April 25, 2015
Lots of thoughts for and about new Attorney General Loretta Lynch
In the wake of the confirmation of Loretta Lynch to be Attorney General, I see lots of traditional and social media discussion of what she might and what she should do in this role in the months ahead. Here is a sampling of some of some of this commentary:
From Lynette Holloway here via NewsOne, "Here Are The Top 4 Things Loretta Lynch Should Tackle Immediately As Attorney General"
From Bill Otis here via The Crime Report, "Memo to Lynch: Reach Out to Your Opponents"
From Gloria Browne-Marshall here via The Crime Report, "Lynch at DOJ: 'Little Time and a Long Docket'"
From Jacob Sullum here via Reason, "The New Attorney General Is Lukewarm on Sentencing Reform: Loretta Lynch's lack of enthusiasm could make it harder to pass a decent bill."
Because I know so very little about the (always opaque) internal structure and politics of the US Department of Justice, I do not have any detailed predictions or concrete advice for the new Attorney General. In the short term, I am hopeful she will give some speeches in order to better identify her likely priorities in the months ahead.
April 24, 2015
Attorneys for another convicted CIA leaker urges judges to follow Petraeus sentencing lead
This notable new Washington Post article, headlined "Attorneys ask judge to consider Petraeus in sentencing ex-CIA officer Sterling," the seemingly lenient treatment given yesterday to former CIA director David Petraeus for leaking information to his journalist/mistress (basics here) is already having an echo effect in other federal criminal cases. Here are the interesting details:
Defense attorneys for the former CIA officer convicted of giving classified information to a New York Times reporter urged a federal judge on Friday to sentence their client in line with the terms faced by other so-called leakers — noting that not 24 hours ago, a retired general and ex-CIA director was given mere probation in a similar case.
Defense attorneys for Jeffrey Sterling did not endorse a specific penalty, but they urged U.S. District Judge Leonie M. Brinkema to consider the impact of the case and be fair. The defense attorneys argued that in three other recent leak cases, those convicted received — at the most — 30 months in prison. On Thursday retired general and former CIA chief David Petraeus was sentenced to two years of probation and a $100,000 fine. “In meting out justice,” defense attorneys wrote, “the Court cannot turn a blind eye to the positions the Government has taken in similar cases.”
Sterling, 47, was convicted in January of nine criminal counts after jurors determined unanimously that he gave classified information to New York Times reporter James Risen about a sensitive operation to put faulty nuclear plans in the hands of Iranian officials. Federal prosecutors earlier this week urged a judge to impose a “severe” sentence and said they felt the U.S. probation office had correctly calculated the range in the federal sentencing guidelines as 19 years 7 months on the low end and 24 years 5 months on the high end.
Such a sentence would have few parallels: The closest might be the 35-year prison term imposed by a military judge on Chelsea Manning, who leaked the largest volume of classified documents in U.S. history. And Sterling’s defense attorneys argued that a prison term within the guidelines would be “plainly excessive,” essentially penalizing Sterling for not taking a plea deal. “Mr. Sterling was convicted, under the Espionage Act, for ‘leaking’ information to a reporter,” defense attorneys wrote. “He should be treated similarly to others convicted for the same crimes and not singled out for a long prison sentence because he elected to exercise his right to a trial.”
Defense attorneys pointed to two similar cases in which alleged leakers reached plea agreements and avoided decades behind bars. Former CIA officer John Kiriakou, who revealed the name of another covert officer, was ultimately sentenced to 30 months in prison, and former State Department arms expert Stephen Jin-Woo Kim, who leaked classified information to a Fox News reporter, was ultimately sentenced to 13 months in prison, defense attorneys argued. They argued that Petraeus, who lied to the FBI, reached a deal to avoid prison entirely. “Mr. Sterling should not receive a different form of justice than General Petraeus,” Sterling’s defense attorneys wrote.
Prosecutors have characterized Sterling’s case as “unique” and argued that the harm he caused to national security was grave. They have argued that Sterling, motivated by “pure vindictiveness,” leaked details that compromised one of the nation’s few ways to deter Iran’s nuclear ambitions, and in doing so, put a Russian scientist who was working with the CIA in danger....
Sterling is scheduled to be sentenced May 11.
Why the US Sentencing Commission's moderate moderation of fraud guidelines has few fans
This new Huffington Post piece, headlined "Why Nobody Is Really Happy With New Guidelines For Punishing White-Collar Criminals," provides an effective review of why the US Sentencing Commissions new amendments to the fraud guidelines is not garnering widespread praise. Here are excerpts:
A federal panel voted earlier this month to amend the guidelines that federal judges use when sentencing people who commit economic crimes. But few are happy with those changes: Sentencing reform advocates say they don't go far enough to fix draconian sentences, while the U.S. Department of Justice contends that the changes could give some white-collar criminals a new avenue for unfair leniency.
Recommended sentences for economic crimes under the current rubric are so severe, they are no longer taken seriously, some prosecutors and judges suggest. Those guidelines have relied on complicated calculations involving criminal gain and inflicted losses that spit out sentences that can appear inconsistent or absurd. One federal New York judge called the math "hocus-pocus." In 2008, for example, a federal judge sentenced a 72-year-old man to 330 years in prison for an investment scam.
The U.S. Sentencing Commission is responsible for coming up with the road map that federal judges can use when issuing these sentences. On April 9, the commission approved new guidelines, which now will be submitted to Congress and will go into effect in November, unless lawmakers intervene.
Chief Judge Patti Saris, who chairs the commission, contended last week that the economic crime guidelines are not broken, but has acknowledged that they could provide more clarity on what to do in the cases of certain first-time, low-level offenders. The changes aim to make punishments more fair by giving greater weight to a criminal's role and his or her intent....
In March, the Justice Department came out against some of these changes, in favor of more targeted reforms. DOJ is worried that the intent clarification could allow white-collar criminals to claim they never meant to hurt anyone. A fraudster running a Ponzi scheme who is caught early, for example, could argue that he hoped the scheme wouldn't fail.
It makes sense that the Justice Department would want to preserve the option to impose harsher sentences in certain cases. Frank Bowman, a professor at the University of Missouri School of Law who has commented on the draft guidelines, said that from DOJ's perspective, stringent guidelines can give them leverage when negotiating plea bargains.
But some legal experts argue that the Obama administration is missing the point in this case. "All we want to do is make guidelines such that a federal prosecutor can actually look a federal judge in the face and say, 'Impose these guidelines as written,'" Bowman said. If the guidelines had more credibility, he added, judges might be more inclined to follow them and hand down stronger sentences. "The Justice Department is cutting off its nose to spite its face," he said.
Mark Holden, senior vice president and general counsel for Koch Industries, told The Huffington Post that he considered the commission's emphasis on offender intent "a positive development and consistent with the Bill of Rights." He added that the guidelines "are an effort to make the punishment fit the crime," but that more needs to be done on criminal justice reform overall....
Advocates say that when it comes to sentencing reform, there are parallels between drug crimes and economic crime. Mary Price, general counsel for Families Against Mandatory Minimums, asked, "Do we just count drugs, or do we look at [the harm] people really intended? How much harm did they cause? … Are they the courier or the mastermind?" She added that she was disappointed with the pending changes to the economic crime guidelines, calling them "rather minimal."
Prior related posts:
- US Sentencing Commission votes to amend fraud guidelines (but not really "fix" that much)
- Basic report on basic changes to fraud guidelines promulgated by US Sentencing Commmission
April 23, 2015
Florida Supreme Court reverses cop killer's death sentence on proportionality review
As reported in this local article, the "Florida Supreme Court has overturned the death sentence of Humberto Delgado, who was convicted of gunning down Tampa police Corporal Mike Roberts in 2009." Here are the details of why:
In an opinion issued Thursday, a unanimous court ruled that Delgado's extreme mental illness, coupled with the circumstances of the crime, made a death sentence disproportionate as compared with other murder cases. The court sent the case back to the circuit court, where Delgado will be resentenced to life in prison with no chance of release....
Delgado, 40, who once worked as a police officer in his native Virgin Islands, was sentenced to death in 2012. At his trial, doctors testified about Delgado's history of delusions and psychotic behavior. All diagnosed him with bipolar disorder with varying degrees of psychosis.
Their examinations revealed that in his early adulthood, Delgado was plagued by a belief that police were out to kill him and that people were following him and sitting in trees outside his home. He also told his family that he had to cut off his children's legs because they were "goat legs" and they were "evil." He was known to wander the streets at night, saying that demons, the Masons, and the rapper 50 Cent were trying to kill him.
Delgado had been hospitalized multiple times before he ended up living with relatives in Oldsmar. On Aug. 19, 2009, he walked 15 miles from there, pushing a shopping cart that held four guns, on his way to a veterans hospital in Tampa. That night, Roberts stopped Delgado near the corner of Nebraska Avenue and Arctic Street. Delgado gave Roberts his identification. When Roberts started to search his belongings, Delgado tried to run. Roberts then shocked Delgado with a Taser. Delgado hit Roberts several times before shooting him....
In its opinion, the Supreme Court noted that the death penalty is intended for cases in which the aggravating factors greatly outweigh any mitigating factors presented by the defense. "We do not downplay the fact that Corporal Roberts lost his life as a result of Delgado's actions," the justices wrote. "However ... we are compelled to reduce Delgado's sentence to life imprisonment because death is not a proportionate penalty when compared to other cases."...
Mentally ill inmates are rarely executed in Florida, due to the length of the appeals process and the moral, ethical and legal issues associated with executing the insane. Recently, courts have trended away from capital punishment for the mentally ill.
The full opinion is available at this link.
Senate finally votes on AG nominee and confirms Loretta Lynch by vote of 56 to 43
The GOP has finally succeeded in getting Attorney General Eric Holder out of his job by finally allowing the full Senate to vote on his nominated successor, Loretta Lynch. This New York Times article provides more of the details, and starts this way:
After one of the nation’s most protracted cabinet-level confirmation delays, the Senate Thursday approved Loretta Lynch to be attorney general. She is the first African-American woman to hold the position.
Ms. Lynch, the United States attorney for the Eastern District of New York, was confirmed 56 to 43.
Her confirmation took longer than that for all but two other nominees for the office: Edward Meese III, who was nominated by President Ronald Reagan, and A. Mitchell Palmer, who was picked by President Woodrow Wilson, according to the Congressional Research Service.
Republicans have found themselves in a quandary for months. They longed to replace Attorney General Eric H. Holder Jr., and they agreed that Ms. Lynch was qualified for the job. But they opposed her because Ms. Lynch defended President Obama’s executive actions on immigration.
What’s more, Senator Mitch McConnell, Republican of Kentucky and majority leader, had held up the nomination until the Senate voted on a human trafficking bill, a process that dragged on for weeks. The measure passed on Wednesday by a vote of 99 to 0. And some Republicans continued to strongly oppose Ms. Lynch. “We do not have to confirm someone to the highest law enforcement position in America if that someone has committed to denigrating Congress,” Senator Jeff Sessions, Republican of Alabama, said on the Senate floor Thursday. “We don’t need to be apologetic about it, colleagues.”
In the end several Republicans — to the surprise of many of their own colleagues — voted aye for Ms. Lynch, including Mr. McConnell.
Some conservative groups had called on Senate Republicans to block a vote on Ms. Lynch altogether because of her stance on the president’s immigration policies. Many Senate Republicans feared the party would face serious political repercussions if it blocked an African-American woman with strong credentials and enthusiastic support from many in law enforcement.
Opponents still forced a procedural vote before her final confirmation, an unusual requirement for such a high position. The nomination moved along easily, by a vote of 66 to 34.
Should judge follow federal prosecutors' recommendation of no prison time for CIA leaker David Petraeus?
The question in the title of this post is prompted by the sorted story surrounding the criminal misdeeds of former CIA director David Petraeus. This press report, with the subheadline "Former CIA director and military commander expected to plead guilty to sharing government secrets with his biographer and lover, Paula Broadwell," provide the backstory leading up to this afternoon's sentencing of a high-profile federal defendant:
A scandal that began to unravel in Charlotte ends in Charlotte on Thursday when former CIA Director David Petraeus is expected to admit sharing top government secrets with his biographer and lover.
Under a February agreement with prosecutors, Petraeus, 62, will plead guilty to one count of unauthorized removal and retention of classified material, a misdemeanor that carries a maximum sentence of one year in prison and a $100,000 fine. The government will recommend that punishment for the former commanding general in Iraq and Afghanistan be limited to two years’ probation and a $40,000 fine.
U.S. Magistrate Judge David Keesler, who will preside over Petraeus’ hearing, is not bound by the plea deal. But legal experts say judges typically give great weight to such agreements.
Critics say the retired general is getting off light, given how zealously the Obama administration has pursued government leaks. By comparison, CIA analyst and case officer John Kiriakou, the whistleblower who revealed the secret CIA torture program, is serving a 30-month sentence. Open-government groups say President Barack Obama’s lieutenants have prosecuted more leakers than the rest of U.S. administrations combined.
“It’s hard to reconcile cases like that, and it leads to the conclusion that senior officials are held to a different and more forgiving standard than others,” said Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists in Washington, D.C.
The case against Petraeus, a former Obama confidant, has apparently troubled the administration from the start. The New York Times reported earlier this year that Attorney General Eric Holder was resisting the recommendations of his staff to charge Petraeus with a felony that could have led to possible prison time.
Petraeus resigned three days after Obama’s 2012 re-election. Up to then, the retired four-star general was among the most respected military leaders of modern times. He was sometimes mentioned as a future presidential or vice presidential candidate.
That all began to change three years ago. Paula Broadwell of Charlotte had already written “All In,” Petraeus’ biography. But in May 2012, the West Point graduate began sending a series of anonymous emails disparaging Jill Kelley of Tampa, Fla. Kelley was a friend of Petraeus and other military leaders. Broadwell, documents say, considered her a romantic rival.
Using “Tampa Angel” and at least one other pseudonym, Broadwell sent some of her emails from the old Dilworth Coffee shop on East Boulevard. Within weeks, the FBI had traced the messages back to Broadwell. In June 2012, agents visited the Dilworth home she shares with her husband, radiologist Scott Broadwell, and their two children. A search of her email accounts uncovered the affair. Prosecutors say Broadwell’s computer housed classified information that went far beyond her security clearance as a major in the Army Reserve.
Petraeus resigned as CIA director on Nov. 9, 2012. Court documents filed by acting U.S. Attorney Jill Rose of Charlotte and others say Petraeus shared eight “black books” with Broadwell that he compiled in Afghanistan. Prosecutors say the books held everything from secret codes and the identities of covert officers, to war strategy and notes from National Security Council meetings. Broadwell kept the books for at least four days beginning in August 2011, prosecutors say. The FBI later seized the books during an April 2013 raid on Petraeus’ home.
Petraeus lied to investigators about both having classified information and sharing it with Broadwell, according to court documents. Prosecutors say none of the classified material appeared in Broadwell’s book.
I am troubled by the appearance of disparate favorable treatment being shown to Petraeus, especially given how serious his offense conduct seems and his lies to investigators (which could have been charged as obstruction of justice). Unfortunately, I do not think federal prosecutors have ever explained — or will ever have to explain — just why they gave Petraeus a seemingly "sweetheart" deal (every pun intended there). Without any such explanation from federal prosecutors concerning how they exercised their charging and bargaining discretion in this case, it is difficult for me to make an informed judgment on the sentence being recommended by prosecutors for the former CIA director.
UPDATE: This CNN piece reports on the outcome via its headline: "Petraeus sentenced: 2 years probation; $100K fine." By Theodore Schleifer,
"There is no joy in this dissenting judge. The per curiam and concurring opinions have struck out."
The quote in the title of this post is the amusing first line of the sole dissenting opinion authored by Judge Rawlinson in the en banc reversal by the Ninth Circuit of Barry Bonds' federal conviction for obstruction of justice. The other 10 judges in the en banc court considering US v. Bonds, No. 11-10669 (9th Cir. April 22, 2015) (available here), had a variety of different views about why the slugger's conviction could not stand, and all the lengthy opinion are worth reading for anyone concerned about the potentially very broad reach of the federal crime of obstruction of justice. Here is the two-paragraph per curiam part of the opinion that reflects its actual holding:
During a grand jury proceeding, defendant gave a rambling, non-responsive answer to a simple question. Because there is insufficient evidence that Statement C was material, defendant’s conviction for obstruction of justice in violation of 18 U.S.C. § 1503 is not supported by the record. Whatever section 1503’s scope may be in other circumstances, defendant’s conviction here must be reversed.
A reversal for insufficient evidence implicates defendant’s right under the Double Jeopardy Clause. See United States v. Preston, 751 F.3d 1008, 1028 (9th Cir. 2014) (en banc) (citing Burks v. United States, 437 U.S. 1, 11 (1978)). His conviction and sentence must therefore be vacated, and he may not be tried again on that count.
I would guess Barry Bonds is pleased to be now free from a federal conviction and its collaterally consequences, I would also guess getting to this point cost him a very big bill in attorneys' fees.
April 22, 2015
New problems with drones smuggling contraband in to prisons
This New York Times article would perhaps be amusing if it were not so disconcerting. The headline is is "Illegal Air Mail for Prisoners, via Drones," and here are excerpts:
During the graveyard shift at 1:44 a.m., security cameras at the prison here picked up the blinking lights of an unidentified flying object approaching the facility’s fence. A corrections officer was dispatched to investigate, but by the time she got there, all she could see was a man running away into the dense forest that surrounds the prison.
It was not until dawn that officers found a package that included a cellphone, tobacco and marijuana tangled in the power lines outside the prison and a small drone that had crashed in the bushes nearby. In the woods, investigators located a makeshift campground, the remote control device used to fly the drone, a bottle of grapeflavored Gatorade and drugs.
“It was a delivery system,” said Bryan P. Stirling, the director of the South Carolina Department of Corrections, explaining how the drone’s operators had planned to send the contraband into the prison, the Lee Correctional Institution. “They were sending in smaller amounts in repeated trips. They would put it on there, they would deliver it, someone inside would get it somehow, and they would send it back out and send more in.”
It is the high-tech version of smuggling a file into a prison in a birthday cake, and it underscores the headache that drones are now creating for law enforcement and national security officials, who acknowledge that they have few, if any, ways of stopping them.
Drones flying over prison walls may not be the chief concern of corrections officials. But they say that some wouldbe smugglers are experimenting with the technique as an alternative to established methods like paying off officers, hiding contraband in incoming laundry and throwing packages disguised as rocks over fences into recreational yards.
The authorities have detected at least three similar attempts at corrections facilities in the United States in the past two years. In the same period, there were also at least four reported attempts abroad, in Ireland, Britain, Australia and Canada.
Is there a "growing movement against death penalty – on the right"?
The question in the title of this post is prompted by this notable new press article with this full headline: "Nebraska highlights growing movement against death penalty – on the right: Seventeen Republican lawmakers seek abolition of capital punishment in the state as Christians, conservatives and libertarians band together for change." Here are excerpts:
A growing coalition of Christian, fiscally conservative and libertarian lawmakers are pushing to repeal the death penalty in some of America’s reddest states. And after years of working against state-sponsored executions, historically a Democratic platform, some conservatives say they believe the efforts are gaining traction.
The push for reform was on full display last week in Nebraska, as 17 Republican lawmakers in the one-house legislature advocated for passage of abolition bill LB268. “I know many of you, when you went door to door, you said to the constituent you talked to: ‘You send me to Lincoln, [Nebraska,] and when I get down there I’m going to find government programs that don’t work, and I’m going to get rid of them,’” Senator Colby Coash told fellow lawmakers. “And that’s exactly what LB268 does … We can get justice without this method.”
The bill passed its first hurdle with a 30 to 12 vote in favor of repeal, potentially enough to override Republican governor Pete Ricketts’ veto threat. Two more successful votes are needed to send the bill to the governor’s desk, and there is strong opposition, including filibuster threats, to overcome. Still, conservative advocates said they believe it is one of the most promising developments in decades.
“We’re probably in the best position we’ve been in since the bill passed in 1979,” said Stacy Anderson, the conservative executive director of Nebraskans for Alternatives to the Death Penalty, about the last time the state’s legislature passed an abolition bill. “From the conservative standpoint, the death penalty fails on all of our core values.”...
Republicans are still the most likely group to support capital punishment, with 77% in support of the death penalty. Still, conservative activists point to the 10% decrease in Republican support over 20 years, growing support for life without parole as an alternative to the death penalty, and the issue’s low priority ranking among voters.
The most widely cited reasons for opposing the death penalty seem in line with some of the most fervent strains of American Republicanism: fiscal conservatism, pro-life principles and small government ideals. And with increasing scrutiny on states that continue to execute prisoners despite a shortage of lethal injection drugs, the issue appears poised to continue to attract attention.
“It’s a government program that risks innocent life, costs more than the alternative, and is certainly not about limited government,” said Marc Hyden, an outreach specialist with Conservatives Concerned About the Death Penalty. “When I’m first speaking, I think conservatives give me kind of a weird look,” said Hyden. “But about halfway through the presentation, it starts clicking with them – that this is a program that just doesn’t mesh with conservative ideals.”
The campaign has seen growing interest in red states such as Georgia, Kentucky, Kansas and Tennessee, both Hyden and abolitionists said.
In Montana, a fiercely conservative state, a death penalty abolition bill made it out of the House judiciary committee for the first time perhaps ever, according to death penalty abolition advocates there. “I was shocked,” Moore told the Missoulian. “I didn’t expect it to come out of committee.” At the time that the bill passed to the floor, a stunned Moore described it as having “a tiger by the tail”. The abolition bill failed in a vote on the house floor, but many see its progress out of the judiciary committee as nothing short of stunning. “We were very excited,” said Jennifer Kirby about the bill’s progress. “It’s about time.”
More good and important questions criminal justice questions for the 2016 Prez field
As explained in this prior post, I think we already have enough declared candidates for President to early to start assembling criminal-justice reform questions to ask any and all persons pursuing the top position in the Executive Branch of the US Government. As also noted in that prior post, Radley Balko got this task off to a running start earlier this month via this extended Washington Post piece headlined "Are you running for president? Please answer these questions about the criminal justice system." I now see folks at The Crime Report have this effective follow-up headlined "Campaign 2016 and Criminal Justice."
This valuable Crime Report piece provides effective context for a discussion of criminal justice reform during the (already underway) 2016 Prez campaign, and and a number of question that should be of special interest to sentencing fans:
In our system, most of the gritty justice issues, from overcrowding in jails and prisons to police use of force and errant prosecutors, are dealt with on a state and local level—not by the feds.
Nevertheless, leadership in the White House matters: it establishes priorities, frames the national agenda and sets a tone. And we clearly need leadership today.
Crime and justice issues are back on the national agenda to an extent that hasn’t been seen since the “tough on crime” era of the 1990s.
Not a single question on the topic was asked during the 24 presidential, vice presidential and primary debates leading up to the 2012 election.
Perhaps that’s understandable. National opinion polls have shown steadily diminishing public concern about crime over the past two decades — in effect, tracking the national decline in crime rates. Of course, it’s worth noting that polls have also shown that public safety remains high on the list of issues troubling many of our poorest cities and neighborhoods.
But while politicians might be forgiven for largely staying away during recent presidential election cycles from the hot-button subject of crime and justice (a silence, it must be said, that some commentators have welcomed for the breathing space it has allowed efforts at serious reform), they shouldn’t get a pass now.
We’re confronted today by the consequences of our collective failure to deal with many of the problems that the anti-crime policies of past decades set in motion —and by our persistent failure to address the glaring and deep-rooted inequities that those policies exposed....
Readers of The Crime Report are well informed of these challenges. And it’s also gratifying to note that some of the prospective candidates from both major parties have begun to acknowledge them as well. In this one area of our national life, at least, a healthy bi-partisanship has begun to appear.
But we need to make sure that a healthy debate about justice reform doesn’t get swept under the rug by the homogenizing pressures of a political campaign. It’s hard to separate what ails American criminal justice from the systemic problems of American society—from racism to economic inequality and our underfunded educational system. It’s never been more important to get our would-be leaders on the record.
So, as our own contribution to the effort, The Crime Report plans over the next few months to ask each candidate targeted questions about his or her ideas and visions for fixing what many consider our “broken” criminal justice system—and to publish them here....
Following the path blazed by Balko, our editorial team has come up with 13 questions we believe deserve honest and practical answers. You can read our proposed questions below....
The War on Drugs. The federal government has historically allocated about the same amount of resources to drug interdiction on the border and abroad as for drug treatment in the U.S. Is that a fair division, or would you spend more or less money on either function?...
Sentencing Reform. What steps would you take with Congress to reduce the long prison sentences that have contributed to the growth in our federal prison population? What steps would you take to encourage states to do the same?...
Marijuana. Federal law makes marijuana an illegal drug, but several states have either legalized recreational pot—or are considering doing so. What would you do about this contradiction? Do you favor changing the federal classification of marijuana as a dangerous drug?...
Capital Punishment. Do you favor capital punishment for terrorism or other heinous federal crimes?...
Overcriminalization. Do you believe we have overcriminalized too many behaviors that pose little or no danger to public safety? If so, what will you do about it?
Recent related post:
Is resignation of current DEA head a very big moment for federal marijuana policy?
The question in the title of this post is prompted by a number of stories I have seen in the wake of yesterday's news that Michele Leonhart is resigning as Administrator of the Drug Enforcement Administration. Here are links to some of these stories:
From Bloomberg here, "Marijuana Activists Cheer Michele Leonhart's Exit from the DEA"
From the Daily Caller here, "Marijuana Advocates Thrilled At DEA Administrator’s Expected Resignation"
- From The Hill here, "Marijuana advocates push for new pot-friendly DEA chief"
The last story linked here highlights what will really determine the answer to the question in the title of this post: if President Obama nominates somebody for this position who expresses openness to federal marijuana reforms and a serious commitment to a more public-health oriented approach to all drug enforcement issues (e.g., Dr. Sanjay Gupta?), the transition at the top of DEA could end up being a very big deal.
Cross-posted at Marijuana Law, Policy & Reform
April 21, 2015
"Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"
The title of this post is the title of this notable new and timely paper concerning the potential impact of the Supreme Court case re-argued yesterday. The piece is authored by Leah Litman, and here is the abstract:
This Essay examines the impact a favorable decision in Johnson v. United States could have at the various stages of post-conviction relief for three categories of prisoners -- prisoners whose convictions have not yet become final; prisoners whose convictions have become final but who have not yet filed a petition seeking post-conviction relief; and prisoners whose convictions have become final and who have already filed at least one petition seeking post-conviction relief. In doing so, it offers a reading of the relevant cases and statutes that permits any defendant sentenced under the Armed Career Criminal Act to obtain relief based on a decision invalidating the residual clause. It also highlights some under-explored statutes and doctrinal questions that courts will confront as they determine which prisoners should be resentenced in light of Johnson.
April 21, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Lots of inside DOJ news emerging from inside the Beltway
My sentencing students often get tired of hearing me talk about the importance of WHO sentences and who sets sentencing policies, but these two new news stories out of Washington DC are all about personnel issues in the US Department of Justice:
"What's the Matter with Cumulative Error?: Killing a Federal Claim in Order to Save It"
The title of this post is the title of this notable new paper concerning federal habeas review authored by Ryan Semerad now available via SSRN. (For the record, Ryan happens to be one of (many) wonderful students in my sentencing class this spring, but I am pretty sure he hd finished most of this article before I started polluting his mind.). Here is the abstract:
This Note investigates the inefficacy of cumulative error claims raised by state death row inmates in their federal habeas corpus petitions. It surveys modern federal habeas precedents giving rise to cumulative error claims, investigates the various circuit standards used in evaluating these claims, and concludes that these claims fail due to the confluence of vague historical precedent and increasingly restrictive federal habeas law. It recommends constructing a mandatory pre-federal habeas review procedure wherein claims of cumulative error are evaluated on the merits by all the stakeholders in the state criminal justice systems in order to ensure the integrity of that system and the reliability of criminal convictions and sentences.
By 6-3 vote, SCOTUS finds Fourth Amendment violation from stop at start of federal drug prosecution
The US Supreme Court handed down a notable Fourth Amendment ruling this morning in Rodriguez v. US, No. 13-9972 (S. Ct. April 21, 2015) (available here). Though not a sentencing case, I cannot help but wonder if some votes on the case were somewhat influenced by the federal drug war setting that raised the import and stakes for the Fourth Amendment issue brought to the Justices. Here, for starters, is the start of this Court's opinion per Justice Ginsburg:
In Illinois v. Caballes, 543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment’s proscription of unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, there fore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation. Id., at 407. The Court so recognized in Caballes, and we adhere to the line drawn in that decision.
Notably, this federal criminal case started with a seemingly routine traffic stop based on a Nebraska driver veering to avoid a pothole and ended with a federal drug prosecution requiring the defendant to serve a mandatory minimum 5-year federal prison term for possessing 50 or more grams of meth with intent to distribute. I cannot help but think these contextual realities played some (perhaps unconscious) role in a majority of the Justices concluding that the extension of the traffic stop was unconstitutional with this kind of statement: "Highway and officer safety are interests different in kind from the Government’s endeavor to detect crime in general or drug trafficking in particular."
Here is how the primary dissent by Justice Thomas in Rodriguez gets started:
Ten years ago, we explained that “conducting a dog sniff [does] not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reason- able manner.” Illinois v. Caballes, 543 U. S. 405, 408 (2005). The only question here is whether an officer executed a stop in a reasonable manner when he waited to conduct a dog sniff until after he had given the driver a written warning and a backup unit had arrived, bringing the overall duration of the stop to 29 minutes. Because the stop was reasonably executed, no Fourth Amendment violation occurred. The Court’s holding to the contrary cannot be reconciled with our decision in Caballes or a number of common police practices. It was also unnecessary, as the officer possessed reasonable suspicion to continue to hold the driver to conduct the dog sniff. I respectfully dissent.
Here is how a distinct dissent by Justice Alito in Rodriguez gets started:
This is an unnecessary, impractical, and arbitrary decision. It addresses a purely hypothetical question: whether the traffic stop in this case would be unreasonable if the police officer, prior to leading a drug-sniffing dog around the exterior of petitioner’s car, did not already have reasonable suspicion that the car contained drugs. In fact, however, the police officer did have reasonable suspicion, and, as a result, the officer was justified in detaining the occupants for the short period of time (seven or eight minutes) that is at issue.
April 20, 2015
Anyone have predictions for the penalty phase of the Boston Marathon bombing trial?
As highlighted by this new AP article, headlined "Bombing trial enters penalty phase amid life or death debate,"the real legal intrigue surrounding the capital trial of the Boston Marathon bombing is about to begin:
The guilt phase of Boston Marathon bomber Dzhokhar Tsarnaev's trial was considered a slam dunk for prosecutors, especially after his lawyers bluntly admitted during opening statements that he participated in the deadly 2013 attack. But the outcome of the next phase of the trial is much more difficult to predict. The same jury must decide whether Tsarnaev, 21, should be put to death or spend the rest of his life in prison. The penalty phase begins Tuesday in U.S. District Court.
Debate over whether Tsarnaev should get the death penalty intensified recently after the parents of Martin Richard, an 8-year-old boy who was killed in the bombings, urged federal authorities to consider taking death off the table in exchange for Tsarnaev spending the rest of his life in prison and giving up his rights to appeal....
A married couple who lost limbs in the attack also asked the U.S. Justice Department not to pursue the death penalty. "If there is anyone who deserves the ultimate punishment, it is the defendant. However, we must overcome the impulse for vengeance," Jessica Kensky and Patrick Downes said in a statement to the Globe Sunday....
Others have said they favor the death penalty for Tsarnaev. Liz Norden, whose two adult sons each lost a leg in the bombings, said nothing short of execution is warranted. "He destroyed so many families that day," she said. "I want the ultimate justice."
Legal experts differ on whether the pleas from victims will persuade the federal government to drop its bid for the death penalty. "If the Justice Department seriously takes into consideration the feelings of the family members in this case, they have every justification to take death off the table," said Robert Dunham, executive director of the Death Penalty Information Center.
But New York Law School professor Robert Blecker said the Justice Department has to consider the larger question of denouncing terrorism. "They'll go forward with it. It will not change the decision. Denunciation is a legitimate purpose," Blecker said....
During the penalty phase, the defense will continue to portray Tsarnaev's brother, Tamerlan, 26, as a domineering follower of radical Islam who convinced his then 19-year-old brother that America had to be punished for its wars in Muslim countries. Tamerlan died four days after the bombings when he was shot during a firefight with police and run over by Dzhokhar during a getaway attempt.
Prosecutors are expected to emphasize the brutality of the bombings by calling more survivors to testify. During the first phase, several survivors testified about devastating injuries, including lost limbs....
If even one juror votes against the death penalty, Tsarnaev will get a life sentence.
New Sentencing Commission data reveal within-guideline sentences now rarer than non-guideline sentences
The US Sentencing Commission today released on this webpage its latest, greatest federal sentencing data for all of Fiscal Year 2014 and the first quarter of FY 2015. Here are links to these two new data runs:
First Quarter FY15 Quarterly Sentencing Update (Published April 20, 2015)
Final FY14 Quarterly Sentencing Update (Published April 20, 2015)
I thought Fiscal Year 2014 was likely to be a quirky year for federal sentencing data, primarily because (1) in January 2014, the Commission indicated it probably would reduce the drug sentencing guidelines across the board, and (2) in March 2014, the Attorney General indicated that he supported having the new-reduced-guidelines informally applied in on-going drug cases even though they would not become official until November 2014. Because of this big pending guideline change to a big chunk of federal sentencing cases, I was not surprised that throughout much of Fiscal Year 2014, a majority of sentences did not come within calculated guideline ranges.
Sure enough, the complete USSC data now show that, while FY 2013 had 51.2% of all cases sentenced within the guidelines, in FY 2014 that number dropped significantly to 46%. In other words, less than half of all federal sentences throughout FY 2014 were within-guideline sentences, and it seemed likely that the big change in the overall data from just the prior year largely reflected a drug-sentencing-guideline transition dynamic.
But my view on the overall data story has changed somewhat now that the Commission has released its First Quarter FY15 Quarterly Sentencing Update. I am pretty sure (though not certain) that most drug sentences imposed during the first quarter of FY15 should involve the new-and-improved drug guidelines and thus the transition to the new guidelines should not dramatically distort the overall FY 2015 data (although there is a one-month difference between when the USSC fiscal year and its new-guideline year gets going). But, fascinatingly, the new data reveal that, even with the new guidelines in place, still less than half of all sentences at the start of FY 2015 were within-guideline sentences: specifically, only 46.5% of all sentences in the first quarter of FY 2015 were within-guideline sentences.
For various reasons, this too-brief discussion of USSC data perhaps only highlights how hard it is for me in this space to effectively account for and explain basic federal sentencing data. But, as the title of this post suggests, I think the latest data run now provides reason to believe hat a typical federal judge in a typical case (whatever than means) is now typically a bit more likely to impose a non-guideline sentence rather than a within guideline sentence.
"Local Cook County Prosecutors To Focus On Treatment Over Prison For Small-Time Drug Cases"
The title of this post is the headline of this notable local news story emerging today from Chicago. Here are the details:
Cook County prosecutors were set to announce major changes in how they prosecute low-level drug cases, including sending more nonviolent drug offenders to treatment, rather than prison.
State’s Attorney Anita Alvarez was scheduled to announce reforms to how her office handles minor drug cases, including dismissal of all future misdemeanor marijuana cases. The move also is expected to cover how prosecutors handle cases involving small amounts of other drugs; including ecstasy, cocaine, and heroin. The program would be focused on defendants with less than three arrests or citations for misdemeanor drug charges.
The announcement comes on April 20, also known as “4-20” day, in reference to a term used by marijuana smokers as slang for “lighting up,” but officials said the timing of the announcement and the date were only coincidental.
Alvarez was expected to detail the new drug prosecution strategy Monday morning, as part of an effort to keep nonviolent repeat drug offenders out of jail, and instead treat such cases as a public health issue. A spokeswoman for Alvarez’s office said, defendants currently facing a Class 4 felony drug possession charge could be sentenced to up to 3 years in prison, and a $25,000 fine. Her proposed changes to drug prosecutions would mean those same defendants would be sent to treatment programs instead of prison.
The move could free up prosecutor and law enforcement resources. In Cook County, such Class 4 felony drug cases made up 25 percent of all felony prosecutions last year. It was not immediately clear when the reforms would go into effect, but the changes would not affect pending cases already in the system.
Intricate federal criminal law statutory questions on SCOTUS docket this week
Most casual Supreme Court fans are surely looking ahead to next week's oral arguments in the same-sex-marriage and lethal injection cases. But this week brings two other exciting and intricate cases before SCOTUS for federal criminal justice fans, as these SCOTUSblog brief summarizes reveal:
Johnson v. US, No. 13-7120: Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act [and whether ACCA's residual clause is unconstitutionally vague].
McFadden v. US, No. 14-378: Whether, to convict a defendant of distribution of a controlled substance analogue -- a substance with a chemical structure that is “substantially similar" to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect) -- the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.
Regular readers know that the Johnson case is getting a second argument this week after SCOTUS asked the parties to brief the constitutional issue it raised on its own after the first oral argument. And helpful Rory Little via SCOTUSblog provides these informative new posts with more on what can be expected in this week's arguments:
In addition, Garrett Epps has this extended new Atlantic piece discussing both Johnson and McFadden headlined "Too Vague to Be Constitutional: Two indecipherable criminal laws passed in the 1980s now face scrutiny at the Supreme Court."
April 19, 2015
Highlighting the mental illness underbelly of modern incarceration
The front-page of my own Columbus Dispatch today has this effective article about my state's prison population headlined "Ohio’s prisons hold 10 times as many mentally ill as its psychiatric hospitals do." Here are excerpts:
The largest provider of mental-health services in Ohio is easy to find: Look no farther than the nearest state prison. More than 10,500 people in Ohio prisons, more than 1 in 5, have a diagnosed mental illness. And 1 in 12 has a serious and persistent condition such as schizophrenia or bipolar disorder. There are 10 times as many mentally ill inmates as there are patients in Ohio’s six psychiatric hospitals.
The numbers are higher for females: 41 percent of 2,510 inmates at the Ohio Reformatory for Women in Marysville are on the mental-health caseload.
Terry Russell, executive director of the National Alliance on Mental Illness Ohio, said these alarming figures are no accident. “These people are generally not in prison because they are criminals,” he said. “Most people that end up there are the most severely mentally disabled who get into trouble because they are untreated or resistant to treatment. Families many times desert them or don’t know how to help. They end up in the street, which puts them in harm’s way. In most cases, law enforcement gets involved.”...
Taxpayers pay the hefty tab for the 10,596 mentally ill inmates. The Ohio Department of Rehabilitation and Correction spent $41.7 million on mental-health care and medications in fiscal year 2014 and is projected to spend $49 million this year. That is on top of the $22,836 annual overall cost per inmate.
Gary Mohr signed up to run state prisons, not mental-health facilities, but he’s doing both. Cognizant of the issues, and the costs related to mentally ill inmates, Mohr opened residential treatment units at four prisons, including the Marysville facility. He is opening a fifth at the Grafton Correctional Institution. And he is hiring 27 more mental-health staffers and adding beds at the Allen Oakwood Correctional Facility in Lima, where seriously mentally inmates are housed.
Mohr said he is relaxing the long-standing policy of segregating mentally ill inmates with behavioral problems. “We are coming up with a policy where we do not keep inmates who are mentally ill in long-term isolation. Segregation is our default sanction, but our goal is to ensure that the behavior that got them there doesn’t happen again. This is going to be a major reform in Ohio and across the U.S."
Mohr also is pushing for greater support and more funding for mental-health courts, currently in just eight of 88 counties, to divert mentally ill people to less-costly, more-effective programs. “If these courts become familiar with the issues and can find suitable placements, particularly with Medicaid, we ought to be doing that instead of just launching them into prison.”
Dr. Kathryn Burns, chief psychiatrist in the prison system, said people with mental illnesses typically get arrested more often because their untreated behavior brings them into conflict with law enforcement. In the legal system, they have fewer chances of getting community treatment or probation because judges have limited options. The offenders have burned bridges with family members and in the community. Prison is often the last resort....
The expansion of the federal Medicaid program by Gov. John Kasich’s administration is making a big difference.... While Medicaid can’t be used to treat inmates in prison, it applies once they are discharged. The state has signed up all female prisoners for Medicaid and is working to enroll the men.
While there are encouraging developments, NAMI Director Russell remains troubled that prisons have become asylums for the mentally ill. The organization’s statewide conference on Friday and Saturday at the Hyatt Regency will focus on “criminalization” of the mentally ill. “We just have no place for those individuals who are ill enough to be in harm’s way but are not ill enough to end up in a hospital,” he said. “Criminalizing the mentally ill just makes no sense from a treatment and economic standpoint.”
After mistrial and plea deal, prominent accused child molestor in Delaware gets probation sentence
As noted in this recent post, there has been considerable controversy in California over a state judge earlier this month sentencing a teenager who pleaded guilty to a single child sex offense to "only" 10 years of imprisonment, a term well below the applicable 25-year mandatory minimum statutory sentencing term. (Bill Otis here at Crime & Consequences also complained about the judge's sentencing decision California case). With that recent case in mind, a notable contrast in context and outcomes emerges from this child sex offense story from Delaware. Here are the dynamic details (with a few bits of the story highlighted for subsequent comment):
Eric Bodenweiser — once a standardbearer of the Sussex County tea party, described by voter after voter in 2012 as a trustworthy Christian man — was sentenced to one year of probation Friday for committing two acts of unlawful sexual contact against a young boy in the 1980s. A judge sentenced Bodenweiser to a year in prison, but suspended it in lieu of the probation term. If Bodenweiser obeys the conditions of probation, he will not return to confinement. He must also register as a Tier 1 sex offender....
The sentence for Bodenweiser, 56, of Georgetown closes a scandalous chapter in Sussex politics. But for his indictment on more than 100 sex offenses in October 2012, Bodenweiser would likely be a state senator today, and not a sex offender. He had handily beaten an incumbent Republican senator in the September 2012 GOP primary in a district Democrats weren't likely to win. Days before his arrest, he abandoned his campaign.
Bodenweiser pleaded not guilty, and after a weeks-long trial in 2014, a jury was unable to reach a unanimous verdict on any one of 15 counts prosecutors brought in front of them. After the mistrial, Bodenweiser convinced Bradley any fair retrial would have to happen outside Sussex County because of the case's intense publicity and news coverage.
Prosecutors struggled, meanwhile, to keep the victim out of trouble. The man, who was in middle school when Bodenweiser was in his early 20s, lost his temper more than once on the stand under caustic questioning from Bodenweiser's attorney, Joe Hurley. And after the first trial ended, he was charged by Delaware State Police with a gun offense.
But before a second trial began, Bodenweiser accepted a plea offer from prosecutors on March 18, pleading no contest to two less serious crimes with the knowledge it meant a guilty verdict.
The victim, now in his late 30s, testified that repeated sexual advances and assaults by Bodenweiser affected him deeply. "I couldn't understand why it kept happening and why he wanted me to do these things," the man said last year in court. "I thought something was wrong with me." He came forward after years of silence, he testified, because he was alarmed Bodenweiser was about to win the election.
At his trial, Bodenweiser was charged with but ultimately not convicted of raping the victim, forcing him to take part in complete sex acts. That, though, is not what he pleaded no contest to in March; his pleas were for the lesser offenses of unlawful sexual contact, of "touching the genitalia" of the boy, as prosecutor John Donahue said in court.
Bodenweiser took the stand at trial to deny exposing the boy to anything more salacious than an occasional glimpse of pornography. His pastor, though, testified that in the fall of 2012, Bodenweiser told him "there's something there, there," in the context of discussing the accusations. Hurley fought hard, court records show, to have the pastor's testimony excluded from trial.
In my discussion of the California sex offense sentencing case over at Crime & Consequences, I stressed that I am generally more concerned about prosecutorial discretion than judicial discretion because of how opaque and consequential prosecutorial discretion can be. In this case, I cannot help but wonder if politics played a role in the timing of the prosecutorial decision to indict a up-and-coming outsider politician for over 100 sex offenses that allegedly took place 25 years earlier. Notably, the defendant had his political career ruined just by the prosecutorial decision to indict on so many salacious charges.
Despite his career being ruined just by the charges, the defendant here exercised his right to require the prosecution to prove up its case in a public trial. Once a public open trial was required, prosecutors apparently decided only to seek to prove up 15 of the 100+ alleged offenses, which makes me further question the evidentiary basis for the 100+ charges in the initial indictment. And even with only its 15 strongest charges now in play, the prosecutors could not convince a jury that the defendant as guilty of a single charged offense.
Thereafter, perhaps because prosecutors finally realized how weak their case was now that it was subject to public review and scrutiny, prosecutors decided they could be content with the defendant getting sentenced to probation for what they previously alleged was 100+ sex offenders. But still eager to have this defendant forever officially branded a sex offender, the prosecutors sought to cut the defendant a deal he could apparently thought unwise to refuse.
I am not asserting that state prosecutors here did anything wrong in the way they handled this notable child sex offense case. What I am saying is that I would like a whole lot more information about how and why state prosecutors did what they did. But, to my knowledge, there are no ready means for me or anyone else in the general public to get more information or understanding about what may have (and have not) influences prosecutorial decision-making in this matter.