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February 18, 2013

You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?

Jesse-jackson-jr-wife-Sandi-kids-1Regular readers know that, often on the eve of a high-profile or unique sentencing proceeding, I urge folks to imagine being the judge and to propose a just and effective sentence for the defendant.  (See, e.g., prior "you be the judge" posts involving a rouge federal judge, a Ponzi schemer, the "Spam King", and an NBA star.)   Today, however, as the title of this post highlights, I am changing the script after being inspired by this Chicago Tribune article about a latest very high-profile federal political corrpution case.  the article is headlined "Lawyers: Jackson Jr., wife intend to plead guilty to charges," and here are the (not so simple) basics:

Jesse Jackson Jr. and his wife Sandi intend to plead guilty to federal charges alleging the former congressman misused $750,000 in campaign funds while she understated their income on tax returns for six years, their lawyers say.

Jackson Jr., 47, a Democrat from Chicago, was charged in a criminal information Friday with one count of conspiracy to commit wire fraud, mail fraud and false statements.  He faces up to five years in prison, a fine of up to $250,000 and other penalties.

Sandi Jackson was charged with one count of filing false tax returns.  She faces up to three years in prison, a fine of up to $250,000 and other penalties.

Jackson Jr. is accused of diverting $750,000 in campaign funds for personal use.  Federal authorities allege that Jackson Jr. used campaign funds to purchase a $43,350 men’s gold-plated Rolex watch, $5,150 worth of fur capes and parkas, and $9,588 in children’s furniture.  The purchases were made between 2007 and 2009, according to the criminal information, which authorities noted is not evidence of guilt....

The government also alleged that Jackson Jr. made false statements to the House of Representatives because he did not report approximately $28,500 in loans and gifts he received.  "He has accepted responsibility for his actions and I can confirm that he intends to plead guilty to the charge in the information," Jackson Jr.'s attorney Brian Heberlig said.

Sandi Jackson is accused of filing incorrect joint tax returns with her husband for calendar years 2006 through 2011, reporting income “substantially less than the amount of income she and her husband received in each of the calendar years,” with a substantial additional tax due. Her attorneys released a statement saying she has "reached an agreement with the U.S. attorney’s office to plead guilty to one count of tax fraud."

Jackson Jr. stepped down from the House of Representatives on Nov. 21, citing both his poor health and an ongoing federal probe of his activities.  In a statement then, he said he was doing his best to cooperate with federal investigators and to accept responsibility for his “mistakes.”...

Sandi Jackson's attorneys released a statement saying she "has accepted responsibility for her conduct, is deeply sorry for her actions, and looks forward to putting this matter behind her and her family.  She is thankful for the support of her family and friends during this very difficult time."...

The Rev. Jesse Jackson said he would "leave it up to the courts system" to determine his son's fate. "We express our love for him as a family," he said....

Last June, Jackson Jr. began a mysterious leave of absence for what originally was called “exhaustion” but later emerged as bipolar disorder. He spent months in treatment and won re-election Nov. 6 despite never returning to service in the House or staging a single campaign appearance....

Jackson Jr. was first elected to Congress in 1995. Sandi Jackson was a Chicago alderman until she resigned her post last month. They have two children.

Federal sentencing fans know well that the willingness of the Jacksons to accept responsibility and plead guilty should help them considerably when a federal judge is tasked with imposing a sentence on the alleged federal charges.  Indeed, I have to assume that this willingness to plead guilty is a reason that the initial charges in this case appear to limit Jesse's maximum prison sentence to only five years and Sandi's maximum sentence to only three years.

But, regular readers should recall from recent discussions over the high-profile Amish beard-cutting federal case, federal prosecutors not only need to decide what criminal charges to file, but they also need to decide what sentence should be recommended after convictions are secured.  Ergo the question for readers in the title of this post: assuming the Jacksons both plead guilty and show deep and genuine remose for their wrong-doing, what sentence do you think federal prosecutors should seek for Jessie Jr. and Sandi?  

P.S.  Depite the US Sentencing Commission's website still being down (grrr....), I was able to do a quick guidelines guestimate that Jesse Jr. would be facing, at the very least, three or more years in federal prison as a recommended guideline range (principally because the "loss" amounts alleged here are pretty high).  But, of course, as Bill Otis was quick to remind us in the Amish beard-cutting conversation, federal prosecutors need not (and arguably should not) utilize the guidelines range as a starting metric for any prosecutorial sentencing recommendations.

UPDATE:  I have added a picture of the Jackson family to this post in part because I had been wondering about the ages of their two children.  Though the picture reprinted here may be a bit dated, I have confirmed (via this Wikipedia entry) that the kids are still pretty young — ages 12 and 9 as of this writing — which means they would likely be harmed greatly if both their parents are sent to prison at the same time.  Ergo, if any would-be federal prosecutors are inclined to recommend prison sentences for both Jessie Jr. and Sandi, I wonder if you would oppose a likely request from the defense to stagger any prison terms so that the Jackson children can always have at least one parent on the outside.

February 18, 2013 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (34) | TrackBack

"Koch Death Penalty Arguments Still Persuasive"

The title of this post is the headline of this interesting new commentary noting one aspect of the life of the famous former NYC mayor Ed Koch.  Here is how the commentary starts:

The passing of former New York Mayor Ed Koch on February 1 brings to mind one of the most controversial things he ever did as a Democrat in the heart of American liberalism. In 1985, the three-term (January 1, 1978 - December 31, 1989) mayor wrote an essay defending the death penalty. He even had the temerity to declare, "Life is indeed precious and I believe the death penalty helps to affirm that fact."

Though it outraged liberals and "progressives" among the nation's esteemed "intelligentsia," Koch's essay reflected the convictions of most Americans, then as now, as opinion polls have consistently shown a substantial majority in favor of the death penalty.

Though this new commentary did not link to the old Ed Koch essay being referenced, I found this reprinting of the Koch essay on-line.  This link reports that the essay ran under the headline "Death and Justice: How Capital Punishment Affirms Life," and first appeared in The New Republic in April 1985.

February 18, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Is a (harmful?) gray market inevitable even if pot becomes fully legal?

The question in the title of this post (which itself is full of questions) is prompted by this new local article out of Colorado, which is headlined "Marijuana-for-donation swaps test limits of Colorado law." Here are excerpts from the press report:

His store's location stinks, the owner of the head shop admits. It's in a nondescript building on an out-of-the-way road below the Colfax Avenue viaduct across from Sports Authority Field at Mile High. Unless you're trying to find Broncos parking, you might never even know there's a there there for a store to be.

So, to bring feet to his street, the owner of 4 Strains Pipe and Tobacco — which sells supplies for smoking this, that and what have you — came up with this marijuana-tinged ad on Craigslist: "CO AMENDMENT 64 COMPLIANT. 21 AND UP GET YOUR 2 GRAMS OF BUD FREE WITH $30 OR MORE PURCHASE IN OUR HEAD SHOP. THIS IS FREE AS A GIFT. ONE GIFT PER DAY PER PERSON. NO JOKE."

In post-marijuana-legalization Colorado, the pitch is bold. It's creative.  But is it legal? It depends on the definition of "remuneration."

"It's a tricky issue," says Christian Sederberg, an attorney who helped write Amendment 64, which legalized limited possession and — eventually, but not yet — retail sales of marijuana in Colorado. Since Colorado voters approved Amendment 64 in November, dozens of offers for "free" marijuana have sprung up on the frontier between legal and illegal.

Craigslist is home to numerous ads offering free marijuana for a donation. Backpage, another ad site, has more.  Each ad has essentially the same hook: It's not the pot you're paying for. "i can gift my smoke to others and am taking donations for power/rent," one ad states.

Amendment 64 allows adults to give one another up to an ounce of marijuana, provided it is done "without remuneration."  What exactly that means, though, is still being worked out by lawmakers, regulators and a task force appointed to suggest rules for legal marijuana in the state.

Ro Silva, a spokeswoman for the Colorado Department of Revenue, which will eventually oversee recreational-marijuana businesses, said the state currently doesn't have any rules on when an exchange of marijuana and money is a sale and when it's something else.

The owner of 4 Strains — who asked to be identified only as Mike P. because he is worried about robbers coming to his home — said he consulted with a lawyer prior to posting his ad and is doing everything in good faith with the law.   "The marijuana is not for sale," he said.  "You're actually purchasing smoking accessories, tobacco, T-shirts, fine art. As a gift for them patronizing our store, we're giving them 2 grams of marijuana for free. ... It's just an incentive."

Sederberg, though, said the position is a risky one and that police and the courts could see it differently.  "The concept of remuneration has not been clearly established," he said.

Colorado Springs police this month arrested three men allegedly behind a marijuana-for-donation delivery service.  Billygoatgreen MMJ advertised on Facebook and Craigslist and offered to give pot for free while soliciting "suggested donation[s] towards researching [marijuana] and improving our cultivation operation," according to an e-mail the service's owners wrote to the Colorado Springs Independent.

Meanwhile, counter-ads have popped up on Craigslist, warning would-be marijuana providers that the cops might be watching. Sederberg said the frontier era of Colorado marijuana law will likely civilize quickly.  Regulations are coming.  Court rulings will help clarify things. It may be only a matter of time until remuneration comes to include donation.

"The bigger point," he said, "is we need to get the regulated marketplace in place as soon as possible. "Ultimately, I think a lot of this is going to go away."

In this setting, I think the vice of gambling rather than the vice of alcohol provides a useful reminder that the (inevitable?) development of gray markets and clever marketing schemes is not always a reason to favor prohibition over legalization. After all, the huge on-line poker industry was a big gambling gray market in the US for a decade and it help contribute to the national poker boom that aided so many legitimate businesses. And casinos are amous, of course, for giving stuff away (comps) to get people to come and gamble more.

I raise these points in part to encourage a balanced reaction to any and all of the (too common?) efforts by "pot pioneers" to skirt close to the edge of the law in running their businesses as marijuana reform gathers steam nationwide.  As this article highlights, there will surely be lots of legal gray areas as this industry and new state regulation develop.  In my view, the fact that some (many? most?) in the pot business will run a market in the gray areas is not itself a reason to conclude the industry should be shut down before the rules of thr road get clarified.

February 18, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (9) | TrackBack

February 17, 2013

If you are eager for access to all parts of the new US Sentencing Commission Booker report...

Federal practitioner Mark Allenbaugh has posted via this special page (which is part of his firm website) all the separate parts of the US Sentencing Commission's massive report on the post-Booker federal sentencing system. 

Regular readers will recall that I had the honor, via this post, of being the first website to post Part A of the new USSC Booker report (and an accompanying press release) due to the technical difficulties facing the USSC website thanks to the Anonymous scoundrals.  I has been hoping, now a full three weeks after the US Sentencing Commission's website was hacked up and taken down, that the USSC would have its on-line home back in working order.  But, as of this writing, the USSC's main webpage is still "under construction." 

Word among those in the know is that, within the next few weeks, the US Sentencing Commission will also be releasing a big new report about federal child porn sentencing.  I remain hopeful that the USSC's website will be back in action by the time the CP report is ready.  But I suppose only time will tell.

Recent related posts:

February 17, 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 (0) | TrackBack

Lengthy discussion of Miller in Michigan through lens of one female murderer

This lengthy new AP article, headlined "Sentenced to life at 16, woman hopes for freedom," provides a details account of the implications and application of the Supreme Court's Miller ruling in Michigan (and elsewhere). As the headline suggests, the bulk of the piece is focused on one female offender, but these excerpts highlight some broader part of the story:

There are more than 2,000 Barbara Hernandezes in this country -- men and women sentenced to live and die in prison for murders committed when they were teens.  Last June, the U.S. Supreme Court delivered a long-awaited ruling, wrestling with questions that have confounded the justice system for years: Should teens convicted of the most brutal crimes be punished just like adults? Or should their youth matter?

The ruling was dense with legal references and focuses on faraway cases. But in its 64 pages, the court offered new hope to inmates in 28 states.  "Imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children," Justice Elena Kagan wrote for the court's majority.

Despite the justices' strong words, they declined to settle the many complex questions inherent in resolving these cases. Instead, they left it to people in statehouses and courthouses, in living rooms and law offices and prison cells.  In Michigan and many other states, the challenge now is to decide whether, and how, this new standard of fairness is supposed to confront the stern justice of the past.

That won't be easy. In the closing hours of Hernandez's trial, the prosecutor urged jurors to focus solely on her role in killing James Cotaling, a 28-year-old auto mechanic who, on a Saturday night in May 1990, told his fiancee he was going out to buy a Mother's Day card at Kmart, but never came home. "This would be the type of case where it would be easy to feel sorry for Barbara Hernandez, but you all promised me at jury selection that sympathy would play no role in your deliberations," said the prosecutor, Donna Pendergast. "You can't look at who this defendant is. You have to look at what she did."

Now, more than two decades later, the Supreme Court says that is not enough. But to comply with the court's words will take more than just a change in legal process.  It could well force the system to revisit the distant past and appraise its meaning, to again confront the details of terrible crimes and to take measure of childhoods left behind long, long ago....

More than two decades later, the Supreme Court says juvenile defendants' lives must be weighed when they are sentenced. Critics and supporters of the ruling agree it will change sentencing of juveniles in the future. But what should judges do with those already serving life? If the new ruling applies to them, too, what should happen next?

Lawyers for prisoners want resentencing hearings to consider factors set out by the court, including lack of maturity at the time of the crime, family background, vulnerability to negative influences and the role the teen played in the killing.  But officials in state after state have taken widely varying paths to resolution.

California Gov. Jerry Brown signed a bill allowing judges to reduce sentences to 25 years to life if an inmate shows remorse and is working toward rehabilitation.  In Iowa, Gov. Terry Branstad commuted all juvenile life sentences to 60 years, a decision widely seen as flouting the Supreme Court's directive.  Pennsylvania lawmakers set minimum sentences of 25 years for defendants 14 or younger convicted of first-degree murder, while those 15 to 17 would have to serve at least 35 years.

In Michigan, the issue is being hashed out on three fronts. In the legislature, state Rep. Joe Haveman introduced bills late last year allowing for possible parole of juvenile lifers after 15 or 20 years, depending on their age at the time of the crime.  But Michigan's parole board has a reputation for releasing very few lifers and Haveman said he's not sure how to address that. He chose not to pursue passage and is meeting with a group, including prosecutors and defenders, to propose new bills for this year.   "I think the public is ready to look at alternative thinking and alternative sentences, than to just say let's throw people in prison and not think about them again," Haveman said.

A federal judge ruled in January that Michigan laws mandating life sentences for teens convicted of first-degree murder are unconstitutional.  But state Attorney General Bill Schuette contends the ruling applies only to five inmates who brought the case. Without a new law, the issue has also landed in state courts.

When a bailiff calls the Michigan Court of Appeals to order on a Tuesday morning in mid-October, so many people rise from the often empty gallery, Presiding Judge Michael J. Talbot's eyebrows dart up in surprise.  Technically, today's only case is that of Raymond Curtis Carp, 22, convicted with his older half-brother of a 2006 armed robbery that led to the killing of a St. Clair County woman. Carp was 15; his lawyer is contesting Carp's life sentence, citing the Supreme Court's Miller ruling.

But the courtroom is full because all acknowledge Carp is a proxy for more than 360 other Michigan inmates sentenced to life as teens.  After nearly four hours of arguments, the judges sound stumped. "I can't ignore the fact that there's a crisis pending that requires action," Talbot, the judge, says.  "What are we going to tell them (inmates), that we'll see you in a year or two and maybe something will happen?"

When he adjourns, the room buzzes with talk about what the court will do.  A month later, Talbot's panel ruled that the Supreme Court decision does not apply retroactively and rejected Carp's request; the state Supreme Court is expected to weigh an appeal later this year.

"Whether it be the state court or the federal court or the legislature ... the clear injustice of someone being held under a cruel and unusual sentence won't continue in the state," said Deborah LaBelle, an Ann Arbor attorney leading challenges to Michigan's juvenile sentencing laws. "I think it's too bad we're not there. But I'm still hopeful."

February 17, 2013 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack