March 22, 2014
March madness insights from the Marijuana Law, Policy & Reform blog
Continuing my habit of doing regular round ups of posts from Marijuana Law, Policy and Reform, here is just a sampling of all the exciting mid-March action in recent posts:
"Banning the Bing: Why Extreme Solitary Confinement Is Cruel and Far Too Usual Punishment"
The title of this post is the title of this new article by Elizabeth Bennion now available via SSRN. Here is the abstract:
"To be kept in solitude is to be kept in pain . . . and put on the road to madness." (E.O. Wilson).
The United States engages in extreme practices of solitary confinement that maximize isolation and sensory deprivation of prisoners. The length is often indefinite and can stretch for weeks, months, years, or decades. Under these conditions, both healthy prisoners and those with pre-existing mental health issues often severely deteriorate both mentally and physically. New science and data provide increased insight into why and how human beings (and other social animals) deteriorate and suffer in such environments. The science establishes that meaningful social contacts and some level of opportunity for sensory enrichment are minimum human necessities. When those necessities are denied, the high risks of serious harm apply to all prisoners, no matter how seemingly resilient beforehand.
Given these facts, this Article argues that solitary confinement, as commonly practiced in the United States, is cruel and unusual punishment — whether analyzed under current Supreme Court standards or an improved framework. Furthermore, recently released data on states implementing reforms shows that extreme solitary confinement tactics are counterproductive to numerous policy interests, including public safety, institutional safety, prisoner welfare, and cost efficiency. Both the scientific and policy data suggest possible avenues for effective reform.
Florida state judge balks at 50-year proposed sentence for notable child porn downloader
As reported in this local article, headlined "Sentencing on porn charges delayed for former Univision star," a state judge in Florida is concerned about the lengthy prison sentence being urged by prosecutors for a high-profile defendant. Here are the details:
A hearing to determine the fate of former Univision star Adonis Losada on child pornography possession charges ended without a prison sentence Friday after a judge said she needed more time to decide. Circuit Judge Karen Miller made the rare move after she told prosecutors that their 50-year recommended sentence for Losada was more than double the highest punishment she had seen for similar crimes in recent years — harsher than sentences in cases where defendants actually had contact with victims.
Losada, who has been in jail since his 2009 arrest on dozens of charges capping an undercover investigation, was uncharacteristically quiet Friday. He again refused to have Miller appoint a lawyer to represent him, as he had during his seven-day trial in February, but refrained from the long rants that forced Miller to halt proceedings several times.... Losada played the laughable, clumsy grandmother, Doña Concha, on the Univision variety show Sabado Gigante — a role he played until his 2009 arrest. Univision is the largest Spanish-language television network in the United States.
Assistant State Attorney Gregory Schiller told Miller that the high sentence was proper for Losada because he had more than 1,000 images of child pornography and was actively trying to arrange to have sex with either the niece or daughter of the undercover detective who was posing as another chat-room user. “He has no sympathy, no care for the children who were being raped, being sodomized in those images. He traded them like baseball cards,” Schiller said.
Miller, however, said her research found that the highest sentence for a child pornography possession case in Palm Beach County over the past three years was 18 years. She also noted that prosecutors who charge defendants with dozens of counts in these cases usually carry a fraction of those charges into trial or drop some of the charges upon conviction.
Schiller noted that Losada rejected a 20-year plea deal before trial. “So you want me to penalize him for exercising his constitutional right to go to trial?” Miller asked.
Based on the convictions, Miller could sentence Losada to up to 330 years in prison, Schiller noted. The minimum recommended sentence based on state sentencing guidelines is 571 months — or just under 48 years....
Losada also faces similar charges in Miami and had been under investigation for child pornography possession in California.
March 21, 2014
"Why conservatives should oppose the flawed death penalty, too"
The title of this post is the headline of this notable new Salon commentary authored by Susan Sarandon, Robert Redford and Alex Gibney. Here are excerpts:
For the last two decades, each of us has examined the criminal justice system in our own work. And so with the political debate over capital punishment once again intensifying, we came together this past year to explore the human dramas inside this institution – from cases resulting in exonerations to those still in limbo to those involving indisputable guilt. In the process, we discovered disturbing patterns that reveal systemic problems. These include:
Arbitrariness: A convict’s chances of ending up on death row today depend as much on the crime as on the convict’s race and geographic location. This was most recently documented by a University of Maryland study of Harris County, Texas. This one area in greater Houston has executed more people than any other state in the country. County data showed African American defendants were three times more likely to face the death penalty than similarly situated white defendants. Additionally, African Americans were more than twice as likely as similarly situated whites to receive death sentences from juries....
Law enforcement misconduct: Cases of suppressed evidence often exemplify how the quest for death penalty convictions can foster a culture of unaccountable lawlessness inside the justice system. And as we discovered in our investigation of the John Thompson case in New Orleans, such a culture can become almost impossible to curtail....
Cost: When accounting for pretrial hearings, trials, appeals, security and prison expenses, the death penalty costs taxpayers hundreds of millions of dollars a year. Spending that much money on capital punishment costs lives. Why? Because those resources are being diverted from potentially lifesaving programs that could put more police officers on the street, investigate cold cases and prevent recidivist crime.
Failure to deter crime: If the death penalty was deterring crime, perhaps its costs could be justified. But there is far more evidence that it is failing to deter crime. For example, the aggregate homicide rate in death penalty states has been consistently higher than the rate in non-death-penalty states.Likewise, a survey of the nation’s criminologists found 88 percent saying that capital punishment does not deter crime....
As most recently evidenced by the Obamacare websites, the most straightforward government tasks often involve errors and imperfections. Even the most ardent law-and-order conservatives should be able to admit the same truism applies to the government-administered death penalty. If we cannot blindly trust the government to safeguard health, can we trust it to administer death?
Whether Democratic or Republican, legislators can no longer ignore the fatal flaw in the justice system. At a minimum, we must insist that they find a way to hold prosecutors accountable for misconduct that canl — if intentional — amount to premeditated murder. More broadly, we should insist that lawmakers face the most harrowing question from all of our death row stories: if the institution of capital punishmentl — with consequences so final and irreversible — can never be a perfect instrument of criminal justice, is the institution itself a criminal injustice?
March 21, 2014 in Death Penalty Reforms, Elections and sentencing issues in political debates | Permalink | Comments (11) | TrackBack
"Legitimacy and Federal Criminal Enforcement Power"
The title of this post is the title of thiis new paper by Lauren Ouziel now available via SSRN. Here is the abstract:
A defining feature of criminal federalism is extreme disparities in case outcomes across state and federal forums. All else being equal, prosecution in the federal forum entails a significantly higher likelihood of conviction, and a higher penalty. But why do such disparities exist? Conventional explanations point to differences among sovereigns’ legal rules, resources and dockets. These understandings, while valid, neglect to account for a less-tangible source of federal criminal power: legitimacy.
“Legitimacy” refers to the concept, refined through decades of empirical research, that citizens comply with the law, and defer to and cooperate with legal authority, when they perceive both the laws and the authorities to be fair. A legitimacy-based exploration of the federal criminal justice system significantly enriches our understanding of the sources of federal criminal power. Distilling those sources, moreover, reveals surprising and counterintuitive implications: to emulate the sources of federal legitimacy in local systems, we need more localized criminal justice.
March 20, 2014
ACLU of Washington State reports huge drop in low-level marijuana offense court filings after legalization initiative
As detailed in this press release, the ACLU of Washington State has some new data on one criminal justice reality plainly impacted by marijuana reform. Here are the details:
Passed by Washington voters on November 6, 2012, Initiative 502 legalized marijuana possession for adults age 21 and over when it went into effect 30 days later. New data show the law is having a dramatic effect on prosecutions for misdemeanor marijuana possession offenses in Washington courts. The ACLU of Washington’s analysis of court data, provided by the Administrative Office of the Courts, reveals that filings for low-level marijuana offenses have precipitously decreased from 2009 to 2013:• 2009 – 7964• 2010 – 6743• 2011 – 6879• 2012 – 5531• 2013 – 120
“The data strongly suggest that I-502 has achieved one of its primary goals – to free up limited police and prosecutorial resources. These resources can now be used for other important public safety concerns,” says Mark Cooke, Criminal Justice Policy Counsel for the ACLU of Washington....
Although the overall number of low-level marijuana offenses for people age 21 and over has decreased significantly, it appears that racial bias still exists in the system. An African American adult is still about three times more likely to have a low-level marijuana offense filed against him or her than a white adult.
Initiative 502 legalized possession of up to one ounce of marijuana for adults 21 and over. However, possession of more than an ounce, but no more than 40 grams, remains a misdemeanor. Exceeding the one-ounce threshold is a likely explanation for the presence of 120 misdemeanor filings against adults in 2013.
A number of folks on this blog who seem opposed to marijuana reform are often quick to (rightly) note that very few people are serving prison sentence for low-level marijuana offenses. But this data provides a notable reminder that, even in a liberal state with medical marijuana legalized, many thousands of persons can still get arrested and prosecuted for misdemeanor marijuana possession offenses unless and until a state fully legalizes marijuana possession.
If it is reasonable to estimate that it costs around $2000 to process each of these misdemeanor possession cases (which may be a conservative estimate based on some numbers crunched here), the elimination of over 5,000 pot arrests could be alone saving Washington State more than $10 million each year. That amount is perhaps not all that much money in a state with a nearly $40 billion annual budget, but it would be enough to double the monies the state spends on a state seed program called "Building for the Arts." Though my biases are showing here, I generally think citizens are likely to get a better civic return on their tax dollars when state money is spent helping to build for the arts rather than busting a few thousand potheads.
Cross posted at Marijuana Law, Policy & Reform
Illinois Supreme Court deems Miller ruling substantive and thus retroactive
As reported in this Chicago Tribune piece, headlined "Ruling allows new hearings for 100 convicted killers," earlier today the Illinois Supreme Court "ruled that state prison inmates serving life without parole for murders they committed years ago as juveniles will receive new sentencing hearings." Here is more about the ruling:
The ruling means that the inmates, some of whom were as young as 14 when they committed murder, will be allowed to present evidence to mitigate their responsibility and obtain a shorter sentence that would allow them to be set free at some point. Prosecutors will be able to offer to try to persuade judges to re-impose the life sentences....
With the ruling, Illinois joins states such as Iowa, Massachusetts and Texas in deciding a 2012 ruling from the U.S. Supreme Court applies to prisoners whose crimes were committed before the ruling. Minnesota, Pennsylvania and Louisiana are among the states that have refused....
“A minor may still be sentenced to natural life imprisonment without parole so long as the sentence is at the trial court’s discretion rather than mandatory,” the Illinois Supreme Court wrote in today’s unanimous opinion written by Justice Charles Freeman.
The ruling in Illinois v. Davis, No. 115595 (Ill. March 20, 2014) (available here), provides this account of its retroactivity assessment:
As the Iowa Supreme Court recognized: “From a broad perspective, Miller does mandate a new procedure. Yet, the procedural rule for a hearing is the result of a substantive change in the law that prohibits mandatory life-without-parole sentencing.” State v. Ragland, 836 N.W.2d 107, 115 (Iowa 2013). In other words, Miller places a particular class of persons covered by the statute — juveniles — constitutionally beyond the State’s power to punish with a particular category of punishment — mandatory sentences of natural life without parole. See Miller, 567 U.S. at ___, ___, 132 S. Ct. at 2464, 2468; Diatchenko v. District Attorney for the Suffolk District, 1 N.E.3d 270, 277 (Mass. 2013). Since Miller declares a new substantive rule, it applies retroactively without resort to Teague. See Schriro, 542 U.S. at 351-52 & n.4.
Also, we find it instructive that the Miller companion case, Jackson v. Hobbs, arose on state collateral review. Notwithstanding its finality, the Court retroactively applied Miller and vacated Jackson’s sentence. While our analysis is independent as a matter of Illinois law, the relief granted to Jackson under Miller tends to indicate that Miller should apply retroactively on collateral review. See People v. Williams, 2012 IL App (1st) 111145, ¶ 54; People v. Morfin, 2012 IL App (1st) 103568, ¶ 57.
We observe that defendant and several amici assert that this court should depart from Teague and adopt a different rule of retroactivity. However, we do not rely on Teague in our analysis because we view Miller as a new substantive rule, which is outside of Teague rather than an exception thereto. Accordingly, we need not and do not address this argument. See People v. Campa, 217 Ill. 2d 243, 269-70 (2005) (reviewing court will not decide nonessential issues or render advisory opinions).
March 20, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
"Drug Dealers Aren't to Blame for the Heroin Boom. Doctors Are."
The title of this post is the provocative headline of this interesting new article from The New Republic. Here is a portion of how the piece gets started:
Heroin epidemics don’t come and go randomly, like the McRib. They have clearly identifiable causes — and in this case, by far the largest cause is doctor -prescribed pills. Every year since 2007, doctors have written more than 200 million prescriptions for opioid painkillers. (Consider that there are 240 million adults in the country.) And about four in five new heroin addicts report that they got addicted to prescription pills before they ever took heroin....
Most people who try opiates don’t get addicted. But enough do. Since 2002, the total number of monthly heroin abusers has doubled to 335,000 nationwide. Some of the addicts get the pills through a well-meaning doctor or dentist, and many others swipe leftover pills from their friends or family members. The result for an addict is the same: Once the pills or money run out, heroin is still available — and cheap. At about $10 per hit, it can be half the street cost of pills.
“We seeded the population with opiates,” says Robert DuPont, an addiction doctor who served as drug czar under Presidents Nixon and Ford and who is now a harsh critic of opiate over-prescription. The supply shock from easy access to prescription drugs has pushed heroin use out of cities and into rural and suburban and middle-class areas. Massachusetts reported a staggering 185 heroin deaths outside its major cities since November, and Peter Shumlin, the governor of Vermont, spent his entire “state-of-the-state” address talking about the nearly eightfold increase in people seeking opiate treatment there since 2000. “What started as an OxyContin and prescription-drug addiction problem in Vermont has now grown into a full-blown heroin crisis,” he said.
In addition to providing an important reminder about the dynamic (and sometimes unpredictable) intersection of medical care, drug abuse and the "war on drugs," this piece also suggests a reason why we might not want to readily assume (or trust) that the medical profession will be an effective and healthy intermediary when debating how best to reform marijuana laws and regulate the use of cannabis-based products as a pain relievers.
Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball
I am pleased to see that my discussion of the Antwuan Ball case in this recent post titled "DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims," has now generated a pair of thoughtful posts at The Volokh Conspiracy:
Paul Cassell got the ball rolling via this post titled "Should a drug dealer acquitted of running a drug ring be sentenced for running a drug ring?", which ends with this paragraph:
In short, when a judge sentences on the basis of acquitted conduct, he is acting with far more information than is typically available at sentencing. I see no reason to be worried about Ball’s sentence — or, more generally, the fact that judges apply ordinary burdens of proof when resolving factual disputes at sentencing. I am more worried about entangling these sentencing proceedings with ever-mounting procedural requirements that will make it difficult for judges to craft appropriate sentences — lenient, harsh, or somewhere in between. The D.C. Circuit got this one right.
Will Baude chimed in via this post titled "The real constitutional problem with Antwuan Ball’s sentence," which concludes with these thoughts:
As Scalia put it in Rita, “… there will inevitably be some constitutional violations under a system of substantive reasonableness review, because there will be some sentences that will be upheld as reasonable only because of the existence of judge-found facts.” He then reiterated this point in Gall. (“The Court has not foreclosed as-applied constitutional challenges to sentences. The door therefore remains open for a defendant to demonstrate that his sentence, whether inside or outside the advisory Guidelines range, would not have been upheld but for the existence of a fact found by the sentencing judge and not by the jury.”)
This isn’t necessarily to criticize this D.C. Circuit panel; the court concluded that Scalia’s arguments have already been rejected by D.C. Circuit precedent, and maybe that is right. But they haven’t been rejected by the Supreme Court. The court upheld the general use of acquitted conduct upheld in United States v. Watts, but this is a distinct problem (and I’m writing this post because the two problems are often confused).
Texas officials get hooked up by special secret (capital) drug dealer
As reported in this AP story, headlined "Texas finds new execution drug supply," Texas officials seem to have special abilities to acquire the drugs needed to continue with executions. Here are the (cloak-and-dagger?) details:
Texas has obtained a new batch of the drugs it uses to execute death row inmates, allowing the state to continue carrying out death sentences once its existing supply expires at the end of the month. But correction officials will not say where they bought the drugs, arguing that information must be kept secret to protect the safety of its new supplier. In interviews with The Associated Press, officials with the Texas Department of Criminal Justice also refused to say whether providing anonymity to its new supplier of the sedative pentobarbital was a condition of its purchase.
The decision to keep details about the drugs and their source secret puts the agency at odds with past rulings of the state attorney general's office, which has said the state's open records law requires the agency to disclose specifics about the drugs it uses to carry out lethal injections. "We are not disclosing the identity of the pharmacy because of previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process," said Texas Department of Criminal Justice spokesman Jason Clark.
The dispute in the state that executes more inmates than any other comes as major drugmakers, many based in Europe, have stopped selling pentobarbital and other substances used in lethal injections to U.S. corrections agencies because they oppose the death penalty. Until obtaining its new supply from the unknown provider, Texas only had enough pentobarbital to continue carrying out executions through the end of March. Earlier this week, a court rescheduled two executions set for this month in Oklahoma — another leading death penalty state — because prison officials were having trouble obtaining the drugs, including pentobarbital, needed for its lethal injections.
Such legal challenges have grown more common as the drug shortages have forced several states to change their execution protocols and buy drugs from alternate suppliers, including compounding pharmacies that are not as heavily regulated by the U.S. Food and Drug Administration as more conventional pharmacies....
Alan Futrell, an attorney for convicted murderer Tommy Sells, whose scheduled April 3 execution would make him the first to be put to death with Texas' new drug supply, said the issue could become fodder for legal attempts to delay his sentence. "This might be good stuff," he said. "And the roads are getting very short here."
But Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center, an anti-capital punishment organization, said it was doubtful that Texas would get to a point where a lack of drugs led officials to fully suspend capital punishment. "There are a lot of drugs, and Texas can be creative in finding some," he said.
Texas' current inventory of pentobarbital, the sedative it has used in lethal injections since 2012, will expire April 1. The state executed one inmate, Ray Jasper, on Wednesday evening and has scheduled executions for five more, including one next week. That execution, like Wednesday's, will draw from the existing stockpile purchased last year from a suburban Houston compounding pharmacy, Clark said. The new batch of drugs presumably would be used for three Texas inmates set to die in April, including Sells, and one in May.
Sixteen convicted killers were executed in Texas last year, more than in any other state. Jasper's execution was Texas' third this year, bringing the total to 511 since capital punishment in the state resumed in 1982. The total accounts for nearly one-third of all the executions in the U.S. since a 1976 Supreme Court ruling allowed capital punishment to resume....
Policies in some states, like Missouri and Oklahoma, keep the identities of drug suppliers secret, citing privacy concerns. Clark, in refusing AP's request to answer any specific questions about the new batch of drugs, said after prison officials identified the suburban Houston compounding pharmacy that provided its existing supply of pentobarbital, that pharmacy was targeted for protests by death penalty opponents. It sought to have Texas return the pentobarbital it manufactured, and prison officials refused.
Texas law does not specifically spell out whether officials can refuse to make the name of drug suppliers public, but Texas Attorney General Greg Abbott's office has on three occasions rejected arguments by the agency that disclosing that information would put the drug supply and manufacturers at risk. In a 2012 opinion, his office rejected the argument that disclosing the inventory would allow others to figure out the state's suppliers, dismissing the same kind of security concerns raised this week....
Clark said the prison agency planned to ask Abbott to reconsider the issue. "We're not in conflict with the law," Clark said. "We plan to seek an AG's opinion, which is appropriate in a situation like this, and the AG's office will determine whether it's releasable."
"Sentencing in Tax Cases after Booker: Striking the Right Balance between Uniformity and Discretion"
The title of this post is the title of this new paper by Scott Schumacher now available via SSRN. Here is the abstract:
It has been nearly ten years since the Supreme Court’s seminal decision in United States v. Booker, in which the Court invalidated the mandatory application of the United States Sentencing Guidelines. In the cases that followed, the Court addressed subsidiary issues regarding the application of the Guidelines and the scope of appellate review. However, despite — or perhaps because of — these opinions, there is little consensus regarding the status and extent of appellate review, as well as the discretion afforded sentencing courts. More troubling, what consensus there is seems to permit judges to impose any sentence they wish, as long as the appropriate sentencing procedures are followed. As a result, we are in danger of returning to “the shameful lack of parity, which the Guidelines sought to remedy.”
The Sentencing Reform Act and the Sentencing Guidelines were designed to reduce disparity in sentencing and to reign in what one commentator described as a “lawless system.” However, the Guidelines as ultimately conceived drastically limited the sentencing judge’s ability to impose a sentence that was appropriate for the conduct and culpability of the defendant, creating a different kind of sentencing disparity. The current, post-Booker system provides more guidance than the pre-Guidelines system, but permits sentencing judges to disregard the Guidelines and develop their own sentencing policy. As a result, rather than having a system that allows for sentences to be tailored to individual defendants, the current system allows sentences to be imposed based on the penal philosophy of individual judges. This will inevitably lead to unwarranted sentencing disparity.
This article traces the recent history of criminal sentencing and, relying on the influential works of John Rawls and H.L.A. Hart on theories of punishment, argues for a better system that allows for both guidance to sentencing judges and appropriately individualized sentencing. My recommendation, although equally applicable to any federal sentence, will be examined through the lens of tax sentencing.
March 20, 2014 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
March 19, 2014
Idaho officials struggle to calculate capital case costs
As reported in this new AP article, headlined "Idaho death penalty cost report finds limited data," officials in The Gem State has been finding it hard to do a complete accounting of capital case costs. Here are the details:
A new report from Idaho's state auditors shows that sentencing a defendant to life in prison without parole is less expensive than imposing the death penalty. But the Office of Performance Evaluations also found that the state's criminal justice agencies don't collect enough data to determine the total cost of the death penalty. The report was presented to the Joint Legislative Oversight Committee on Wednesday by Hannah Crumrine and Tony Grange.
Idaho is one of 32 states with the death penalty, but two of those states — Oregon and Washington — have moratoriums on executions. Idaho has executed 29 people since 1864, but only three since 1977. Keith Eugene Wells was executed in 1994, Paul Ezra Rhoades was executed in 2011 and Richard Leavitt was executed in 2012.
It's difficult to determine just how much imposing the death penalty costs, Crumrine told the committee, in part because most of the needed data is unavailable. Law enforcement agencies typically don't differentiate between the costs of investigating death penalty murder cases and non-death penalty murder cases, and jail and prison staffers don't track the transport costs to bring a condemned prisoner to court cases versus a regular prisoner.
The researchers were able to determine some costs, however: Eleven counties have been reimbursed more than $4.1 million for capital defense costs since 1998, and the state appellate public defender's office has spent nearly half a million dollars on death penalty cases between 2004 and 2013. The Idaho Department of Correction spent more than $102,000 on executing Leavitt and Rhoades.
In any case, it's clear that death penalty cases cost more than sentencing an offender to life without parole, according to the report, in part because it takes longer for the appeal process to come to an end in death penalty cases. And the ultimate penalty is seldom imposed: The report found that of the 251 first-degree murder cases filed from 1998 to 2013, prosecutors sought the death penalty in 42 and it was imposed in just seven cases.
Of the 40 people sentenced to death in Idaho since the death penalty was reinstated by the U.S. Supreme Court in 1977, 21 have had their sentences overturned on appeal or are no longer sentenced to death for other reasons, 12 are still appealing their cases and four died in prison. Just three were executed during that time span.
Idaho Gov. C.L. "Butch" Otter wrote a letter responding to the report, stating that he believes state agencies have been diligent in accounting for and containing costs. Otter wrote that though the report raises the question of whether tax dollars are spent wisely on capital punishment, he continues to support the death penalty laws.
Should sex offenders be prohibited from winning lottery jackpots?
The question in the title of this post is prompted by this new FoxNews report headlined "Massachusetts official seeks to prevent sex offenders from collecting large lotto payouts." Here are excerpts:
A Massachusetts state senator is pushing to close a lottery loophole that allows sex offenders to pocket huge payouts and potentially use their winnings to buy their victims' silence.
"Should someone on the sex offender list purchase a ticket and win, I think we should find a way from preventing them from enjoying the proceeds," state Sen. Richard Moore told The Boston Herald. "This doesn't smell right to start with."
Moore's concern came as it was revealed that a Level 3 serial child predator walked away with a $10 million win in 2008 and used his winnings to buy gifts for a boy he was allegedly abusing. Daniel T. Snay, 62, was convicted four separate times of indecent assault and battery on a person 14 years or older from 1974 to 1987. He pleaded not guilty Monday at his arraignment on charges including indecent assault and battery on a child under the age of 14 and other charges....
"I guess he bought my silence by giving me gifts and stuff," the boy, now 16, told police, according to a transcript released in court, the paper reported. The alleged abuse occurred about the same time he won the lottery and it continued until March 1, 2012, the report said.
Police Chief Jeffrey Lourie said Snay's "windfall aided the commission of the crimes" by helping him gain favor with people. Sam Goldberg, Snay's attorney, told the paper the allegations are "very easy to bring ... especially when you know this is someone who’s already been a lightning rod ... because of the lottery winnings."
The director of the state's lottery told the paper that winnings can be intercepted by the IRS or Department of Revenue, but a payout cannot be withheld “based on someone’s character."
"Efficiency shouldn’t trump effectiveness in drug sentencing"
The title of this post is the headline in the Washington Post given to this letter from lawprof Mark Osler in response to that paper's recent coverage of prosecutorial opposition to proposals for federal drug sentencing reform. Here is the full text of the letter as published:
As a former federal prosecutor who now trains criminal lawyers, I read with great interest the March 13 front-page article “Prosecutors fight plan to lower drug sentences.” At best, the objections by some federal prosecutors to sentencing reform ring hollow. At worst, they echo that most unfortunate plea of employee organizations: Keep our jobs easy.
Mandatory minimums make it easy to plead a case out, eliminating the effort and expense of trial. That efficiency is worthwhile if a problem is being solved, but there is no evidence that the mass incarcerations created by mandatory minimums solve any problem. If they were working, the supply of illegal narcotics would constrict and the price would go up, but some narcotics are cheaper now than 30 years ago.
The anti-reformers argue that mandatory minimums “provide a critical tool to dismantle drug networks by getting cooperation from lower-level defendants and building cases that move up the criminal chain of command.” It is a worthwhile argument, if true, but U.S. Sentencing Commission data have shown that the overwhelming majority of federal cocaine convicts are low-level actors — street dealers, couriers and the like.
Mandatory minimums do create efficiency. But when that efficiency is primarily used to force pleas from low-level defendants without solving a problem, it is just bullying.
Some prior posts about federal prosecutorial perspectives on sentencing reform:
- "Some prosecutors fighting effort to eliminate mandatory minimum prison sentences"
- Effective Heritage analysis of federal MMs and statutory reform proposals
- Are we "headed for a crime-riddled future" without mandatory minimums?
- "Prosecutors Wrong to Oppose Sentencing Reform"
- Attorney General to testify about drug guideline reform before US Sentencing Commission
- "With Holder In The Lead, Sentencing Reform Gains Momentum"
- "Holder and Republicans Unite to Soften Sentencing Laws"
- Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
- Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?
- Very eager to provide very thorough and fair coverage of prosecutors' views on Smarter Sentencing Act
Oklahoma court postpones two executions due to drug shortages
As reported in this AP article, an "Oklahoma court on Tuesday rescheduled a pair of executions set for this week and next, so state prison officials will have more time to find a supply of drugs for the lethal injections." Here is more about the latest challenge facing a state trying to carry out a death sentence:
The decision came in a lawsuit in which two inmates had sought more information about the drugs that would be used to execute them later this month. The inmates had sought a stay of their executions, but the Oklahoma Court of Criminal Appeals said that request was moot because the state Department of Corrections doesn't have enough drugs on hand to carry out their death sentences. "The attorney general's attestations give this court no confidence that the state will be able to procure the necessary drugs before the scheduled executions are carried out," the court wrote.
Oklahoma and other states that have the death penalty have been scrambling for substitute drugs or new sources for drugs for lethal injections after major drugmakers — many based in Europe with longtime opposition to the death penalty — stopped selling to prisons and corrections departments. While the judges didn't rule on the merit of the inmates' stay request, they pushed their executions back a month — Clayton Lockett to April 22 and Charles Warner to April 29....
Oklahoma Attorney General Scott Pruitt said he is upset the executions have been delayed, but said Warner and Lockett will ultimately still be punished for their crimes. "This delay is not about the facts of the case, nor does it seek to overturn the convictions of these two murderers. Instead, it's about outside forces employing threats, intimidation, and coercion to keep the state of Oklahoma from imposing the punishment handed down for these heinous crimes," Pruitt said. "It's not a matter of if these punishments will be carried out, but it is only a matter of when."
Lockett, who was to be executed Thursday, was found guilty in the 1999 shooting death of a 19-year-old Perry woman. Warner was set to be executed on March 27 for the 1997 rape and murder of his girlfriend's 11-month-old daughter. In their lawsuit, Lockett and Warner said they feared the drugs to be used might be contaminated and cause them undue harm, in violation of a constitutional guarantee against cruel or unusual punishment. A hearing in Oklahoma County District Court is set for March 26 on whether it's proper for the state to keep execution procedures behind a "veil of secrecy."
"We are relieved that the OCCA's decision allows Mr. Warner and Mr. Lockett to proceed on their constitutional challenge to Oklahoma's execution-secrecy law and execution protocol," Madeline Cohen, a federal public defender who previously represented Charles Warner, said. "We hope that no execution will go forward until we are able to obtain full information about how Oklahoma intends to conduct those executions, including the source of its execution drugs."
In briefs filed with the Court of Criminal Appeals on Monday, the state attorney general's office said prison officials were having difficulty finding pentobarbital, a sedative, and vecuronium bromide, a muscle relaxant. The state also uses potassium chloride to stop an inmate's heart. "The state declared it had pursued 'every feasible option to obtain the necessary execution drugs' but its 'Herculean' efforts so far had been unsuccessful," the court wrote.
State lawyers warned that, if it is required to find different drugs, it would have to write a new execution protocol that would likely face another court challenge. Judge Gary L. Lumpkin dissented Tuesday's decision. He said the inmates had failed to meet their burden for a stay but said the court shouldn't have granted a delay because the state hadn't asked for one.
March 18, 2014
"Prisoners Could Serve '1,000 Year Sentences In 8.5 Hours' In The Future"
The title of this post is the headline of this awesome new article that an awesome former student sent my way. Here are excerpts:
Future biotechnology could be used to trick a prisoner's mind into thinking they have served a 1,000 year sentence, a group of scientists have claimed. Philosopher Rebecca Roache is in charge of a team of scholars focused upon the ways futuristic technologies might transform punishment. Dr Roache claims the prison sentence of serious criminals could be made worse by extending their lives.
Speaking to Aeon magazine, Dr Roache said drugs could be developed to distort prisoners' minds into thinking time was passing more slowly. "There are a number of psychoactive drugs that distort people’s sense of time, so you could imagine developing a pill or a liquid that made someone feel like they were serving a 1,000-year sentence," she said.
A second scenario would be to upload human minds to computers to speed up the rate at which the mind works, she wrote on her blog. "If the speed-up were a factor of a million, a millennium of thinking would be accomplished in eight and a half hours... Uploading the mind of a convicted criminal and running it a million times faster than normal would enable the uploaded criminal to serve a 1,000 year sentence in eight-and-a-half hours. This would, obviously, be much cheaper for the taxpayer than extending criminals’ lifespans to enable them to serve 1,000 years in real time."...
"To me, these questions about technology are interesting because they force us to rethink the truisms we currently hold about punishment. When we ask ourselves whether it’s inhumane to inflict a certain technology on someone, we have to make sure it’s not just the unfamiliarity that spooks us," Dr Roache said.
"Is it really OK to lock someone up for the best part of the only life they will ever have, or might it be more humane to tinker with their brains and set them free? When we ask that question, the goal isn’t simply to imagine a bunch of futuristic punishments — the goal is to look at today’s punishments through the lens of the future."
Despite legislative abolition, Connecticut jury imposes death sentence on triple murderer
This local article from Connecticut reports on the outcome of the last capital case that was still in the works when the state abolished, prospectively only, the punishment of death. The article is headlined "Roszkowski gets death row for triple murder," and here are the basics:
A career burglar from Trumbull became the 12th and last resident of Connecticut's death row when a jury found he should die by lethal injection for the execution-style murders of a mother, her 9-year-old daughter and a Milford landscaper. "I won't have any trouble getting to sleep tonight because I know we did the right thing," said juror Cedric Grech, shortly after a state Superior Court jury on Monday handed down the penalty for Richard Roszkowski.
"Right now I'm emotionally drained," said juror Ladawn Newton. "But I know that mother, her little girl and Mr. Gaudet and their families can finally have peace in their lives, and that makes me feel good that we made the right decision."
The fact that he will now be in the history books -- albeit for one of the worst crimes in the city's history -- didn't appear to affect the 48-year-old Roszkowski, who sat emotionless at the defense table as the verdict was read by Court Clerk Thomas Saint John.
It was certainly not lost on his lawyer, Michael Courtney, who had bragged in the courtroom during the two-month trial that he had never lost a Connecticut death case. Courtney's face turned bright red and he shook his head mouthing, "No, no, no" as the verdict was announced. Meanwhile, his co-counsel, Corrie-Ann Mainville, moved up to Roszkowski and began massaging his back and shoulder, whispering in his ear.
"This verdict was for Kylie," said C. Robert Satti Jr., who prosecuted the case along with Margaret Kelley, referring to the murdered girl. Satti's father, C. Robert Satti Sr., had successfully prosecuted the last man executed in this state, serial killer Michael Ross, who died by legal injection in 2005 after 20 years on death row. "It was an extremely conscientious jury that weighed the facts and the evidence and came to the appropriate verdict," Satti said.
Several jurors said it was the brutality Roszkowski showed the girl that earned him the death penalty. "There was just no excuse for what he did to the little girl," Grech said....
In a strange twist in the case, the president of Poland -- Roszkowski is of Polish descent -- is demanding that the U.S. not execute him; the courts have not yet addressed the issue.
In April 2012, Gov. Dannel P. Malloy signed a law eliminating the death penalty, but kept it in place for the 11 people now on death row. The Roszkowski case, which was pending at the time the law was signed, is the state's last death-penalty trial.
As a matter of law, policy and practice, what should be the "offense" a sentencer considers?
The question in the title of this post is arguably the most fundamental and important question (and one which is conceptually and practically quite difficult) for any and all sentencing systems. And yet, this question seems rarely examined or even discussed except when there is controversy over issues like the use of acquitted or uncharged conduct in a guideline sentencing system. Because I will be exploring this question with my sentencing students in coming classes, I am quite eager to have readers of this blog share their perspectives.
Some important consensus realities help explain why the question is conceptually and practically quite difficult: (1) nearly all sentencing systems and observers agree that the offense(s) of conviction must be a necessary and critical part of the "offense" to be considered at sentencing, but (2) nearly all sentencing systems and observers agree that at least some non-conviction, offense-related factors (such as motive and leadership role) should also be considered sentencing. In other words, there is a consensus view that the "offense(s) of conviction" are a central but non-exclusive part of what I would call the "offense for sentencing." That consensus, in turn, presents critical follow-up questions concerning just how a sentencing system (A) can/should define and process the "offense(s) of conviction" and (B) can/should allow, structure and/or require of any variety of non-conviction, offense-related factors. Some of the most challenging and controversial issues of modern sentencing can often hinge on matters related to these follow-up questions/categories A and B.
For example, under category A, a sentencing system must consider cases in which a defendant is convicted of multiple offenses and decide if a sentencer must or should group multiple convictions for sentencing consideration or should instead consider each offense distinctly and then combine in some way the sentence determined separately for each offense. Also under category A are hard questions about offenses that have as a fundamental element the requirement of a serious prior conviction — like failure to register as a sex offender or felon in possession of a firearm. A sentencing system has to consider if a sentencer must or should view the nature and circumstances of the predicate prior offense as important in consider the new offense of conviction.
Hard issues raised under category B are even more common and often much more controversial. For example, if/when a defendant has been charged but not convicted of offense-related conduct either because of a jury acquittal or a plea deal, can/should/must a sentencer consider (or be barred from considering) facts and factors related to charged but unconvicted conduct? In addition, just how much weight can/should/must a sentencer give to offense-related factors that are rarely part of a formal conviction (factors like motive and leadership role and victim impact), but that are often thought central to understanding how truly serious any specific offense really is.
"The Criminal Court Audience in a Post-Trial World"
The title of this post is the title of this interesting new article by Jocelyn Simonson available via SSRN. Here is the abstract:
Legal scholars today criticize the lack of public participation in the criminal justice system as a barrier to democratic accountability, legitimacy, and fairness. When searching for solutions, these critiques bypass consideration of the audience members who attend criminal court each day — people who fill courtrooms to watch the cases in which their friends, family, and community members have been either victimized or accused of a crime. This is a mistake, for the constitutional function of the audience is one uniquely suited to help restore public participation and accountability in a world without juries.
The Constitution protects the democratic function of the local audience through both the Sixth Amendment right to a public trial and the First Amendment right of the public to attend criminal court. This Article argues that these rights apply with full force in the routine criminal courtroom, in which arraignments, pleas, and sentencings, rather than trials, are taking place. Recognizing and enforcing the constitutional protection of the audience will require local criminal courts to grapple with widespread issues of public exclusion from the courtroom. Doing so has the potential to play a part in reinvigorating the lost connection of the public to the realities of routine criminal justice, linking a generally disempowered population to mechanisms of government accountability and social change.
Infomercial celebrity to be selling in federal prison for next decade
As reported in this local article, headlined "TV pitchman Kevin Trudeau sentenced to 10 years in prison," a salesman many have seen on late-night television will now only be seen in federal prison for a long time. Here are the sentencing details:
When TV huckster Kevin Trudeau stood in a packed federal courtroom to make one final sales pitch Monday, he hardly resembled the tanned, dapper figure seen hawking miracle diets and natural cancer cures on so many late-night infomercials. After spending four months in jail for contempt of court, Trudeau’s trademark jet black coif was thin and gray. His usual tailored suit was replaced by rumpled orange jail clothes. Even his typical air of defiance had turned to contrition, a change he said washed over him during his sleepless first night in custody.
“If I ever write a book again, if I ever do another infomercial again, I promise no embellishment, no puffery and absolutely no lies,” Trudeau told U.S. District Judge Ronald Guzman in a remorseful tone. “I know going forward I will be a better person.”
But the judge wasn’t buying a word. Moments after Trudeau’s plea for leniency, a visibly irritated Guzman sentenced the best-selling author to 10 years in prison, citing Trudeau’s decades-long history of fraud and calling him “deceitful to the core.”
“He has treated federal court orders as if they were mere suggestions...or at most impediments to be sidestepped, outmaneuvered or just ignored,” Guzman said in handing down an unusually lengthy prison term for a contempt conviction. “That type of conduct simply cannot stand.”...
Trudeau has been jailed since Nov. 12 when he was convicted by a federal jury of criminal contempt for lying in several infomercials about the contents of his hit book, “The Weight Loss Cure 'They' Don't Want You to Know About.” Prosecutors said he ignored a previous court order by describing the program as easy when it actually called for punishing calorie restrictions and a crippling list of food restrictions. Meanwhile, U.S. District Judge Robert Gettleman has repeatedly found Trudeau in civil contempt for failing to pay anything toward a $37.6 million fine imposed by the Federal Trade Commission in spite of continuing to live a lavish lifestyle.
On Monday, prosecutors cited Trudeau’s history of fraud that goes back to a state conviction in 1984. “He is a habitual liar and a fraudster,” Assistant U.S. Attorney April Perry said. As a result of the size of the fraud and Trudeau’s two previous felony convictions, federal sentencing guidelines called for 20 to 25 years in prison, a range that Guzman said he thought was “appropriate.” However, he eventually agreed with prosecutors who said a 10-year term was sufficient since -- unlike in many fraud cases -- no one who bought Trudeau’s book was financially ruined.
Trudeau’s attorneys argued that prosecutors vastly inflated the amount of harm done by Trudeau’s misleading infomercials, saying many buyers were satisfied with the weight loss book. In his lengthy statement to the court, Trudeau said he has been “completely wiped out” financially and that he and his wife Nataliya Babenko, 26, are “effectively homeless.” He said his time at the Metropolitan Correctional Center has changed his perspective and led him to realize he had made many errors. While he wouldn’t wish incarceration on anyone, the experience has wound up being “one of the best, most positive things in my life,” Trudeau said.
“In the past four months I have been stripped of all ego, defiance, arrogance and pride and for that I am thankful,” Trudeau said as he stooed at a lectern and read from typed notes.
But Judge Guzman was unimpressed, noting that in his three decades of fraud, Trudeau had taken on more than a dozen different aliases and even used his mother’s Social Security number to perpetrate a scam. “That doesn’t happen by accident, and it doesn’t happen by good intentions,” the judge said. “It is a reflection of a person’s character.”
March 17, 2014
You be the federal sentencing judge: months, years or decades in prison for notable Medicaid fraudsters?
White-collar crimes, especially when there are few if any individual victims, oft raise especially tough and dynamic issues concerning how to weigh and balance offense- and offender-related sentencing consideration. These realities seem especially true in an interesting federal health care fraud case from South Carolina described in this local article. The piece is headlined "As Medicaid fraud sentencing nears, SC youth agency founder seeks leniency so he can be positive role model for his children," and here are excerpts:
The founder of the Helping Hands Youth and Family Services agency, guilty of bilking the federal Medicaid program for millions of dollars, has asked a federal judge for leniency when he is sentenced Wednesday for six felony charges related to health care fraud.
Truman Lewis — who founded the for-profit youth mentoring agency that had offices in Conway, Georgetown, Columbia and Rock Hill — said in court documents that he still maintains his innocence and deserves no more than a six-month prison sentence.
Lewis and his brother, Norman Lewis, were found guilty in an August jury trial of conspiracy to commit health care fraud, conspiracy to commit money laundering and four counts of wire fraud. They each face up to 10 years in prison for committing health care fraud and up to 20 years in prison for the money laundering and wire fraud charges. Both men will be sentenced Wednesday in Charleston by Judge Richard Gergel.
The jury found that the Lewises billed Medicaid for $8.9 million — much of it fraudulent — over a nearly two-year period starting in 2009, and then used the money to buy luxury cars, a beachfront condominium and homes. At the time of their indictment in June 2012, the Lewises had $1 million in certificates of deposit and bank accounts. The jury determined that all of those assets can be seized to help pay back the money taken through fraudulent billings.
Helping Hands — which was supposed to provide mentoring services to low-income children with family or behavioral problems — had hundreds of youth clients in Horry and Georgetown counties. Those clients were referred to the agency by the state’s Department of Social Services and area school officials, even though the agency’s counselors were not licensed.
Truman Lewis, in a court document filed on Friday, said he “may have made mistakes along the way but does not believe he did so with a malevolent intent and is wanting to work his way out of this position he finds himself in.”
At age 35, Truman Lewis is the oldest of 14 siblings who were “sometimes forced to live on food stamps,” the court document states, adding that the youth mentoring agency he founded allowed him “to pave the way for his siblings in school and work to show them there was a way out of poverty.” Truman Lewis said he never should have faced criminal charges because his agency had entered into a repayment plan with state officials who oversee the Medicaid program before any charges were filed. He said a long prison sentence would be detrimental to the government because he would not be able to work and pay restitution.
If the court allows Truman Lewis “to serve a sentence below the guidelines range, he may be able to seek employment to help work on restitution to the government,” the court document states. Truman Lewis said he also wants a minimum prison sentence so he and his wife can continue to be positive influences on their four children. “The entire family is extremely religious and attend church regularly, sometimes four to five times weekly as a family,” the court document states, adding that Truman Lewis and his wife “have a deep abiding belief in their religious convictions and are trying to pass their beliefs on to the children.”
David McCann, a court-appointed lawyer representing Norman Lewis, filed a document Monday asking for leniency for his client, but the filing does not recommend a specific prison sentence. A lengthy sentence for the 32-year-old Norman Lewis “interrupts his young family and presents the unnecessary cost to taxpayers for confinement and treatment, if available,” McCann said in the court filing.
Norman Lewis’ previous court appearances have been marred by outbursts and repeated requests to represent himself at trial. Norman Lewis initially told Gergel he wanted to be represented by God and Jesus rather than a court-appointed defender. He also spoke during an arraignment hearing about more than 100 songs and poems he has written about his work with Helping Hands, “doing so in a manner that left the court concerned with the defendant’s mental capacity.”
A psychiatric exam in December 2012 showed Norman Lewis was competent to stand trial, prompting Gergel to approve his request to represent himself. Gergel rescinded that request in February 2013 after Norman Lewis repeatedly refused to accept boxes of discovery documents needed for trial preparation. Norman Lewis’ refusal to meet with a probation officer led to his incarceration three months later and he was charged with contempt of court in July for speaking to potential jurors.
Norman Lewis’ wife, Melanie Lewis, pleaded guilty last year to one conspiracy charge in a plea agreement to avoid a trial. That charge carries a maximum five-year prison sentence. Melanie Lewis will be sentenced on Thursday in Charleston.
Testimony during the August trial showed Helping Hands officials — most of them Lewis family members — falsified records and submitted bills for ineligible or non-existent clients in order to boost Medicaid payments. Lewis family members then transferred that money to personal bank accounts and purchased items such as 10 automobiles, including an $89,000 Bentley and a $55,900 Mercedes....
Bank records included in court documents show Helping Hands billed Medicaid a steadily increasing amount starting in January 2009, when the agency received $13,500 from the federal health program. By April 2010, Helping Hands was billing Medicaid for $1 million per month. The agency closed for good in 2011.
Based on the amount of money apparently involved in this federal fraud (as well as enhancements for leadership role and other aggravating guideline factors), I would guess that the guidelines recommend a sentence of a decade or more for Truman and Norman Lewis. But would it be more effective and efficient for them to get a shorter prison sentence coupled with a rigorous set of restitution obligations to help ensure federal taxpayers are made whole?
You be the judge (and, ideally, propose in the comments a sentence that makes a clever pun about Helping Hands).
March 17, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack
DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims
Very long time readers with very good memories may recall the array of notable post-Booker issues that surround the sentencing of Antwuan Ball following his conviction for crack distribution in Washington DC. As first noted in this prior post (from June 2008!), Ball put the government to its burden of proof concerning allegations of a massive drug conspiracy and murders; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.
Fast forward to 2011 and, as reported here, the feds are urging the district judge to rely heavily on all sorts of alleged/claimed wrongdoing by Ball to impose a max statutory sentence of 40 years on the crack charge. (Significant side note: in light of the passage of the FSA and Supreme Court's subsequent Dorsey ruling, I am not sure 40 years was in fact the proper stat-max for Ball, but more on that point later.)
Relying on the prosecution's allegations that Ball was the leader of a huge crack consipracy (claims which the jury rejected), the district judge apparently calculated Ball's guideline sentence range to be 292 to 365 months (though again, due to the FSA, I am not sure that was the right guideline range circa March 2011). This NACDL amicus brief filed in January 2013 indicates that Ball's guideline range would have been only 51 to 71 months absent consideration of acquitted conduct.
As reported here, District Judge Richard Roberts at sentencing declared that he "saw clear evidence of a drug conspiracy [and imposed on Ball a 225-month prison sentence] for his conviction of the 2001 hand-to-hand drug transaction." At the time of Ball's 2011 sentencing, I noted here that I was quite pleased the acquitted conduct issues preserved in this notable case, and I suggested "some circuit has to question at least the substantive reasonableness of a sentence that is greatly elevated on the basis of acquitted conduct."
Now fast forward exactly three more years, and I find myself quite disturbed and troubled by how the acquitted conduct issues (and other issues) were given seemingly quite short shrift by a panel of the DC Circuit in its ruling late last week in US v. Jones, No. 08-3033 (DC Cir. Mar. 14, 2014) (available here).
For starters, as I read the panel opinion in Jones, I find myself persistently wondering whether and how the district court at Ball's 2011 sentencing may have been influenced by the pre-FSA crack statutes and guidelines before the Supreme Court in Dorsey subsequently made clear that post-FSA rules should apply to all post-FSA sentencings. This issue is not discussed in the Jones opinion (and perhaps it was not raised/preserved), but uncertainty about the application of the FSA at the time of sentencing might arguably alone be reason enough to require resentencing for Ball.
More fundamentally, to reject Ball's acquitted conduct claims, the DC Circuit opinion in Jones only cites to (now dated) post-Booker precedents from all the circuits via this discussion (my emphasis added):
Although we understand why appellants find sentencing based on acquitted conduct unfair, binding precedent of this court establishes that the practice does not violate the Sixth Amendment when the conduct is established by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime. See United States v. Settles, 530 F.3d 920, 923-24 (D.C. Cir. 2008) (citing United States v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam)); Dorcely, 454 F.3d at 371 [D.C. Cir. 2006] (“[A] sentencing court may base a sentence on acquitted conduct without offending the defendant’s Sixth Amendment right to trial by jury.”). This is true even when consideration of the acquitted conduct multiplies a defendant’s sentence severalfold. See Dorcely, 454 F.3d at 370-71. Appellants, in effect, ask us to reconsider Settles and Dorcely. But not only do those decisions bind us, no subsequent decision by the Supreme Court or another circuit calls their validity into question. Cf. FED. R. APP. P. 35(b)(1) (suggesting contrary decisions by the Supreme Court or by another court of appeals as grounds for en banc review). Indeed, since the Supreme Court struck down the mandatory federal sentencing guidelines and freed judges “to exercise broad discretion in imposing a sentence within a statutory range,” United States v. Booker, 543 U.S. 220, 233, 243-44 (2005), every numbered circuit has addressed the constitutionality of sentencing based on acquitted conduct, and each one has reached the same conclusion reached by this court. See United States v. White, 551 F.3d 381, 384-86 (6th Cir. 2008) (en banc); United States v. Mercado, 474 F.3d 654, 656-58 (9th Cir. 2007) (collecting cases from every numbered circuit but the Sixth).
I have emphasized a phrase from the middle of this paragraph because I actually believe there are at least two SCOTUS rulings since the DC Circuit addressed this issue in Settles and Dorcely that arguably "calls their validity into question." Specifically, just from 2013, the Supreme Court's Peugh decision (basics here) and especially its Alleyne decision (basics here and here) provide a reasonable basis to question the continued validity of severe acquitted conduct guideline enhancements. A fair reading of Alleyne suggests that judicial fact-finding as to facts which "alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment" can be constitutional problematic even if these facts do not raise the applicable statutory maximum sentence.
Critically, I am not asserting that the 2013 SCOTUS rulings Peugh and/or Alleyne now require reversal of old circuit precedents upholding major acquitted conduct enhancements. But I do strongly believe that 2013 SCOTUS rulings Peugh and/or Alleyne raise significant new questions about old circuit precedents upholding major acquitted conduct enhancements. Consequently, I find this cursory treatment of what strikes me as a significant sentencing issue in a significant case to be disconcerting.
That all said, perhaps the "optimistic" way to read this opinion is as an invitation to Ball and others to see en banc review of old circuit precedent upholding major acquitted conduct enhancements. At the very least, given that Ball still likely has a decade in federal prison left for his $600, half-ounce, hand-to-hand crack-cocaine deal in 2001, I hope he seriously considers pursuing further appeals of his sentence.
Some old posts on the Ball case and acquitted conduct sentencing enhancements:
- Extended examination of ugliness of acquitted conduct enhancement
- Latest chapter in notable federal acquitted conduct case from DC
- "When Acquitted Doesn't Mean Acquitted"
- Practitioner’s Note: Acquitted Conduct in the News (Again)
- Strong commentary on acquitted conduct sentencing
- Sincere questions about acquitted conduct sentencing
- Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues
March 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32) | TrackBack
"Last Words: A Survey and Analysis of Federal Judges' Views on Allocution in Sentencing"
The title of this post is the title of this notable new article available via SSRN co-authored by a federal judge and a law professor. The piece, by Mark Bennett and Ira Robbins, examines an arena of sentencing law and practice that rarely gets the attention I have long thought it deserved. Here is the abstract:
Allocution — the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing — is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves. But what do sitting federal judges think about allocution? Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions? These questions — and many others — are answered directly in this first-ever study of judges’ views and practices regarding allocution.
The authors surveyed all federal district judges in the United States. This Article provides a summary and analysis of the participants’ responses. Patterns both expected and unexpected emerged, including, perhaps most surprisingly, that allocution does not typically have a large influence on defendants’ final sentences. Most of the judges agreed, however, that retaining this often-overlooked procedural right remains an important feature of the criminal-justice process.
This Article also synthesizes judges’ recommendations for both defendants and defense attorneys aiming to craft the most effective allocution possible. Critical factors include preparing beforehand, displaying genuine remorse, and tailoring the allocution to the predilections of the sentencing judge.
March 16, 2014
The state of the death penalty in the Sunshine State
This lengthy new Orlando Sentinel article, headlined As death penalty wanes in U.S., Florida executes even more killers," provides a review of capital realities in a state that now leads even Texas in number of executions in 2014 so far. Here are some of the details:
Robert Lavern Henry is set to be executed this week for killing two women in 1989 by beating them with a hammer and setting them on fire in a Deerfield Beach fabric store. He would be the 16th prisoner executed under Gov. Rick Scott's watch, more than any other modern Florida governor in a single term.
At a time when other states are curtailing or outlawing executions, Florida is bucking the trend. A swelling number of death sentences handed down in the 1990s are reaching the ends of their appeals. Florida also is experiencing a rare window of relatively few legal challenges, botched executions or political infighting over the issue....
Florida has been more likely to hand out death sentences and is the only state that doesn't require unanimous jury recommendations for the death penalty. Florida's 15 death sentences and California's 24 accounted for nearly half of the death sentences dealt nationwide in 2013, according to the Death Penalty Information Center.
Only nine states carried out executions in 2013, and Maryland became the sixth state in six years to outlaw the death penalty. Meanwhile, Florida executed seven people in 2013, second only to Texas with 16. Florida leads the country with three executions so far this year.
Yet some experts say the Sunshine State's death-penalty system needs sweeping change. Christopher Slobogin, a law professor at Vanderbilt, chaired the American Bar Association's Death Penalty Assessment Team, which in 2006 issued a study that pronounced Florida capital punishment deeply flawed. It recommended a top-to-bottom review to ensure innocent people weren't being executed. But that never happened. "As far as I can tell, the Florida system remains in just as much disarray as when we looked at it," he said.
Some lawmakers are still trying to carry out one of the team's proposals to require unanimous jury sentencing recommendations for the death penalty. "Florida is an outlier," said Rep. José Javier Rodríguez, a Miami Democrat sponsoring the bill, HB 467.
Instead, lawmakers and governors have tried repeatedly during the past three decades to accelerate executions....
The latest example is the 2013 "Timely Justice" law, which required the clerk of the Florida Supreme Court to certify a list of cases ready for death warrants. In October, the clerk sent a list of 133 names where appeals had been exhausted to Scott's office, out of the about 400 people on death row.
The law set timelines for when Scott must act on those names, although his office still solely determines when the clemency process has been exhausted. "I think over time we'll see the average amount of time people spend on death row decrease exponentially," said Rep. Matt Gaetz, R- Fort Walton Beach, who sponsored the bill. "The effect is clear." Florida death-row inmates wait about 14 years on average to die, the Department of Corrections says....
This past summer, a group of lawyers representing death-row inmates challenged the "Timely Justice" law as a violation of separation of powers and due process for inmates. The Florida Supreme Court heard arguments last month but hasn't ruled yet. Lawyers last week asked the court to delay Henry's execution until a decision is rendered, but the justices Friday denied that request.
NY Times sees "A Rare Opportunity on Criminal Justice"
The title of this post is drawn from the headline of this new New York Times editorial about federal sentencing reform. Here are excerpts:
The current Congress is the place where virtually all legislation, however urgent or reasonable, goes to die. Yet out of this stew of partisan mistrust and dysfunction there may come one promising and unexpected achievement: the first major reforms to America’s broken criminal justice system in a generation.
Two bipartisan bills now under consideration aim to unwind our decades-long mass incarceration binge and to keep it from happening again. This fact is remarkable not only because of Congress’s stubborn standstill, but because crime and punishment has long been one of the most combustible issues in American politics....
The Smarter Sentencing Act — introduced in the Senate last year by Richard Durbin, the Illinois Democrat, and Mike Lee, the Utah Republican — would halve mandatory minimum sentences for certain nonviolent drug crimes, which currently stand at five, 10 and 20 years. It would also give judges more discretion to sentence below the mandatory minimum in some cases, and it would provide a chance at early release for thousands of inmates sentenced under an older law that disproportionately punished crack cocaine offenders.
The Recidivism Reduction and Public Safety Act, introduced by Sheldon Whitehouse, Democrat of Rhode Island, and John Cornyn, the Texas Republican, would allow low-risk prisoners to earn credit for early release by participating in education, job training and drug treatment programs.
Reforms like these were unthinkable even a few years ago, when the Republicans’ longtime tough-on-crime dogma — echoed by Democrats who fearfully fell into line — drove irrational sentencing laws. Why have things changed so quickly? In a word, money — or the lack of it. The bloated Bureau of Prisons eats up nearly $7 billion a year, a quarter of the Justice Department’s entire budget. Politicians like Senator Rand Paul, Republican of Kentucky, and Mr. Lee have become the public face of the conservative turnabout, and they deserve credit for their efforts, but it’s important to remember that almost none of this would be happening without the need to save money.
In fact, many of the reforms now under consideration at the federal level began in reliably conservative states, where budget crises long ago demanded sweeping and lasting change. In Texas, which incarcerates more people than any other state, lawmakers have adopted alternatives to prison, such as drug courts and improved community supervision programs, that help keep people from reoffending. The result has been a steady decline in the prison population and the closing of three state prisons, even as crime rates go down. As Mr. Cornyn told The Times, “From Texas’s perspective, the evidence is in.”
Since 2000, 29 states have moved to cut back on mandatory sentences, particularly for low-level and nonviolent drug offenders, according to a new report by the Vera Institute of Justice.
Some prosecutors and politicians warn that all this reform comes at a serious risk to public safety, but the experience of multiple states shows otherwise. Reserving prison for the most violent offenders saves money, and antirecidivism programs targeted at low-risk inmates protect public safety.
Whether the concern is too much government, too little money, or the inherent unfairness of locking people up for years for no good reason, the energy from both the right and the left is converging, and the moment for meaningful reform has arrived.
Though I share the general perspective that there is a “fierce urgency of now" for federal sentencing reforms, I disagree that money explains these recent developments at the federal level. States, especially red states, have been at the forefront of modern sentencing reforms because of the need to balance budgets without raising taxes, but the feds have long shown a willingness to borrow money for any and all federal priorities. Rather, I think there is a new generation of politicians and voters who no longer view crime as much more salient concern than just and effective punishment.
Younger and more diverse politicians and voters appreciate that too much government and punishment can be as worrisome as a bit more crime, and that is what I think we are now finally getting a much more balanced federal political discourse about these issues than we did a generation ago. (Notably, the Baby Boomers were the first major generation who did not directly experience/witness the harms/problems of Prohobition and totalitarian regimes, so it makes some sense that generation would embrace a big criminal justice system eschewed by their parents and their children.)
March 16, 2014 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32) | TrackBack