Lobby and the Marijuana Lobby Have in Common"

The title of this post is the headline of this new commentary by Andrew Cohen at The Atlantic.  It gets started this way:

Last week, I took a glancing look at some of the most dubious gun measures creeping up from state legislatures all over the country since the beginning of the year. The statutory text may differ from state to state, but the theme of those post-Newtown proposals are essentially the same: Under the banner of federalism, expressing alarm at federal power, earnest lawmakers are seeking to use new state laws to prevent law enforcement officials from enforcing existing (and future) federal gun regulations.

At the same time, also in the last five weeks, lawmakers in at least 18 states -- more than one-third of the nation -- have proposed dozens of new marijuana laws that would dramatically alter the way millions of people interact with pot.  Again, the details differ from bill to bill.  But, again, the underlying theme is familiar: Under the banner of federalism, expressing disdain with federal power, earnest lawmakers are seeking through these measures to erode the scope of federal law, which still classifies marijuana as a dangerous drug that is illegal to sell or possess.

The new generation of gun laws, which run directly counter to national public opinion, is rooted in the fealty of state lawmakers to the 10th Amendment, to the 2nd Amendment, to gun industry lobbyists and to its tribune, the National Rifle Association.  And these measures, if passed, would be patently unconstitutional.  You can amend or repeal a federal statute, in other words, including of course a federal gun regulation, but as a state lawmaker you cannot seek to punish federal officials who are trying to enforce it.

On the other hand, the new generation of marijuana laws, which represent growing national support for reasonable reform, is a direct result of the stunning election success last November of two legalization measures in Colorado and in Washington.  These measures, too, on their face, violate federal marijuana law.  And, ultimately, either the federal law will have to change, or these state laws will have to change.  That change isn't likely to come first from the courts.  It's going to have to come from lawmakers, from Congress, and the White House.

February 8, 2013 in Gun policy and sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Second Amendment issues, Who Sentences? | Permalink | Comments (1) | TrackBack

"Amish beard-cutting ringleader gets 15 years"

The title of this post is the headline of this AP report on a high-profile federal sentencing which took place in northern Ohio today.  Here are the basics:

The ringleader in hair- and beard-cutting attacks on fellow Amish in Ohio was sentenced today to 15 years in prison. Before his sentencing, Samuel Mullet Sr. told Judge Dan Aaron Polster in Cleveland that he had been blamed for running a cult and was ready to take the punishment. Polster also sentenced 15 other Amish to prison terms ranging from one to seven years.

Mullet, his ankles in chains and a white beard down to mid-chest, said if his community is seen as a cult, "Then I'm going to take the punishment for everybody."

With relatives of victims and his family sitting on opposite sides of the public gallery, Mullet said he has lived his life trying to help others. "That's been my goal all my life," Mullet, 67, said to a hushed courtroom, with his fellow defendants and their attorneys sitting at four defense tables and filling the jury box. "I'm not going to be here much longer," said Mullet, who didn't elaborate on any health issues.

Mullet and his family deny his community is a cult. The government asked for a life sentence for Mullet. The defense asked for two years or less....

The defendants were charged with a hate crime because prosecutors believe religious differences brought about the attacks. Nine of 10 men who were convicted have been locked up awaiting sentencing. The six women, who all have children, have been free on bond.

In a rare interview last week in Bergholz at the sprawling Mullet farm amid rolling hills in eastern Ohio, Mullet's unmarried 19-year-old grandson, Edward Mast, discussed the family's attitude. He said they are steadfast in the belief that the attacks didn't rise to the level of a hate crime. "The beard, what it stands for me, what I know about it, once you're married, you just grow a beard. That's just the way the Amish is," Mast said. As for the victims, he added, "They got their beard back again, so what's the big deal about it?"

Arlene Miller, 48, of Carrollton, whose husband, an Amish bishop, was among the victims, thinks Mullet deserves a tough sentence and the others should get less time if they get cult deprogramming counseling. "It's a cult," she said. "Their minds were programmed in the wrong way by Sam Mullet, so we feel like these people are very deceived and they are actually victims of Sam Mullet."

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February 8, 2013 in Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Notorious NY cop killer loses Atkins claim and will face federal death penalty again

As reported in this New York Times article, headlined "2 Detectives’ Killer Is Eligible for Death Penalty, Judge Rules," a lengthy federal court ruling handed down yesterday has cleared the way for an infamous murderer to face the death penalty again. Here are the basics:

A New York City man who was sentenced to be executed for the murder of two undercover police officers in 2003 — and who made headlines once again this week after it was revealed he impregnated one of his prison guards — was found by a judge on Thursday not to be mentally retarded and therefore eligible to be put to death.

The man, Ronell Wilson, shot and killed two undercover detectives — James V. Nemorin and Rodney J. Andrews — during a failed gun-buy operation on Staten Island in 2003. A federal jury found Mr. Wilson guilty of murder and handed down the first death sentence by a federal jury in the city in more than half a century.

An appeals court upheld the conviction but not the death sentence, saying the prosecution unfairly prejudiced the jury during sentencing. That meant the question of whether Mr. Wilson would face capital punishment or would face life in prison would have to be heard by a new jury.

Lawyers for Mr. Wilson sought to block the prospect that he could receive another death sentence by arguing that he was mentally incompetent. But Judge Nicholas G. Garaufis of United States District Court in Brooklyn ruled that Mr. Wilson was not mentally retarded, either at the time he committed the crime or now.

The 55-page ruling did not mention the latest controversy surrounding Mr. Wilson — that he had a sexual affair with one of his prison guards at the Metropolitan Detention Center in Brooklyn and that she is now eight months pregnant with his child. The guard, Nancy Gonzalez, 29, was arraigned in federal court on Tuesday on charges of sexual abuse of a person in custody, because an inmate cannot legally consent to sex.

If Mr. Wilson had been found to be retarded, a death penalty ruling would violate the Eighth Amendment ban on cruel and unusual punishments, as well as the Federal Death Penalty Act, passed by Congress in 1988 and amended in 1994. It states that a “sentence of death shall not be carried out upon a person who is mentally retarded.”...

Judge Garaufis noted that over the course of his life, Mr. Wilson had been given nine I.Q. tests. The methods of the testing varied, but Judge Garaufis found that because eight of those tests showed him to be at least three points above the benchmark for legal retardation, which is 70, Mr. Wilson was not retarded.

In addition to the I.Q. tests, Judge Garaufis said he based his ruling on the opinions of the clinicians who administered the tests. “The clinical judgments of Wilson’s test administrators support the court’s analysis,” he wrote. “And most of them believed his observed scores represented an underestimate of his true intelligence.”

But the judge noted that the ruling did not mean Mr. Wilson would ultimately face execution for his crimes. “This does not mean that he will receive — or deserve to receive — the death penalty,” he wrote, “but only that any such penalty would not violate the Federal Death Penalty Act or the Eighth Amendment.”

Recent related posts:

February 8, 2013 in Death Penalty Reforms, Offender Characteristics, Who Sentences? | Permalink | Comments (20) | TrackBack

"Against Proportional Punishment"

The title of this post is the title of this new article on SSRN by Adam Kolber.  Here is the abstract:

The Supreme Court has held that pretrial detainees are presumed innocent and that their detention does not constitute punishment. If convicted, however, detainees usually receive credit at sentencing for the time they spent in detention. We reduce their punishment by time spent unpunished.

Crediting time served conflicts with the commonly-held view that punishment should be proportional to blame. Offenders who deserve to be punished by one year in prison but are detained for a year before trial may be released immediately upon conviction and technically receive no punishment at all.

One way to solve the mystery of credit for time served is to recognize that people don’t care about proportional “punishment” in the narrow way the Supreme Court and many theorists use the term. Rather, they seek to dispense proportional “harsh treatment.” Even though pretrial detention is technically not punishment, it is harsh treatment inflicted by the state, and most believe offenders deserve credit for it.

Shifting our focus to proportional harsh treatment, however, solves one problem at the expense of several others. For once we broaden the notion of proportionality to encompass the harsh treatment of detention, we must consider other harsh treatment we inflict that, like detention, may not technically be considered punishment. Such harsh treatment depends on: (1) the particular facilities to which inmates are assigned; (2) how inmates experience those facilities; (3) how confinement harms them relative to their unpunished baselines; and (4) how they are affected by the collateral consequences of incarceration for decades to come. While we could try to salvage proportionality by better measuring all of this harsh treatment, I explain the sometimes absurd consequences of doing so.

Even though retributivist notions of proportionality are central to sentencing systems around the world and are widely thought to undergird core notions of criminal justice, when looked at closely, both proportional punishment and proportional harsh treatment have profoundly counterintuitive implications. Revealing the weaknesses in retributivist proportionality makes consequentialist punishment theories look correspondingly more appealing.

February 8, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack

February 7, 2013

Sixth Circuit panel adds flavor to application of Tapia to supervised release

The Sixth Circuit addresses an issue about the application of the Supreme Court's recent Tapia ruling with a panel opinion in US v. Deen, No. 11-2271 (6th Cir. Feb. 7, 2013) (available here), which struck me as blogworthy for reasons beyond the legal issues being resolved.  The first and last paragraphs of this Deen opinion highlight not only the holding, but also why the entire opinion is worth a read in full:

In the mid-1880s, Victor Hugo is said to have written, “He who opens a school door, closes a prison.”  Our national debate about the relationship between education and crime, both in regard to prevention and rehabilitation, has long raged.  A part of it — the part that asks whether rehabilitation is a viable penological goal — has been at the heart of Congress’s shaping of the American prison system.  A unanimous Supreme Court recently held that the Sentencing Reform Act does not permit a court to “impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” Tapiav. United States, 131 S. Ct. 2382, 2393 (2011).  Tapia involved a defendant’s initial sentencing.  This appeal gives us occasion to consider whether that prohibition applies when a court imposes or lengthens a prison term that follows the revocation of supervised release.  We conclude that it does.  As a result, we VACATE Defendant Michael Deen’s sentence and REMAND for resentencing....

The issue in this case is whether it is proper for a court to use rehabilitative goals as the basis of its decision to impose or lengthen a defendant’s prison sentence following the revocation of his supervised release.  We recognize that a long public debate on the role of rehabilitation in the American prison system lies beneath this issue.  As that debate has expanded to incorporate more empirical study of the viability of rehabilitation, recent developments — including the proliferation of judge-involved supervision programs in the federal courts, as well as the growth of scholarship demonstrating that rehabilitative programs cut recidivism rates — suggest that the “nothing works” consensus reached in the 1970s and 1980s may be in need of reexamination.  That full panoply of issues remains for another day.  Today, we resolve the propriety of Michael Deen’s sentence. The record in this case permits no conclusion but that the length of his prison sentence was fixed to promote his rehabilitation.  This is inappropriate in light of the Sentencing Reform Act and governing Supreme Court authority.  As a result, we VACATE Deen’s sentence and REMAND to the district court for resentencing.

For space reasons, I have omitted a bunch of footnotes from the final paragraph that include lots of notable social science literature concerning what correctional programs have showed success in reducing recidivism rates.

February 7, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Are tough sentences sought in Amish beard-cutting case part of a DOJ "war on religion"?

The provocative question in the title of this post is prompted by this recent post by Bill Otis over at Crime & Consequences under the provocative heading "DOJ Goes Stark Raving Mad." Here are excerpts of Bill's perspective on a high-profile federal sentencing case:

Regular readers know that I'm no fan of wimpy sentencing, and that I've had it with the every-excuse-in-the-book style of defense lawyering.  But there are limits.  DOJ went well beyond them when it sought a life sentence for an Amish bishop convicted of conspiracy to forcibly cut beards....

Bishop Samuel Mullett is not Mr. Nicey, according to the government's sentencing memo. The story reports that, in addition to leading the beard-cutting conspiracy for which he was convicted, prosecutors "characterized Mullet as an iron-fisted bishop who exerted total control over his flock: He censored his followers' mail, had sex with married women under the guise of marital counseling, endorsed bizarre punishments such as confinement in chicken coops and spankings, and laughed at the attacks, which were driven by a crusade to punish those who spurned his teachings."

Those are bad things, and if they are true, they are properly taken into account in federal sentencing....  But life? Is this guy Ted Kaczynski?  Zacarias Moussaoui?  Not exactly.  How does DOJ wind up recommending life for the ring leader in a beard-cutting conspiracy? They might just be smoking weed, but I suspect something else, less groovy and more ominous, is at work.

This seems to be a part of the present administration's snarling hostility to religion. And one must admit the defendant makes a politically apt target.  This "bishop" sounds like a first-class thug, and he heads a splinter group in what is itself a very small, conservative, insular religion that must seem to Eric Holder to be ripe for the pickin'.  But this is taking liberal detestation of religion to an absurd extreme.  What happened to government neutrality?  Could a sentencing recommendation this far off the wall possibly have come about without at least an element of anti-religious bigotry?

What we have here is a 67 year-old man with no prior record (so far as I know or is reported in the story) who organized, and then (apparently) laughed at, beard cuttings.  It's only when viewed in the funhouse mirror of Holder's Very Politically Correct DOJ that this could be seen as an LWOP offense.

Does the "bishop" deserve jailtime?  You bet, and I hope he gets it.  But life in the slammer? DOJ's action would be a joke if, on account of its menacing, if only shadowy, political and cultural motivations, it weren't so dangerous.

I find Bill's perspective here quite stunning (and telling) given Bill's oft-stated affinity for making the federal guidelines mandatory again and his advocacy for long-terms of incarceration to incapacitate dangerous offenders.  Let me explain (using some of Bill's own words):

1. Bill asks "How does DOJ wind up recommending life for the ring leader in a beard-cutting conspiracy?"; he asserts that only "in the funhouse mirror of Holder's Very Politically Correct DOJ that this could be seen as an LWOP offense." Actually, DOJ is only recommending a within-guideline sentence for Samuel Mullet Sr. (and it is recommending well-below guideline sentences for all the other Amish defendants).  In other words, it is only the crazy "funhouse mirror" of unduly severe federal sentencing guidelines (and the continued affinity for these guidelines stressed by folks like Bill) which makes this crime appear to be an LWOP offense.

2. As referenced in the government's sentencing memo, many other members of the Amish community have written to prosecutors to stress that Samuel Mullet Sr. is a religious terrorist comparable to other violent zealots quick and eager to do great harm to anyone who does not follow his edicts or share his views.   My own disaffinity for severe sentences was tempered as I read these letters from members of the Amish community; I came to think that showing real respect for the Amish religion may require a severe sentencing term for Mullet and his most radical followers.

3. The government's sentencing memo and related materials certainly indicate (a) that the Amish community has been much safer since Mullet's arrest, and (b) that Mullet has shown no remorse and may well return to his terrorizing ways if and whenever released from custody.  Though I am not a big fan of using vague concerns about recidivism to justify longer terms of imprisonment, in this case the risk of recidivism seems quite significant and the future crimes would surely be directed toward the very Amish community whom Bill thinks DOJ is here disrespecting.

I could go on and on, but I want to give Bill and chance to respond in the comments and also allow others to share their perspectives on this fascinating case.  (I should note that I share the view that an LWOP sentence here is overkill, though I see this as an overkill prompted by dysfunctional federal sentencing guidelines, not a religion-hating DOJ.  And though Bill never indicates what kind of prison term would be fitting in his eyes, I think something in the neighborhood to 10 years may be about right to achieve all the diverse and challenging federal sentencing purposes implicated in this case.)

Whatever else one thinks about these issues, this Amish beard-cutting case surely provides yet another example of the many ways in which difficult sentencing cases can starkly reveal (a) how problematic any rigid system of sentencing guidelines can often be, and (b) what values are at the core of various persons' diverse sentencing perspectives.

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February 7, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Religion, Scope of Imprisonment, Who Sentences? | Permalink | Comments (67) | TrackBack

Feds seeking upward departure for local comptroller engaged in long-time fraud

As detailed in this Chicago Tribune article, federal prosecutors have found a white-collar case in which they think the federal guidelines are not tough enough. Here are the basics:

In the spring of 2010, the city of Dixon was in a financial death spiral, with a budget deficit closing in on $4 million, no working cash flow and drastic cuts needed in services and hiring to stay afloat.   Longtime Comptroller Rita Crundwell gave commissioners a familiar excuse for the crisis: Declining tax revenues in a bad economy and late state payments had drained the town's coffers.

Yet Crundwell was living it up with massive amounts of stolen taxpayer money. In 2010 alone, federal authorities say, Crundwell plundered more than $5.5 million, money that went to buy an 80-acre ranch and farmhouse outside town, expand her championship horse business, fund lavish birthday parties for herself in tony Venice Beach, Fla., and buy luxury vehicles and jewelry.

In newly filed court papers ahead of Crundwell's sentencing next week, federal prosecutors are seeking as much as 20 years in prison, laying out in the greatest detail yet how her nearly $54 million in thefts beginning in 1991 devastated the northwest Illinois town's budget as well as public confidence in its government officials....

Crundwell ordinarily would face a sentence of about 12.5 to 16 years in prison under federal sentencing guidelines. But prosecutors want U.S. District Judge Philip Reinhard in Rockford to go higher because of the decades-long scheme and staggering losses.

In a response filed Tuesday, Crundwell's attorney, Public Defender Paul Gaziano, asked for a sentence at the low end of the guidelines. Gaziano noted that a 20-year sentence would likely mean that Crundwell, 60, would spend the rest of her life in prison.  He also argued that she has cooperated with authorities once the fraud was uncovered last April and has helped the town recoup some of its losses by selling off millions of dollars in horses, real estate and other assets....

When Crundwell pleaded guilty last November to a single count of wire fraud, acting U.S. Attorney Gary Shapiro called it the largest theft of government funds in Illinois history. In her plea agreement with prosecutors, Crundwell, who served as the city's comptroller starting in 1983, admitted transferring money from city funds into a bank account bearing her name that she secretly opened in December 1990.

The thefts grew bolder over time, but it wasn't until she started spending long periods away from City Hall, traveling the country to compete in horse shows, that her scheme unraveled. In 2011, the city clerk, filling in for Crundwell, discovered the secret account and informed the mayor, who tipped off law enforcement, authorities have said.

In the early years, Crundwell annually stole a few hundred thousand dollars, but by the late 1990s, as her quarter-horse business expanded and gained national attention, the thefts exploded, growing to more than $1 million in 1999, then nearly doubling to $2 million the next year, according to prosecutors.  The town's financial straits worsened, and cuts to each annual budget multiplied.  By 2008, the shortfalls reached crisis levels.  At a special City Council meeting that March, Finance Commissioner Roy Bridgeman reported that the budget deficit approached nearly $1.2 million and warned of staff cutbacks, according to court records.

Professor Todd Haugh sent me an intriguing note about this case after the feds filed its sentencing documents, which he has graciously allowed me to post here:

The government's sentencing memorandum is pretty incredible. Not only does it ask for an upward departure from the sentencing guidelines (which are already at 210-262 months based on the dollar amount and her position of trust) to a sentence of 27-34 years (324-405 months), but it includes a five-part timeline/slideshow detailing the crime and Crundwell's personal expenditures. I've never seen anything like that in 10 years of defending white collar cases, particularly when the original guideline range is that high already.... The tone of the slideshow, not surprisingly, is greed, greed, greed, and it's filled with color pictures of all the things this women bought with the illegally-obtained funds.

To put the possible sentence in perspective, if Crundwell gets anywhere close to 34 years, she will be in the upper-echelon of white collar defendants receiving heightened sentences. Skilling got 24 years; Rajaratnum got 11; Rigas got 20; Peter Madoff got 10; etc. She would be getting close to even the big Ponzi schemers (the CEO of Peregrine just got 50 years for a $100M Ponzi)....

To me, this is classic government piling on of a white collar offender in the name of assuaging community anger (which is highly concentrated here). It does very little to further the goals of sentencing (I suppose retributivists could argue the additional 100+ months are necessary but even that seems a stretch given the already high sentence), and it's simply advancing the crime master narrative of "all white collar offenders should be given life sentences because they are greedy and evil."... But it also demonstrates how the fraud guideline becomes a little silly at the high loss levels and how 3553 can be a weapon for the prosecution, not just a shield for the defense.

February 7, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"Plea Bargaining After Lafler & Frye"

The title of this post is the title of an amazing looking symposium sponsored by Duquesne University School of Law taking place a few weeks from now.  This website sets out the basics:

Join us for a national symposium on plea bargaining after the U.S. Supreme Court's two latest decisions on the topic, Lafler v. Cooper and Missouri v. Frye. These decisions recognized that a defendant has a right to the effective assistance of counsel in the process of criminal negotiations.  The Court, however, expressly declined to say what remedy a defendant, whose lawyer did not perform effectively during the plea bargain, should receive.  These cases raise many more questions than they answer.  Do they change the plea process?  How does one go about evaluating whether a lawyer has been a constitutionally competent negotiator? What remedy should lower courts apply?  Do these cases portend judicial limitations on prosecutors?

The Honorable W. Louis Sands of the United States District Court for the Middle District of Georgia, a former state and federal prosecutor, will deliver the keynote address on Thursday offering his reflections from the bench.

A series of panels, each hosted by a prominent Pittsburgh lawyer or judge, will follow on Friday to focus on implications and concerns raised by the two decisions.  The day will begin with an introduction by the Honorable Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit and author of one of the seminal pieces on the subject.

The full symposium schedule details that lots of top scholars and practitioners are covering lots of cutting edge plea bargaining topics at this event.

February 7, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

February 6, 2013

Some of today's notable marijuana headlines

22_010411marley_01Because there is so many on-going local and national sentencing developments and law reform discussions concerning marijuana, I would need to a few post posts a day just keep up with the highlights.  But, because I am disinclined to have this blog morphy into a cyber-version of High Times, I am trying to be somewhat selective concerning when and how to cover wacky weed developments. 

That said, and especially because today would have been Bob Marley's 68th birthday, I thought there we a number of major marijuana stories breaking today that justified blog coverage. Here are headlines and links to just some of the noteworthy ganja news drawn from various sources:

I think a reasonable claim could be made that any one of these headlines reports on the most important marijuana reform story of the day.  But because money often ends up speaking louder than morals, especially in lean times, I would assert that the story out of Michigan is perhaps the most consequential.  It begins this way:

Medical marijuana is turning out to be a windfall for Michigan state government.

A report says nearly $10 million in revenue was collected from applicants — more than double the cost of running the program.  The report covers the state's last budget year, which ended on Sept. 30.

A medical marijuana application costs $100.  Caregivers who grow marijuana for people also pay a fee.

To paraphrase the reggae master, it would appear Michigan's jamming, and I suspect that many other states looking for easy tax revenues will, before too long, wanna be jamming, too.

February 6, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (14) | TrackBack

(In)famous innocence story at heart of efforts to repeal Maryland's death penalty

Today's New York Times includes this notable article, headlined "A Death Penalty Fight Comes Home," concerning a major player in the push to abolish capital punishment in Maryland. Here are excerpts:

Kirk Noble Bloodsworth, a beefy, crew-cut man whose blue T-shirt read “Witness to Innocence,” took the microphone in a church hall here and ran through his story of injustice and redemption one more time.  Twenty years ago, he walked out of a Maryland prison, the first inmate in the nation to be sentenced to death and then exonerated by DNA.

About 60 activists against the death penalty listened with rapt attention, preparing to descend on state legislators to press their case.  Maryland appears likely in the next few weeks to join the growing list of states that have abolished capital punishment.  Some longtime death penalty opponents say no one in the country has done more to advance that cause than Mr. Bloodsworth.  But ending executions in Maryland, the state that once was determined to kill him, would be a personal victory for him.

Even for proponents of capital punishment, Mr. Bloodsworth’s tale is deeply unsettling. In 1984, he was a former Marine with no criminal record who had followed his father’s profession as a waterman on the Eastern Shore of Maryland.  A woman glimpsed on television a police sketch of the suspect in the rape and murder of a 9-year-old girl outside Baltimore.  She thought it looked like her neighbor Kirk, and she called the police.

From there, with the police and prosecutors under intense pressure to solve the crime, it was a short route to trial, conviction and a death sentence for a man whose Dickensian name, after all, seemed to imply guilt.  “I was accused of the most brutal murder in Maryland history,” Mr. Bloodsworth, now 52, told the church audience.  “It took the jury two and a half hours to send me to the gas chamber.”

Only after nine years in the state’s most decrepit and violent prisons did Mr. Bloodsworth, through his own perseverance and some aggressive lawyering, manage to get the still-novel DNA test that finally proved his innocence in 1993.  Even then, prosecutors publicly expressed doubt about his innocence. “Nobody knew what DNA was then — it was sort of shaman science, a ‘get out of jail free’ card,” he said in an interview. It took another decade — and, again, Mr. Bloodsworth’s own dogged efforts — before officials ran the DNA from the murder scene through a database and identified the real killer, who is now serving a life sentence.  He bore little resemblance to the description that the police had compiled from eyewitnesses....

Even after his release, Mr. Bloodsworth could never quite escape the false charges that had threatened him with execution.  He tried to return, he said, to “a normal life,” but he was haunted by what he had learned about the justice system.  “If it could happen to me, it could happen to anybody,” he said. He threw himself into work against capital punishment and for justice reform, first as a volunteer speaker and later as a professional advocate.  Last month he began work as the advocacy director for Witness to Innocence, a Philadelphia-based coalition of exonerated death row inmates who push to end capital punishment.

The movement to end the death penalty has garnered more support from politicians and the public as it has shifted from moral condemnation of capital punishment to a more practical argument: that mistakes by witnesses and the police inevitably mean that innocent people will be executed.  While DNA gets the limelight, of 142 prisoners sentenced to death and then exonerated in the last 40 years, just 18 were freed over DNA evidence, according to the Death Penalty Information Center in Washington.

Use of the death penalty has been steadily declining, and 17 states no longer have it on the books, with 5 of them abolishing it since 2007, said Richard C. Dieter, the center’s executive director. Executions dropped to 43 last year from 98 in 1999.  “These innocence cases are the biggest single factor, because it has spread doubt throughout the system,” Mr. Dieter said.

Mr. Bloodsworth, a tireless public speaker who has visited state after state to lobby for repeal, handing out a 2004 book on his case, called “Bloodsworth,” has used his own experience to promote those doubts.  “I think no single individual has changed as many minds as Kirk,” said Jane Henderson, the director of Maryland Citizens Against State Executions, a lobbying group. “He’s articulate, patient, and he’s got a huge heart.”

His homespun eloquence has unmistakable appeal, but his own tale is his most powerful argument.  Prosecutors and jurors ignored glaring problems with witnesses — two were boys who did not pick Mr. Bloodsworth out of a lineup — and dismissed five alibi witnesses who testified that he was home at the time of the murder....

Delegate Barbara A. Frush, a Maryland legislator for 19 years, said a visit from Mr. Bloodsworth two years ago changed her mind about capital punishment, which she had long favored.  “I sat across the desk from him and looked in his eyes and listened to his story,” she said.  “It sent shivers down my spine.  I thought, I can’t take the chance that I might send an innocent man to death.”

This week, for the first time, he had a private visit with the longtime president of the State Senate, Thomas V. Mike Miller Jr., who has decided to allow a floor vote on the repeal bill. Mr. Bloodsworth left the meeting more optimistic than ever.

February 6, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

"Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause: Rediscovering the Eighth Amendment's 'Economic Survival' Norm"

The title of this post is the title of this interesting-looking new paper now up on SSRN authored by Nicholas McLean. Here is the abstract:

Most modern courts that have been called upon to interpret and apply the Excessive Fines Clause of the Eighth Amendment have concluded that a fine or forfeiture can be unconstitutionally excessive only if it is grossly disproportionate to its associated offense. However, in light of its text, history, and purpose, the Excessive Fines Clause is appropriately understood as encoding both a proportionality principle and a further limiting principle linking penalties to the personal circumstances and economic status of the offender.  This article seeks to address a significant and surprising gap in the extant literature by articulating and systematically developing an account of this second principle, known in traditional English law as salvo contenemento.  This principle is properly understood as signifying an “economic survival” or “livelihood protection” norm inherent in Eighth Amendment jurisprudence.

An emerging academic literature has concluded that the practice of assessing criminal financial penalties without regard to offenders’ personal economic circumstances is both widespread and extremely harmful.  Indeed, the burden of unpayable criminal justice debt can effectively destroy offenders’ capacity to reintegrate into society.  I submit that such practices are not just bad policy, but may be properly seen as constitutionally infirm: a constitutional fines and forfeitures jurisprudence that reflected the original meaning of the Excessive Fines Clause would be significantly more sensitive to the plight of the indigent criminal defendant, and more conducive to the rehabilitative goals of the criminal law.

February 6, 2013 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

February 5, 2013

Are potential harms of "synthetic marijuana" another good argument for legalizing real pot?

The question in the title of this post was my first reaction to this new CNN story headlined "Teen narrowly escapes death after smoking synthetic marijuana." Here are the excerpts from the very lengthy piece which lead me, quite sincerely, to wonder how the significant potential harms of spice and other forms of fake pot ought to inform the on-going national debates about marijuana law reforms:

Hospital staff removed Emily Bauer's breathing tube and stopped all medication and nourishment at 1:15 p.m. December 16. Only morphine flowed into her body, as the family waited by her side in her final moments.

But the next morning, she was still alive.... Emily was back.

Her family said the drug that landed the Cypress, Texas, teenager, then 16, in the ICU two weeks earlier wasn't bought from a dealer or offered to her at a party. It was a form of synthetic weed packaged as "potpourri" that she and friends bought at a gas station.

At first, her stepfather, Tommy Bryant, said he was "fixing to whip somebody's ass," as he thought someone older than 18 bought it for her. Bryant already knew she used real marijuana occasionally. "It's not that I condoned it," he said, adding that he couldn't follow her around all day. Bryant enforces a strict no-smoking rule in the house, and said that if he ever caught Emily smoking, she'd be grounded.

"Had I thought that there was any chance that she could have been hurt by this stuff, I would have been a lot more vigilant. I had no idea it was so bad," Bryant said. "I'd never have thought we'd be in this situation. If she had bought it off the street or from a corner, that's one thing, but she bought it from convenience store."

Best known by the street names "Spice" or "K2," fake weed is an herbal mixture sprayed with chemicals that's meant to create a high similar to smoking marijuana, according to the National Institute on Drug Abuse. Advertised as a "legal" alternative to weed, it's often sold as incense or potpourri and in most states, it's anything but legal.

Synthetic marijuana was linked to 11,406 drug-related emergency department visits in 2010, according to a first-of-its-kind report by the Substance Abuse and Mental Health Services Administration. This is when it first started showing up on health providers' radar, as the Drug Abuse Warning Nework detected a measurable number of emergency visits.

Who wound up in the emergency room the most? Children ages 12 to 17. The first state laws banning synthetic drugs popped up in 2010. Now at least 41 states -- including Texas, where Emily lives -- and Puerto Rico have banned them, according to the National Conference of State Legislatures.

Older legislation targeted specific versions of the drug, but the makers of Spice were a step ahead. "These drug manufacturers slightly change the chemical compound, and it becomes a different substance that's not covered by the law," said NCSL policy specialist Alison Lawrence. "That's why in 2011 and 2012, we saw the states enacting these broader language bans."...

Emily, a straight-A and B sophomore, developed persistent migraines about two weeks before she wound up in the ICU early on December 8, said Bryant. One bad migraine even sent her to the ER.... While her family doesn't know how long she'd been using the drug, her stepfather suspected she started around two weeks before the night that sent her to the hospital.

Common side effects to smoking synthetic marijuana include bloodshot eyes, disturbed perceptions and a change in mood, said Dr. Melinda Campopiano, a medical officer with the Substance Abuse and Mental Health Services Administration. "People can become very agitated or can be come unresponsive -- conscious but not reacting normal to situations," she said. They may also appear paranoid or describe hallucinations. Some of the more potentially serious effects include an elevated heart rate and elevated blood pressure.

Campopiano said she had never heard of a patient having a stroke in these circumstances, but she described how high blood pressure could lead to one. "Generally, strokes are caused by restricted circulation, or a blood clot that blocks circulation. What we would be looking at with Spice, or K2, is the restrictive circulation model," she said....

Emily complained of a migraine and took a nap at her house after allegedly smoking Spice with friends on December 7, said Bryant. She woke up a different person. Stumbling and slurring her words, she morphed into a psychotic state of hallucinations and violent outbursts, her family said.

They called 911 after they realized she had "done something," some drug, said her stepfather. The Harris County Sheriff's Office confirmed they visited the house but declined to provide details. When paramedics arrived, they restrained her and rushed her to a Houston-area hospital, where she was admitted to the ICU....

She bit guardrails and attempted to bite those trying to help her. Hospital staff strapped Emily down in the bed, said her sister. "We thought once she comes down off the drug, we'd take her home and show her the dangers of this drug," said the 22-year-old. "We didn't think it was as big of a deal until 24 hours later she was still violent and hurting herself. We realized you're not supposed to stay high this long."

To keep Emily safe, doctors put her in an induced coma. After days in the sedated state, an MRI revealed she had suffered several severe strokes, said Bryant. "In four days' time, we went from thinking everything is going to be OK and we'll put her in drug rehabilitation to now you don't know if she's going to make it," he said....

Knowing how different people will react to fake weed is impossible. There are a few reasons that explain why. "You're hearing some pretty bad things with the synthetic cannabinoids -- part of that has to do with the potency. It can be 100 times more potent than marijuana," said U.S. Drug Enforcement Administration spokeswoman Barbara Carreno....

Carreno explained there's no consistency or quality control from one time to the next. The people making these products can be anyone from a college kid wanting to make extra cash to an operation blending large quantities in a cement mixer, she said. Two batches made by the same person could have different doses....

One in every nine high school seniors admits to having used fake weed in 2011, according to a national survey by the University of Michigan. Synthetic marijuana is the second-most popular illicit drug they use, behind marijuana.

In July 2012, President Barack Obama signed legislation banning five common chemicals used to make synthetic marijuana and bath salts. And that same month, the DEA seized almost 5 million packets of fake weed in its first national sweep of the drug....

Bryant and his family are starting a nonprofit organization called Synthetic Awareness For Emily. Their goal with SAFE is to educate families, as well as teachers and doctors, about the dangers and warning signs of synthetic marijuana use. Bryant said he has filed the paper work and is waiting to hear from the federal government on reviewing their nonprofit application.

"That's why we want to let kids and parents know about the warnings signs: migraines and withdrawal," he said. "We all know the warning signs of alcohol and cocaine, but with this synthetic weed stuff, it's so new that nobody knows about this stuff. We want to let other parents know about this so they don't have to go what we've been going through."

February 5, 2013 in Drug Offense Sentencing, Pot Prohibition Issues | Permalink | Comments (11) | TrackBack

Feds request LWOP for Samuel Mullet Sr., leader of Amish beard-cutting gang

As reported in this local article, "Federal prosecutors today urged a judge to sentence Amish bishop Samuel Mullet to life in prison for coordinating a series of beard-cutting attacks on victims who shunned the bishop and his teachings." Here is more on the filing of the latest papers in a high-profile federal case in which sentencing is scheduled for the end of this week:

"Plainly stated, Samuel Mullet Sr. should be sentenced to a life term of imprisonment because, but for Samuel Mullet Sr., it is highly unlikely any of his co-defendants would have engaged in violent and obstructive behavior," wrote assistant U.S. attorneys Bridget Brennan and Kristy Parker.

"Samuel Mullet Sr.'s control over the Bergholz community was -- and is -- absolute.  He was able to get men to surrender their wives to him. Wives would be forced to leave their small children and live in Mullet Sr.'s home so that they could be available to him."

The 25-page document was filed just days before U.S. District Judge Dan Aaron Polster sentences the 67-year-old Mullet and 15 family members and followers Friday.  Brennan and Parker said Mullet agreed with and openly encouraged a campaign of terror....

The document offers a sharp contrast to one filed by defense attorney Edward Bryan, who urged Polster to sentence Mullet to a prison term of two years or less, based on the minimal harm to the victims. Mullet did not participate in the five hair and beard shearings in 2011, but a federal jury last year convicted him of hate crimes for knowing about the assaults and failing to stop them from occurring.

Witnesses likened the bishop's ultraconservative Amish sect in Jefferson County, 100 miles southeast of Cleveland, to a cult that had turned its back on the religion's nonviolent traditions. Last fall's hate crimes trial offered a rare glimpse into Ohio's reclusive and peaceful Amish community. The proceeding was an unprecedented application of a landmark 2009 federal law that expanded government powers to prosecute hate crimes and attracted national and international attention.

Prosecutors have characterized Mullet as an iron-fisted bishop who exerted total control over his flock: He censored his followers' mail, had sex with married women under the guise of marital counseling, endorsed bizarre punishments such as confinement in chicken coops and spankings, and laughed at the attacks, which were driven by a crusade to punish those who spurned his teachings, prosecutors said.

Related posts:

February 5, 2013 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (24) | TrackBack

Second Circuit judges sparring after denial of review of long child porn sentence

DexterI noted in this prior post the must-read opinions from a split Second Circuit panel in US v. Broxmeyer, No. 10-5283 (2d Cir. Aug. 27, 2012) (available here), in which the panel upholded the reasonableness of a 30-year sentence for possession and attempted production of child pornography.  Today the full Second Circuit denied in banc review of the case via this order.  (Side note to usage mavens: I had thought the Second Circuit had officially given up the in banc form for the more traditional en banc form.  But this new order indicates otherwise.)

Here is the full text of today's order, which details the companion opinions this case has now generated:

Following disposition of this appeal on August 28, 2012, an active judge of the Court requested a poll on whether to rehear the case in banc. A poll having been conducted and there being no majority favoring in banc review, rehearing in banc is hereby DENIED.

Reena Raggi, Circuit Judge, joined by José A. Cabranes, Richard C. Wesley, and Debra Ann Livingston, Circuit Judges, concurs by opinion in the denial of rehearing in banc.

Dennis Jacobs, Chief Judge, joined by Rosemary S. Pooler, Circuit Judge, dissents by opinion from the denial of rehearing in banc.

Many flourishes in the opinions by Judge Raggi and Chief Judge Jacobs makes this latest round of Broxmeyer debate another must-read.  (Among other interesting parts of both opinions are references to infamous cannibal Jeffrey Dahmer.)  I found this particular paragraph in the dissent especially notable not only for its assertions about federalism, but also for its intriguing pop-culture reference:

The majority opinion allows a federal court to inflict punishment overwhelmingly on account of conduct that would be purely state offenses.  It is not the role of the federal courts to exact punishment for conduct that has escaped state prosecution or that (it is thought) the state has punished inadequately, and thereby augment federal sentencing policy with a bit of Dexter.

Would it be wrong to think that Chief Judge Jacobs' pop-culture flourish here provides another name to put on the list of possible candidates for new head of the DOJ's Criminal Division?

February 5, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

"Crime That No Longer Pays: Bank Robberies on the Decline as Criminals See Greater Rewards in Online Theft"

The title of this post is the headline of this interesting new piece from the Wall Street Journal.  Here are excerpts:

The recent surge in cybercrime comes with a silver lining: Bank robberies are plummeting, as criminals seem to wise up to the fact that heists just don't pay like they used to.

Bank holdups have been nearly cut in half over the past decade — to 5.1 robberies per 100 U.S. banks in 2011.  Though the nationwide crime rate is dropping, the decline in bank robberies far exceeds the decline in other crimes, according to Federal Bureau of Investigation data.  Preliminary 2012 figures released last week show the lowest tally in decades: 3,870 bank robberies, down from more than 5,000 a year earlier.

Bank-security experts and former FBI agents attribute the decline to stepped-up security and tougher sentencing for bank robbers.  Many also say that more recently, sophisticated criminals are recognizing bank robbery as a high-risk, low-reward crime and are migrating online....

Though electronic bank crimes have taken far more money than physical robberies in recent years, the shift has resulted in less violence.  In 2011, bank robberies left 88 injured and 13 dead — roughly 40% lower than both statistics for 2003, the earliest FBI figures available....

The crime hit its peak in 1991, with nearly 9,400 robberies, and is still favored by some. Last month, after a bank robbery in Elgin, Ill., police arrested Jeremy Evans of nearby Carol Stream, who the FBI believes is the so-called Ray-Bandit.  He is linked to 17 bank robberies in seven states while sporting a pair of Ray-Ban-style sunglasses.

Increasingly, though, transactions have migrated to automated teller machines and online — and criminals have followed them.  Bill Rehder, who investigated bank robberies for the FBI for 31 years, said the decline began in the 1990s, when banks began bolstering security at branches, including bulletproof barriers in front of tellers and vestibules that locked criminals inside.....

Also helping are federal sentencing guidelines for convicted bank robbers introduced in 1987, which allow judges to add years for a criminal history or use of a weapon, security experts said.  In the early 1980s, a former Los Angeles antiques dealer named Eddie Dodson single-handedly robbed 64 banks, before pleading guilty to eight robberies and serving 10 years in prison.  After his release, he robbed eight more banks, said Mr. Rehder, the FBI agent who helped catch him — twice.

Compare that with the case of Harold Walden, a teenager convicted in 1992 of robbing five banks who is serving a 73-year prison sentence.  "Once you're caught now, you're going to get hammered," Mr. Rehder said.  "That acts not only as a deterrent, but it also locks these [serial robbers] up for a long time."

Among the tough normative issues that these kinds of crime stories raise is the fundamental question of whether, as a result of formal and informal moves to replace real-world behaviors with more digital/cyber activities, we should be clebrating that there is much less violent crime even though there may now be much more overall crime.

Some related posts on the great modern crime decline: 

February 5, 2013 in Federal Sentencing Guidelines, National and State Crime Data, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

February 4, 2013

US District Judge Bennet details flaws in career offender guideline in yet another potent opinion

Will-smurf-for-foodLast week I noted the potent opinion in US v. Diaz, No. 11-CR-00821-2 (E.D.N.Y. Jan. 28, 2013) (discussed in this post), in which US District Judge John Gleeson explained why he believes the federal drug quantity guidelines should get little weight at sentencing.  Coincidentally, another thorough take down of another set of guidelines also was handed down last week by another thoughtful district judge — via a lengthy opinion that I only recently found time to read and now post.

US District Judge Mark Bennett's opinion in US v. Newhouse, No. CR 11-3030-MWB (D. Iowa jan. 30, 2013) (available for download below), is another must-read and an "instant classic" like Diaz. I cannot do justice to Judge Bennett's 68-page opinion in Newhouse, so I will be content to let the first few paragraphs (with important footnotes left out, but emphasis in original) serve as an appetite wheter:

Does the grid and bear it scheme of the U.S. Sentencing Guideline Career Offender recidivist enhancement, § 4B1.1, raise a specter of aperiodic, irrational, and arbitrary sentencing guideline ranges in some cases?  This issue is squarely raised by Lori Ann Newhouse, a low-level pill smurfer, “[a] person who busily goes from store to store acquiring pseudoephedrine pills for a meth cook, usually in exchange for finished product.”   Not only is Newhouse a mere pill smurfer, she is truly a “one day” Career Offender because her two prior drug predicate offenses arose out of a single police raid of a Motel 6 room over a decade ago, on February 26, 2002, in Altoona, Iowa, when Newhouse was just 22 years old.  The police found Newhouse and three others in the motel room.  Newhouse was charged in state court and pled guilty to possession with intent to deliver 3.29 grams of methamphetamine and 14.72 grams of psilocybin mushrooms.  She was sentenced to probation on both charges, but on different days, by Chief Judge Arthur Gamble of the Fifth Judicial District of Iowa.  For reasons unknown, but likely random, the local prosecutor filed the two charges on separate days.  Ironically, if the two charges had been filed in the same charging document — or the defense lawyer, the prosecutor, the judge or the court administer had scheduled the two sentencings for the same day — Newhouse would not be a Career Offender.

Because of Newhouse’s Career Offender status, her U.S. Sentencing Guideline range was enhanced from 70-87 months to a staggering and mind-numbing 262 to 327 months. This breathes real life into the observation of the Seventh Circuit Court of Appeals, a year before Newhouse pled to the state court drug charges, that: “The consequences of being deemed a career offender for purposes of section 4B1.1 of the U.S. Sentencing Guidelines are grave.” United States v. Hoults, 240 F.3d 647, 648 (7th Cir. 2001).  Newhouse is just one of thousands of “low hanging fruit” — non-violent drug addicts captured by the War on Drugs and filling federal prisons far beyond their capacity. See United States v. Vasquez, No. 09-CR-259 (JG), 2010 WL 1257359, at *3 (E.D.N.Y. Mar. 30, 2010) (observing that in “the war on drugs” “prosecutors can decide that street-level defendants like Vasquez — the low-hanging fruit for law enforcement — must receive the harsh sentences that Congress intended for kingpins and managers, no matter how many other factors weigh in favor of less severe sentences.”); see also Susan Stuart, War As Metaphor And The Rule Of Law In Crisis: The Lessons We Should Have Learned From the War On Drugs, 36 S. ILL. U. L.J. 1, 5 (2011) (pointing out that the war on drugs “has lasted longer than the reigns of the Roman Emperors Caligula through Nero.”); Marc Mauer, The Sentencing Project, The Changing Racial Dynamics of the War on Drugs 1 (2009) (reporting that there has been an 1100% increase in the number of persons incarcerated on drug charges since 1980, from about 40,000 people to 500,000 in 2009).

Download Judge Bennett US v. Newhouse Opinion

As folks around my age may remember well from Saturday mornings long ago, one key distinguishing features of Smurf Village — beyond, of course, a disturbing gender imbalance and a communist social structure (with Papa Smurf as general secretary) — was the ability for every inhabitant to use the word "smurf" to mean whatever Smurfs wanted the word to mean. This ruling by Judge Bennett provide a useful window into just how smurfed-up the guidelines lingo can be, as one prior minor crime a decade earlier can turn a low-level, non-violent drug defendant into a "Career Offender."

February 4, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (25) | TrackBack

"Colorado Capital Punishment: An Empirical Study"

The title of this post is the title of this paper now up at SSRN by Justin F. Marceau, Sam Kamin and Wanda Foglia. Here is the abstract:

This article reports the conclusions of an empirical study of every murder conviction in Colorado between January 1, 1999 and December 31, 2010.  Our goal was to determine: 1) What percentage of first degree murderers in Colorado were eligible for the death penalty; and 2) How often the death penalty was sought against these killers.  More importantly, our broader purpose was to determine whether Colorado’s statutory aggravating factors meaningfully narrow the class of death eligible offenders as required by the Constitution.

We discovered that while the death penalty was an option in approximately ninety two percent of all first degree murders, it was sought by the prosecution initially in only three percent of those killings, pursued all the way through sentencing in only one percent of those killings, and obtained in only 0.6 percent of all cases.

These numbers compel the conclusion that Colorado’s capital sentencing system fails to satisfy the constitutional imperative of creating clear, statutory standards for distinguishing between the few who are executed and the many who commit murder.  The Eighth Amendment requires that these determinations of life and death be made at the level of reasoned legislative judgment, and not on an ad hoc basis by prosecutors.  The Supreme Court has emphasized that a State’s capital sentencing statute must serve the “constitutionally necessary function . . . [of] circumscrib[ing] the class of persons eligible for the death penalty” such that only the very worst killers are eligible for the law’s ultimate punishment.  Colorado’s system is unconstitutional under this standard because nearly all first degree murderers are statutorily eligible to be executed.

I do not think one needs to be a sophisticated empiricist to have an inkling, based on the quality and quantity of support for the death penalty expressed in some comments, that not all readers of this blog with feel compelled to reach the same constitutional conclusion reached by these authors concerning Colorado's modern experience with capital punishment.

February 4, 2013 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Guest post: "Victims of Human Trafficking Can Vacate Convictions in NY"

As regular readers know, I welcome guest posts from all quarters, and I was pleased when prominent New York criminal practitioner Arkady Bukh (firm website here) sent me this extended discussion of an important legal issue:

It has long been a fact that the victims of human trafficking, especially sexual trafficking, suffer not just from their abusers, but also from a criminal record that they carry with them the rest of their lives. This record can keep them from turning their lives around by keeping them from regular employment, good credit and in general ruining their overall reputation in the community. How sad is it that someone coerced or sold into sexual slavery at the age of 13 cannot obtain a normal life even when their abuser has been caught or they have escaped from them. At the present time there are seven states that have enacted legislation to clear the criminal records of the victims of human trafficking and they are: New York, Illinois, Maryland, Nevada, Vermont, Washington and Hawaii. This is a brief overview of the law as it presently stands in New York State.

a) The New York Vacating Convictions law at this time can only be applied to persons that have been convicted of two crimes: 1) New York Penal Law §230.00 – Prostitution; 2) New York Penal Law §240.37 Loitering for the Purpose of Engaging in a Prostitution Offense.

b) This statute states that there is not official documentation of trafficking required for a victim to qualify, however, if they do have official documentation such as a letter from the Dept. of Health stating that they were a victim of human trafficking then there is a presumption created that their convictions were from trafficking. There is no evidence such as this required in the New York Law and personal affidavit is accepted.

c) Importantly the New York law does NOT MANDATE that victims bringing their motions for vacatur to have to prove that they have exited prostitution or have entered some sort of "rehab" type of program in order to gain this remedy. However, in order to insure that victims can come forward even years after their victimization has ended to clear their conviction history, the legislation has included the following paragraph for their benefit, not as a mandate:

A motion under this paragraph shall be made with due diligence, after the defendant has ceased to be a victim of such trafficking or has sought services for victims of such trafficking, subject to reasonable concerns for the safety of the defendant, family members of the defendant, or other victims of such trafficking that may be jeopardized by the bringing of such a motion, or for other reasons consistent with the purpose of this paragraph. N.Y. CRIM. PROC. LAW §440.10(1)(i)

d) A major aspect of the victimization of these people is that they have often been threatened with death or injury to themselves or family members by their abusers. For this reason, the NY law allows a victim's motion to be made with privacy allowed to the petitioner. Legal Services and other advocacy groups have made these petitions using only the victim's initials, much the way a minor is often protected in the family courts.

e) The New York creates actual vacatur for the victim which is stronger than an expungement which may be offered by other states. A vacatur is actually the closest thing to erasing the convictions of the victim where in some states that after an expungement the petitioner must then ask the records to be sealed. New York State does not have an expungement remedy for any crime which is why this is done as a vacatur actually vacating the convictions and creating a clean record.

f) If the victim has met all the requirements of this law and is a victim of human trafficking, the Judge has no discretion not to vacate the convictions and dismiss the accusatory instruments. The elements needed to be met are: 1) was a victim of human trafficking, 2) was charged with the crimes and 3) these crimes that they have been charged with were due to the fact of human trafficking.

g) However, a Judge may have discretion to take any additional action they deem reasonable such as possibly vacating other offenses that they consider part of the whole trafficking life of the victim.

h) This law is retroactive and can cover any convictions the victim incurred prior to the law being enacted.

It is a positive thing that New York passed this legislation in 2010 and a good thing that six other states have similar laws on their books. However, it is very sad that 43 states have yet to take this action to protect the victims of human trafficking, especially at a time when this crime has become more and more prevalent. Many victims of trafficking are brought to this country illegally by their abusers and this law makes it possible for them to obtain legal status. "The Board of Immigration Appeals has rules that when a state court vacates a judgment of conviction based on a procedural or legal deficit,..…the conviction is eliminated for immigration purposes".

New Jersey along with other states such as Florida are looking at legislation strengthening their laws against human trafficking, it can just be hoped that at the same they will add legislation that will vacate the convictions of those victims of this crime.

February 4, 2013 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

February 3, 2013

"Why Police Lie Under Oath" and deeper challenges involving criminal justice metrics

03POLICE-articleInlineThe title of this post is the partially drawn from the headline of this opinion piece in today's New York Times, which was authored by my Ohio State College of Law colleague Michelle Alexander.  Here is how it starts:

Thousands of people plead guilty to crimes every year in the United States because they know that the odds of a jury’s believing their word over a police officer’s are slim to none. As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but?  As one of my colleagues recently put it, “Everyone knows you have to be crazy to accuse the police of lying.”

But are police officers necessarily more trustworthy than alleged criminals?  I think not. Not just because the police have a special inclination toward confabulation, but because, disturbingly, they have an incentive to lie.  In this era of mass incarceration, the police shouldn’t be trusted any more than any other witness, perhaps less so.

That may sound harsh, but numerous law enforcement officials have put the matter more bluntly. Peter Keane, a former San Francisco Police commissioner, wrote an article in The San Francisco Chronicle decrying a police culture that treats lying as the norm: “Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath.  It is a perversion of the American justice system that strikes directly at the rule of law.  Yet it is the routine way of doing business in courtrooms everywhere in America.”

Though focused on police practices, this piece goes on to touch upon the broader systemic problems that can result from "get tough" metrics (much too?) often being used by police and prosecutors and rewarded by legislatures:

Police departments have been rewarded in recent years for the sheer numbers of stops, searches and arrests. In the war on drugs, federal grant programs like the Edward Byrne Memorial Justice Assistance Grant Program have encouraged state and local law enforcement agencies to boost drug arrests in order to compete for millions of dollars in funding.  Agencies receive cash rewards for arresting high numbers of people for drug offenses, no matter how minor the offenses or how weak the evidence.  Law enforcement has increasingly become a numbers game.  And as it has, police officers’ tendency to regard procedural rules as optional and to lie and distort the facts has grown as well. Numerous scandals involving police officers lying or planting drugs — in Tulia, Tex. and Oakland, Calif., for example — have been linked to federally funded drug task forces eager to keep the cash rolling in....

The natural tendency to lie makes quota systems and financial incentives that reward the police for the sheer numbers of people stopped, frisked or arrested especially dangerous. One lie can destroy a life, resulting in the loss of employment, a prison term and relegation to permanent second-class status. The fact that our legal system has become so tolerant of police lying indicates how corrupted our criminal justice system has become by declarations of war, “get tough” mantras, and a seemingly insatiable appetite for locking up and locking out the poorest and darkest among us.

And, no, I’m not crazy for thinking so.

As regular readers likely realize, I am a big fan of data and metrics in the operation of modern criminal justice systems (which is, surely, a by-product of the fact that I am much more drawn to consequentialist rather than retributivist theories of punishment). Thus, as a general matter, I am not opposed to the reality that law enforcement, as well as other parts of our modern criminal justice system, "has increasingly become a numbers game." But, as this opinion piece highlights, we need to be conscious and cautious about whether the metrics were are using are the right ones and about whether these metrics may be harmfully distorting the ways in which various criminal justice actors go about doing their jobs.

I have been giving extra thought to these issues lately in part because of this recent post noting a prosecutor taking with pride about extra long federal sentences and this recent post about the US Sentencing Commission's new Booker report noting that the number of federal offenders has substantially increased in recent years.  But all sort of other major criminal justice issues and debates can (and should) turn on debates over metrics.  For example, does more guns, as some contend, really result in less crime?  And what will and should be the metrics used to judge the success or failings of  modern marijuana reform efforts? 

Staying focused on sentencing issues, the nationwide movement toward so-called "evidence-based" reforms also has, hiding deep within, really hard questions concerning what kinds of "evidence" are most valid and most important in the continuing evolution of sentencing systems.  Is saving a lot of taxpayer money a marker of sentencing reform success if crime ticks up a bit?  How about simply having fewer persons with liberty restricted by being in prison or subject to criminal justice control? (Maybe now that Nate Silver has some free time until the next election cycle gets into full swing, perhaps he can focus his impressive data-crunching skill on these issues and all the challenges they present.)

Some recent and older related posts implicating metric challenges:

February 3, 2013 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (46) | TrackBack