« July 30, 2017 - August 5, 2017 | Main | August 13, 2017 - August 19, 2017 »

August 12, 2017

"Trump Wants to Get Tough on Crime. Victims Don’t Agree."

The title of this post is the headline of this intriguing New York Times piece about the results of this interesting recent survey of "crime survivors." Here are excerpts:

Sending more people to prison, deporting illegal immigrants, cracking down on marijuana use — those are some of the things the Trump administration has said will make America safer.  But what do crime victims think about all this? It is a group whose views are rarely measured, but a poll commissioned by the Alliance for Safety and Justice sought to find out.

A few notes of caution: The group supports criminal justice reform, including incarcerating fewer people, and seeks to promote the voices of victims who agree.  And the random survey, which has a margin of sampling error of 3.4 percent, was taken in May, before President Trump repeatedly criticized Jeff Sessions, the attorney general, on Twitter.

But it is a rare chance to hear from victims, more than 800 of whom were asked about their views on the administration’s criminal justice policies.  By and large, their priorities appear very different from the president’s.

Half of respondents said they felt less safe since Mr. Trump took office, though it was not clear that this was because of his approach to criminal justice.  Only 39 percent said they felt less safe when Mr. Trump discussed crime or criminal justice.  But when the president posts on Twitter, the number who feel less safe jumps to 57 percent, according to the survey.

About three in four said they were happy with their local police and law enforcement in general. While only about 42 percent rated Mr. Trump favorably, that was higher than the president’s favorability rating among the general population at the time. About a third held positive views of Mr. Sessions.

When victims were asked to name two things that contributed most to crime in their communities, just 12 percent blamed undocumented immigrants.  Almost nobody thought there were too few people in prison.  Instead, more than half named drug and alcohol addiction, and nearly a third pointed to poor parenting.  Mental health issues and a lack of job opportunities also ranked high on the list.

“‘Lock ’em up and throw away the key,’ that’s the traditional way of thinking, but many victims don’t want ‘tough on crime’ and incarceration,” said Aswad Thomas, 34, who was shot twice in the back during a robbery attempt in Hartford in 2009, ending his plans to play professional basketball. “Most of us want more rehabilitation services for crime victims.”

Mr. Thomas, now the membership director at the Alliance, said once he found out that both of the young men who had shot him had been victims of crime themselves, he became convinced that offering counseling and trauma services to victims could itself help reduce violent crime.

A vast majority of respondents supported increasing treatment for addiction and mental health, while they were less enthusiastic about Trump administration policies like seeking the maximum punishment for drug offenders and increasing deportations, which only 40 percent of respondents favored.  Nearly two-thirds said they did not want federal drug laws to be enforced in states where marijuana use has been legalized....

A majority of respondents — 84 percent — said additional funding should be spent on rehabilitation and drug and mental health treatment programs for people in the justice system. Some views held true despite the respondents’ political leanings. Among those who said they held a favorable opinion of Mr. Trump, more than half chose addiction as a leading driver of crime.

August 12, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (12)

Interesting and consequential Florida Supreme Court decision on retroactivity of Hurst

As this Death Penalty Information Center posting details, the Florida Supreme Court this past week reiterated that it would not apply retroactively its rulings requiring unanimous jury verdicts for death sentences to cases made final by June 2002 when SCOTUS decided Ring v. Arizona. The Florida court's per curiam opinion in Hitchcock v. Florida, No. SC17-445 (Fla. Aug. 10, 2017) (available here), mostly just restates a prior retroactivity ruling, but concurring and dissenting opinions make for interesting reads on retroactivity doctrines and policies.

As the DPIC posting notes, "Hitchcock's case was closely watched because the Florida courts had frozen the briefing schedules for 77 similarly situated death-row prisoners who also were arguing that Hurst should be enforced in their cases." I suspect most, if not all, of these prisoners will not be seeking certiorari to the US Supreme Court, but I would be surprised if SCOTUS takes up any of their cases.

August 12, 2017 in Apprendi / Blakely Retroactivity , Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

August 11, 2017

Lamenting the role of prosecutors in continued pursuit of juve LWOP sentences

This New York Times op-ed by Rashad Robinson zeroes in on the role of prosecutors in the continuance of juve LWOP sentences in the wake of Graham and Miller.  The piece is headlined "No Child Deserves a Life Sentence. But Try Telling Prosecutors That." Here are excerpts:

In 2012, the Supreme Court took a step toward righting a terrible wrong by banning mandatory life sentences without the possibility of parole for children. Last year, the court said that ban should apply retroactively: It told prosecutors to conduct resentencing hearings for the approximately 2,500 people who were serving life sentences for crimes they committed as adolescents. Many of them had been in prison for decades.

But if you walked into many courthouses today, you wouldn’t know that the Supreme Court had called for resentencing these juvenile offenders, the majority of them black. That’s because prosecutors are choosing to pursue life-without-parole sentences for these cases again.  Part of the problem is that the court kept the door open for overreach when it allowed prosecutors to impose a life sentence on the rare defendant who is “irreparably corrupt” and “permanently incorrigible.”

Consider Michigan, where prosecutors are denying parole or shorter sentences for 60 percent of juvenile lifers, even in cases where parole boards have recommended them. In Oakland County, northwest of Detroit, the share is a whopping 90 percent. While nearly half of all juvenile lifers are concentrated in Michigan, Pennsylvania and Louisiana, prosecutors elsewhere, like Scott Shellenberger in Baltimore County, Md., who has opposed ending such sentences for children, have also effectively thumbed their nose at the court’s ruling.

On top of this, many prosecutors are resentencing juvenile lifers to de facto life-without-parole sentences. The district attorney of Orleans Parish in Louisiana defended a “reduced” sentence for a juvenile lifer to a term that would have let him leave prison at age 101. (A Louisiana Supreme Court justice later reprimanded the district attorney for this “stunning” and “constitutionally untenable” position).

This is happening not because our prisons are full of unrepentant juvenile offenders who can never be rehabilitated, but because of a racist structure of perverse incentives that encourages prosecutors to pursue mass incarceration instead of justice.

For decades, prosecutors have sought high conviction rates and long sentences in the belief that appearing tough on crime would advance their careers. Indeed, prosecutors in any given local district or state attorney’s office, from the most junior rookie to the top elected official, tend to view their career prospects through the lens of average sentence length....

Black communities have borne the brunt of this overzealous approach, and racial disparities can be found anywhere prosecutors have control over sentences.  But in recent years, this racist incentive structure has begun to shift, as multiracial coalitions led by black Americans have elected prosecutors across the country who value safety and justice.  This is no liberal pipe dream, but it does require sustained activism and perseverance.  That’s what it took last November when voters in Chicago, Houston and other cities ousted prosecutors who were not serving their interests and elected reform-minded candidates. In those cities, community advocates and my organization, Color of Change, helped make criminal justice issues a key part of the debate.

But communities must work to hold all prosecutors accountable, even those who promise reforms.  Prosecutors are the most powerful actors in the criminal justice system; they aren’t going to start caring about the Supreme Court’s rulings on juvenile sentences and other vital reforms until voters give them a reason to.

Though there are evident racial skews in who gets subject to the most severe sentences in the US, I struggle to understand just how the political pressure and benefits that prosecutors experience from appearing tough on crime amounts to a "racist incentive structure."  Having prosecutors regularly subject to voter concerns through local elections creates what might be called a "politicized" or "majoritarian incentive structure," but I am not sure I see how the label "racist" is a sensible or helpful way to describe the traditional election process facing many local prosecutors.  I wonder if this author would likewise assert that mayors or local representatives (or other elected local officials who also can in various ways impact the operation of criminal justice systems) are subject to a "racist incentive structure" that impacts their governmental decision-making.

Because this op-ed ai part of a wave of important recent advocacy and scholarship emphasizing the importance of prosecutorial decision-making, I do not wish to make too much of my puzzlement over the assertion that local prosecutors are subject to a "racist structure of perverse incentives."  But I do wish to hear from anyone who might help me better understand what the author has in mind when referencing the "racist incentive structure" facing prosecutors.

August 11, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

"Certain Certiorari: The Digital Privacy Rights of Probationers"

The title of this post is the title of this new paper available via SSRN authored by Daniel Yeager. Here is the abstract:

In a recent oral argument, a judge on the California Court of Appeal told me they had “at least 50” pending cases on the constitutionality of probation conditions authorizing suspicionless searches of digital devices.  As counsel of record in three of the cases, I feel positioned to comment on this hot topic within criminal law.  My intention here is less to reconcile California’s cases on suspicionless searches of probationers’ digital devices than to locate them within the precedents of the United States Supreme Court, which is bound before long to pick up a case for the same purpose.

Specifically, the Court is bound to hear whether Riley v. California — its 2014 ruling excluding content found on digital devices in warrantless searches of arrestees’ grab-area — applies to probationers.  David Riley’s case arose out of his 2009 arrest by San Diego police, who had lawfully found firearms under the hood of his car.  Incident to Riley’s arrest, police found evidence of his gang membership in a search of his cell phone, which placed itself at an unsolved shooting.  Riley’s subsequent convictions were based on that evidence, which he sought without success to exclude until the Supreme Court reversed in Chief Justice Roberts’s hommage to cell phones — life-altering instruments which a “visitor from Mars might conclude were an important feature of human anatomy.”  Riley has since been cited over 3,000 times as a Fourth Amendment tract that privileges the “privacies of life” over the “often competitive enterprise of ferreting out crime.”

But what, exactly, are Riley’s implications? Is it just a technical ruling on the privacy interests only of arrestees, with no specific applicability to post-conviction phases of criminal cases?  Because the Court’s most on-point precedents — one involving a probationer (United States v. Knights), the other a parolee (Samson v. California) — indicate no stance on Riley’s applicability beyond the arrest context, California courts improvidently consider those precedents legal non-events.  One way or another, the Court will inevitably settle the matter itself, almost certainly within one of the seven electronics-conditions cases now on review in the California Supreme Court.  This Essay details why and how.

August 11, 2017 in Collateral consequences, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

August 10, 2017

A reminder of why an active death penalty system in the US now seems so unlikley

Arguably the US has never had an active death penalty system, though there were a few hundred executions each year during the first decades of the 20th Century.  In the so-called modern death penalty era since 1976, the most completed executions in a single year was 98 (in 1999); there have been fewer than 50 executions in nearly every year over the last decades, and only 20 completed executions in 2016.  (This page from the Death Penalty information Center provides these recent details.)

As I have mentioned before, I find it notable that all the new law-and-order talk coming from the Trump Administration has not really included talk of ramping up use of the death penalty.  That, in my view, is a mark of a achievement by the abolitionist movement.  Another mark is the extraordinary difficulty these seems to be in securing death sentences, as discussed in this new Injustice Today piece headlined "Even in the deep red South, death sentences are on the decline." Here is an excerpt:

Twenty years ago, a brutal murder in a red state like Mississippi would likely guarantee a death sentence for a defendant.  But as last week’s sentencing of Scotty Lakeith Street illustrates, juries in the South and across the country continue to shift away from capital punishment.  In 1997, four people in Mississippi were sentenced to death; last year, 2016, not one person was. Street was sentenced to life without parole for stabbing retired teacher Frankie Fairley to death in 2014. The jury in Street’s trial, faced with a choice between the death penalty or life in prison, couldn’t reach a unanimous verdict, and split 10–2....

Those that opted for life without parole may have been swayed by Street’s extensive history of mental illness. As reported by WLOX, jurors heard testimony from his sister that Street had “been institutionalized so much, it’s beyond my count.” Street’s lawyers also presented testimony from a mental health provider who explained that Street suffered from schizophrenia and “needed to be in a group home with a caregiver.”  Street was also reported to have displayed “bizarre behavior,” including “putting plastic bags on his head to keep his brain from leaking out and running naked in public with objects tied to his scrotum.”...

Mental illness aside, death sentences are on the decline across the country.  Last year, 30 people were sentenced to death in the U.S., while in the mid-1990s, more than 300 people received capital sentences.  That decline in popularity is reflected in Street’s case, as well as in other Mississippi capital cases.  Though the death penalty’s legality remains alive and well, juries across the country are rejecting it.

August 10, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Notable new coverage of possible notable new appointment to US Sentencing Commission

Beth Reinhard has this interesting new Wall Street Journal article headlined "Sessions Promotes Tough-On-Crime Judge for Sentencing Panel."  The subheadline of this piece reports the core story: "Attorney General urges White House to nominate judge once nicknamed ‘Hang ’Um High’ Henry Hudson to panel that issues sentencing guidelines."  And here are excerpts:

Attorney General Jeff Sessions is urging the White House to nominate a federal judge and tough-on-crime ex-prosecutor once nicknamed “Hang ’Um High” Henry Hudson to an independent, bipartisan panel that issues sentencing guidelines.  Mr. Sessions’ recommendation for one of three openings on the U.S. Sentencing Commission, confirmed by people familiar with the process, reflects the Justice Department’s broader crackdown on violent crime, including the reversal of several Obama -era policies.

The department is urging the commission to toughen sentences for certain violent criminals, drug offenders, illegal immigrant smugglers and so-called career offenders.  In its annual report to the commission, the department asked it to preserve the long, mandatory-minimum sentences that supporters say help fight crime but critics say inflate prison costs and disproportionately hurt minority communities without improving public safety.

President Donald Trump, who campaigned on a promise to “restore law and order,” has the authority but is under no requirement to fill two Republican vacancies and one Democratic spot on the seven-seat commission.

Judge Hudson, who has acknowledged his colorful nickname, was a candidate for FBI director earlier this year.  He is best known for sending pro-football quarterback Michael Vick to prison in 2007 for running a dogfighting ring and for finding unconstitutional a key provision of the Affordable Care Act in 2010.

“I’m excited about the opportunity to serve on the commission,” Judge Hudson, who serves in the U.S. District Court in Richmond, Va., said in a telephone interview Thursday. “I’d like to make sure the guidelines are fair and consider every possible factor in a case.”

Mr. Hudson would be the first new commission member tapped by Mr. Trump, who has reappointed two members previously nominated by former President Barack Obama. A White House official declined to discuss Mr. Hudson’s prospects, but said the administration is committed to filling all federal vacancies....

Mr. Hudson would be expected to shake up the low-profile but powerful panel, which has produced research on the prison population, recidivism and sentencing that advocates have cited in pressing for an overhaul of the criminal justice system.

In its most consequential decision in recent years, the commission in 2014 rolled back penalties for most federal drug offenses, allowing more than 30,000 inmates to seek reduced sentences and helping to trim the federal prison population for the first time in decades. That trend is expected to reverse under Mr. Sessions, a former U.S. attorney and senator from Alabama. After a string of major overhauls of Obama administration policies that sought to curb potential abuses by police and prosecutors Mr. Sessions is now seeking to make his mark on the sentencing commission.

“That is the place where the biggest sentencing reforms have been made in Washington, in that nothing the White House or Congress has done comes close,” said Kevin Ring, president of Families Against Mandatory Minimums, which favors lighter sentencing. “This little agency is a big deal and Sessions wants to exercise his influence, which is shaping up into a fight.”

Among Mr. Sessions’ recommendations is a proposal that the Sentencing Commission reduce the quantity of fentanyl, an opioid, that triggers a sentence of 10 to 16 months for possession with intent to sell. Stiffer penalties weren’t one of a slate of recent proposals made by the president’s task force on opioids, which included expanding treatment through the Medicaid program....

Mr. Hudson declined to comment on his own sentencing of some defendants to decadeslong mandatory-minimum sentences. “I’m anxious to hear the debate and hear everyone’s viewpoint,” he said. “I won’t come to the sentencing commission with any preconceived notions.”

In a 2007 memoir titled “Quest for Justice,” Mr. Hudson recalled that police in Arlington, Va., wore campaign buttons that said “I voted for “Hang ’Em High Henry” during his re-election campaign as a state prosecutor in the early 1980s. “I didn’t reject that nickname, nor did I solicit it,” he said Thursday. “My record as a judge speaks for itself.”

As a state prosecutor in liberal-leaning northern Virginia, Mr. Hudson shut down adult bookstores and massage parlors. That led to his chairmanship of former President Ronald Reagan’s national commission on pornography, which linked porn to violence. He was director of the U.S. Marshals Service during the 1992 deadly siege at Ruby Ridge, Idaho.

He also stirred controversy for prosecuting a mentally disabled man for the murder of a woman in 1984. David Vasquez served five years in prison before DNA and other evidence exonerated him. “I certainly wish him the best and regret what happened,” Mr. Hudson wrote in his memoir, saying he remained convinced of his involvement in the murder.  “However, I offer no apologies.”

I do not know enough about Judge Hudson's sentencing (and political) history to know if he really would be eager or able to "shake up" the US Sentencing Commission, but I do know that advocacy by the US Justice Department always has a big influence on the USSC and that influence is likely only to grow if (and when?) the USSC is populated by Commissioners recommended by the Attorney General.  In recent years under the direction of Judge Patti Saris, who serves as USSC Chair from 2010 to 2016, there seemed to be a concerted effort by the Commission to act only via consensus. If Acting Chair Judge Pryor continues that ethos, it would be hard for a single USSC member to radically reverse the direction of USSC activity (though a single member could be able to block initiatives favored by many other colleagues). This article is written in a way that makes me think Judge Hudson will definitely be nominated to the USSC position, and it will be interesting to see who else might be (soon?) emerging as names for other open USSC spots.

Appropriately, this WSJ article reference the US DOJ's recent letter to the USSC about guideline amendment priorities, which the USSC has made available here.  Unsurprisingly, this letter starts by stressing the crime concerns that have been emphasized by AG Sessions in recent months.   The article fails to note another way AG Sessions can and has exercised some influence, namely through the Justice Department's "ex officio" position on the USSC.  As the end of the DOJ letter reveals (and as the USSC's own website reveals here), AG Sessions has recent put Zachary Bolitho in the role of DOJ's ex officio member of the USSC, whom I believe shares a lot of the "tough-on-crime" perspectives of his long-time boss Steve Cook.   (Zac just happens to be an OSU Law grad and was an award-winning law professor at Campbell Law before his recent re-appointment to DOJ, so I know and greatly respect Zac personally and professionally.) 

August 10, 2017 in Who Sentences? | Permalink | Comments (3)

"Why are we sentencing children to life in prison without parole?"

The question in the title of this post is the headline of this new Newsweek commentary authored by Vincent Southerland and Jody Kent Lavy.  Here are excerpts from the start and end of the commentary:

The barbaric practice of sentencing children to life in prison without the possibility of parole remains one of the most radically inhumane aspects of our criminal justice system.

For those of us who work daily to abolish this practice, the good news is that there are several recent U.S. Supreme Court decisions that deem this brand of sentencing unconstitutional and attempt to limit its use.

The bad news is that despite these decisions and a national trend moving away from this practice, several outlier states and counties refuse to comply with the Supreme Court’s most recent mandate, which effectively banned life without parole for all children capable of rehabilitation.

The shameful news is that the United States is the only country in the world that sentences children to life in prison without the possibility of parole, and that children of color -- African American children in particular -- and children who have been abused and traumatized are disproportionately handed these sentences.

Taken together, these facts lead to a simple conclusion: The time has come to put an end to life without parole sentencing for children....

By tackling our most extreme sentences for children, and acknowledging that this harshest of punishments is imposed disproportionately on children of color coming from some of our most vulnerable communities, we must come to terms with the fact that race and socioeconomic status play a huge role in determining how much compassion the justice system will show a young person.

This should not be the case -- all children are created equal, and there is no such thing as a throwaway child. Our sentencing policies should reflect those truths.

State lawmakers would be well served to join the national trend abandoning the practice of sentencing children to life in prison without a hope of release.  It is imperative that together we work toward a justice system that offers the mercy that all children deserve.

August 10, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners | Permalink | Comments (1)

Making a pitch for the Reverse Mass Incarceration Act of 2017

The Hill has this new commentary authored by former Representative Donna Edwards under the headline "What ever happened to mass incarceration reform?". The piece makes a pitch for the Reverse Mass Incarceration Act, and here are excerpts:

Though it feels like eons ago, the summer of 2016 promised to be one of bipartisan efforts to tackle the issue of mass incarceration. Unfortunately, the summer for criminal justice reform dissolved without fanfare into the craziness of the 2016 election. And, with the confirmation of Attorney General Jeff Sessions, who ushered in a 1980’s throw-back Department of Justice directive on low-level drug offenses, it remains unclear whether there might be a return to a bipartisan approach to criminal justice reform in the 115th Congress.

Nonetheless, a promising alternative strategy to reverse mass incarceration seems to have emerged. In the lead once again is Sen. Cory Booker of New Jersey, joined by former prosecutor, Sen. Richard Blumenthal of Connecticut, both Democrats. In the Reverse Mass Incarceration Act of 2017 (RMIA), the senators apply the lessons learned from the failed approaches of the 1990’s to lower crime and lower incarceration. The bill was modeled off of a Brennan Center proposal of the same name.

When the Violent Crime Control and Law Enforcement Act of 1994 (1994 Crime Bill) passed, a prescient few predicted the extreme escalation of incarceration in the nation’s prisons, a trend that likely began in the two decades before the 1994 law.  According to a recent Brennan Center analysis, even as crime declined by 10 percent from 1991-1994, prison populations exploded pre-1994 by 400 percent and doubled in the decade following the law’s passage.  With today’s well-documented growth in state and federal prison population, most people, including President Bill Clinton, accept that the 1994 incentives he championed were a mistake, rewarding states to build and fill more prisons....

A disproportionate number of people of color fill federal and state prisons. According to The Sentencing Project, more women than ever are behind bars and 60 percent of them have children at home.  In the last three decades incarceration rates for women have outpaced men by 50 percent, a 700 percent rate of growth since 1980.  And, while incarceration rates for African-American women have declined since 2000, twice as many African-American women as white women are incarcerated.  Incarceration rates for white and Hispanic women have continued to increase over the same period, by 56 percent and 7 percent, respectively.

In recognizing the creativity and diversity of states, as well as the overwhelming number of persons incarcerated under their jurisdiction, the RMIA provides incentivizes to states to reduce their incarceration rates.  Rather than mandate states to reduce incarceration, the Reverse Mass Incarceration Act of 2017 would instead enable states that achieve a 7 percent reduction in incarceration rates over 3 years without a significant increase in crime to access a $20 billion grant program.

Unlike the so-called “tough on crime” approaches of the 1990’s, RMIA would support evidence-based programs that reduce incarceration and crime.  Perhaps one of the chief benefits of this approach is behavior changes that occur throughout the system, from the prosecutors and sentencing judges, to the social service providers, to policy makers. These positive incentives can have nationwide impact to reduce incarcerated populations, providing the moral, social and fiscal incentives to help states reverse incarceration.

States are encouraged to be creative and to find solutions that best fit their state.  Eligible states might support ideas like drug treatment, education, job training, diversion or re-entry programs. Some states are engaging in these strategies already, and they and others should be encouraged to do more. The good news is that within the last decade, 27 states have decreased both crime and imprisonment, so there is a path forward....

While Congress may be deeply engaged in the Russia election-meddling investigation, this may be just the time to revive criminal justice reform. The Reverse Mass Incarceration Act of 2017 is a simple and straightforward approach to federal lawmaking, incentivizing good behavior — helping states to do the right thing to curb incarceration and keep communities safe. It’s an approach that’s ripe for bipartisanship.

August 10, 2017 in Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

August 9, 2017

Should and will SCOTUS take up constitutional challenge to Minnesota's sex offender confinement program?

The question in the title of this post is prompted by this effective Minnesota Lawyer article headlined "SCOTUS to mull accepting sex offender lawsuit."  The article reviews a cert petition that has garnered a lot of amici interest, which always increases the odds of SCOTUS interest. Here are excerpts from the start and end of the piece:

A case began in December 2011 as a pro se proceeding by patients in the Minnesota Sex Offender Program disputing the conditions including room searches, restrictive telephone and mail policies and bad food, among other things — that’s how the defendant state of Minnesota characterized it, anyway.  When the petitioners got an attorney, it got re-characterized as a matter of substantive due process.

It’s now pending at the United States Supreme Court, where the justices will consider the patients’ petition for certiorari.  The briefs are all in now — one from the state, two from petitioners and four from amicus curiae supporting the petitioners.

The constitutional issue presented to the Supreme Court is the standard of review that should apply to substantive due process claims brought by the patients. Strict scrutiny, the highest standard, as employed by Judge Donovan Frank?  Or simply a reasonable relation standard, as used by the 8th U.S. Circuit Court of Appeals? And must one’s conscience be shocked by the actions of the respondents, and if so, at what stage of the review?

As the petitioners’ attorney, Dan Gustafson, sees it, the nub of the problem is that once a person is committed, he or she is labeled dangerous and loses the fundamental right to liberty effectively forever under the state system. The state has failed to enact a procedure to make sure that people are able to be released, Gustafson said. The state does have a statutory reduction in custody scheme in place, but it shifts the burden of proof to the patient and it has never resulted in a release until this lawsuit was filed. “We’ve demonstrated that it hasn’t worked for the last 25 years,” Gustafson said....

Four amicus curiae briefs from a spectrum of philosophical points of view have been submitted by friends of the court in Karsjens, et al. v. Emily Johnson Piper, et al. But they all want the Supreme Court to reverse the 8th Circuit, which didn’t have a problem with the program, which had been found unconstitutional by Judge Donovan Frank.

A group of 26 professors of law or related subjects has submitted a brief written by Mitchell Hamline Professor Eric Janus and Minneapolis attorney Richard D. Snyder. The fatal flaw in the MSOP program is that no one gets out, Janus said. “The core of the case is that the state set up what it said was going to be a civil commitment program. And the core definition of that is people get out, and that’s exactly what is missing in the Minnesota program.  It’s not just missing here or there, it’s systemically missing,” Janus wrote.

The Cato Institute, known as a libertarian think tank and an advocate for limited government, is another friend of the court.  Its brief argues, “Sex-offender laws have bored a hole in the nation’s constitutional fabric.  As state and federal governments expand that hole — threatening to swallow other rights and other’s rights — this Court should intervene.”

Also weighing in are criminology scholars and the Fair Punishment Project of Harvard Law School, as well as the Association for the Treatment of Sexual Abusers. The Fair Punishment Project writes that the commitment statute is a punitive scheme that has responded excessively to “moral panic.”  The Association for the Treatment of Sexual Abusers promotes sex offender research and treatment.  It argues that granting review is necessary to take account of important advances in the empirical study of rates of recidivism among sexual offenders; effective assessment treatment, and management of sexual offenders; and factors that influence the effectiveness of treatment interventions.

A few prior related posts:

August 9, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

Still more interesting new "Quick Facts" publications on federal drug sentencing from the US Sentencing Commission

In this post a few month ago, I noted that the US Sentencing Commission had released a notable new Quick Facts covering all "Drug Trafficking Offenses"  (As the USSC explains and reglar readers know, "Quick Facts" are official publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")   Now I see that the USSC has just released this big set of new Quick Facts covering individual drugs:

The data appearing these publications runs through Fiscal Year 2016, which is end of September 2016, and thus they set something of a benchmark for the end of the Obama era before the start of the Trump era of federal criminal policies and practices.

August 9, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (0)

"White-Collar Showdown"

The title of this post is the title of this essay recently posted to SSRN and authored by Mihailis Evangelos Diamantis. Here is the abstract:

The Sentencing Commission and the judiciary do not see eye to eye when it comes to punishing white-collar fraudsters.  Recent survey data collected by Judge Bennett and his co-authors confirms that judges prefer to sentence fraudsters at or below the minimum of the Sentencing Guidelines range.  This article asks whether that data should give the Sentencing Commission pause.  The survey results might just substantiate the Sentencing Commission's worry that judges are prone to cognitive bias in favor of white-collar defendants, with whom they often overlap demographically.

After suggesting that judges have no particular insight into the factors relevant to fraud sentencing, the article assesses the matter from criminal theory first principles: deterrence, rehabilitation, and retribution. It concludes — contrary to the apparent views of most judges and many white-collar criminal law scholars — that we should not be so quick to dismiss the guidelines as too harsh.

August 9, 2017 in Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

August 8, 2017

Too bad AG Sessions is not trying to take prison populations back to the 1980s or even the 1950s

Fe26824f81_the-wayback-machineIt has become popular to lament the various actions of Attorney General Sessions by saying he is taking us back to the 1980s.  Here is a smattering of critical commentary in this vein, the latest of which was published a few days ago in Reason:

Today, though, this Crime Report piece details a claim that AG Sessions has his wayback machine set even longer ago.  The piece is headlined "Sessions Takes DOJ ‘Back to the Fifties,’ Says New John Jay President," and here is how it gets started:

Karol Mason, the new president of John Jay College of Criminal Justice, envisions expanding the school’s role so that it leads the national conversation on innovations in the courts, corrections and policing now that, she says, the U.S. Department of Justice has essentially bowed out, reports The Chief Leader in New York City.

Charging that U.S. Attorney General Jeff Sessions is moving the clock back on justice issues by decades — “I’d say to the fifties” — John Jay is well-positioned to step up, said Mason, who served as an Assistant Attorney General under President Obama.

Without commenting on which decade AG Sessions wants us to be living in, I just thought all this critical discussion of earlier eras provided an appropriate moment to remind everyone how much less the US relied on imprisonment in the 1950s and even the 1980s.

As detailed in this BJS document, back in 1955 the national prison population was just over 185,000, with about 20,000 in federal prison and the other 165,000 in state prisons. In 1985, the national prison population was just over 465,000, with nearly 30,000 in federal prison and the other 435,000 in state prisons.  And as this BJS report detailed, at the end of 2015, the national prison population was just over 1,525,000, with nearly 200,000 in federal prison and the other 1,325,000 in state prisons.  (There has been significant growth in the US population over the last 60 years, so the US incarceration rate has not increased quite as much as total incarceration levels.)  Of course, the Justice Department policies and practices along with changes in state policies and practices in the 1980s played a significant role in the increase in prison populations, and that is the foundation for the considerable hand-wringing about a return to 1980s-era criminal justice thinking.  

August 8, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

"The Practical Case for Parole for Violent Offenders"

The title of this post is the headline of this notable new New York Times op-ed authored by Marc Morjé Howard.  Here are excerpts:

The American criminal justice system is exceptional, in the worst way possible: It combines exceptionally coercive plea bargaining, exceptionally long sentences, exceptionally brutal prison conditions and exceptionally difficult obstacles to societal re-entry. This punitiveness makes us stand out as uniquely inhumane in comparison with other industrialized countries.
To remedy this, along with other changes, we must consider opening the exit doors — and not just for the “easy” cases of nonviolent drug offenders.  Yes, I’m suggesting that we release some of the people who once committed serious, violent crimes....
[S]entencing reform — mainly consisting of reduced penalties for drug-related crimes — has received bipartisan support at both the federal and state levels. But this isn’t enough. We should also bring back discretionary parole — release before a sentence is completed — even for people convicted of violent crimes if they’ve demonstrated progress during their imprisonment.
Other democracies regularly allow such prisoners to be granted reduced sentences or conditional release. But in the United States the conversation about this common-sense policy became politicized decades ago. As a result, discretionary parole has largely disappeared in most states and was eliminated in the federal system. Prisoners whose sentences include a range of years — such as 15 to 25 years, or 25 years to life — can apply to their state’s parole board for discretionary parole, but they almost always face repeated denials and are sent back to wither away behind bars despite evidence of rehabilitation. (Inmates who have served their maximum sentence are released on what is called mandatory parole.)
Rejection is usually based on the “nature of the crime,” rather than an evaluation of a person’s transformation and accomplishments since they committed it. The deeper reason for the rejection of discretionary parole requests is simple: fear. Politicians and parole board members are terrified that a parolee will commit a new crime that attracts negative media attention.
But this fear-driven thinking is irrational, counterproductive and inhumane. It bears no connection to solid research on how criminals usually “age out” of crime, especially if they have had educational and vocational opportunities while incarcerated.  It permanently excludes people who would be eager to contribute to society as law-abiding citizens, while taxpayers spend over $30,000 a year to house each prisoner.  And it deprives hundreds of thousands of people of a meaningful chance to earn their freedom.
But are prisoners who have served long sentences for violent crimes genuinely capable of reforming and not reoffending?  The evidence says yes.  In fact, only about 1 percent of people convicted of homicide are arrested for homicide again after their release. Moreover, a recent “natural experiment” in Maryland is very telling.  In 2012, the state’s highest court decided that Maryland juries in the 1970s had been given faulty instructions. Some defendants were retried, but many others accepted plea bargains for time served and were released.  As a result, about 150 people who had been deemed the “worst of the worst” have been let out of prison — and none has committed a new crime or even violated parole....
Until recently the political situation was favorable to bipartisan criminal justice reform.  But the election of a self-described “law and order candidate,” the doubling of the stock prices of private-prison companies and the return of the discredited war on drugs gives an indication of the direction of the current administration.
But whenever a real discussion about reform does come, policy makers should look beyond the boundaries of the United States.  To be clear, I am not suggesting that all long-term prisoners should be released nor that the perspectives of crime victims should be ignored.  Serious crimes warrant long sentences.  But other democracies provide better models for running criminal justice and prison systems.  Perhaps we could learn from them and acquire a new mind-set — one that treats prisons as sites to temporarily separate people from society while creating opportunities for personal growth, renewal and eventual re-entry of those who are ready for it.

August 8, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (4)

Horrible abuse and female defendant's demeanor lead Arizona jury to send child murderer to death row

Because so relatively few women are sent to death row, it is always noteworthy when a female defendant is sentenced to death.  And I found this local article from Arizona, headlined "Jurors: Sammantha Allen lacked remorse," a particularly notable account of what prompted an Arizona jury to vote to send a woman to death row yesterday for her role in the killing of a child.  Here are details:

Sammantha Allen dropped her head and burst into tears moments after jurors announced their verdict in the penalty phase of the woman's trial: death. "She didn't care what happened to this child," said Amanda Keagh, a juror in the trial. "It was all about what was going to happen to her."

This marks the end of one more chapter in the horrific 2011 murder of 10-year-old Ame Deal, whose lifeless body was found locked inside a plastic footlocker left out in the blazing Arizona heat. Police said the girl was forced into the box as punishment for stealing a popsicle. Allen, along with her husband John, were charged in the girl's murder. The woman was convicted of first-degree murder on June 26 and arguments over whether she would be sentenced to death lasted several weeks.

Jurors outside the courtroom said they maintained an open mind throughout the penalty phase of the trial, but ultimately pointed to Allen's demeanor inside the courtroom as a major factor in their decision. "So I think that was a pivotal moment for me," Keagh said. "I was waiting for something from her. That was her chance to plead for her life and it just fell short."

The defense team argued Allen's actions were a result of a dysfunctional childhood and family life that was heavily influenced by Allen's mother and grandmother. Her attorney argued the control continued into Allen's adulthood including how she treated Ame.

"We just felt at some point she was not as passive of a person as we previously thought," said Chuck Pritchett, another juror....

The jurors said the entire process was difficult, explaining some of the details and testimony will stay with them forever. "The hardest thing for all of us was the victim (Ame) and learning about what her life really entailed," said Ann Opseth, a juror. "The years of abuse that she suffered."

This additional local article about the case provides more details about the crime and context for the sentencing. As is often true for all sorts of sentencings, both capital and non-capital, the defendant's character and history may have mattered even more than her crime.

August 8, 2017 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

August 7, 2017

Effective reminder of plea realities and over-criminalization in modern US criminal justice systems

Emily Yoffe has this lengthy new Atlantic article that effectively reviews what most modern criminal justice practitioners know well about the criminal justice system: plea practices are the heart of criminal case processing. The piece is headlined "Innocence Is Irrelevant: This is the age of the plea bargain—and millions of Americans are suffering the consequences." I recommend the piece in full, and here are excerpts:

This is the age of the plea bargain. Most people adjudicated in the criminal-justice system today waive the right to a trial and the host of protections that go along with one, including the right to appeal. Instead, they plead guilty. The vast majority of felony convictions are now the result of plea bargains—some 94 percent at the state level, and some 97 percent at the federal level. Estimates for misdemeanor convictions run even higher. These are astonishing statistics, and they reveal a stark new truth about the American criminal-justice system: Very few cases go to trial. Supreme Court Justice Anthony Kennedy acknowledged this reality in 2012, writing for the majority in Missouri v. Frye, a case that helped establish the right to competent counsel for defendants who are offered a plea bargain. Quoting a law-review article, Kennedy wrote, “ ‘Horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’ ”...

Because of plea bargains, the system can quickly handle the criminal cases of millions of Americans each year, involving everything from petty violations to violent crimes. But plea bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t present a danger to society, or whose “crime” may primarily be a matter of suffering from poverty, mental illness, or addiction. And plea bargains are intrinsically tied up with race, of course, especially in our era of mass incarceration.

As prosecutors have accumulated power in recent decades, judges and public defenders have lost it. To induce defendants to plead, prosecutors often threaten “the trial penalty”: They make it known that defendants will face more-serious charges and harsher sentences if they take their case to court and are convicted. About 80 percent of defendants are eligible for court-appointed attorneys, including overworked public defenders who don’t have the time or resources to even consider bringing more than a tiny fraction of these cases to trial. The result, one frustrated Missouri public defender complained a decade ago, is a style of defense that is nothing more than “meet ’em and greet ’em and plead ’em.”...

Thanks in part to plea bargains, millions of Americans have a criminal record; in 2011, the National Employment Law Project estimated that figure at 65 million. It is a mark that can carry lifetime consequences for education, employment, and housing. Having a record, even for a violation that is trivial or specious, means a person can face tougher charges and punishment if he or she again encounters the criminal-justice system. Plea bargaining has become so coercive that many innocent people feel they have no option but to plead guilty. “Our system makes it a rational choice to plead guilty to something you didn’t do,” Maddy deLone, the executive director of the Innocence Project, told me....

“No one sets out to create bloated criminal codes,” I was told by David Carroll, the executive director of the Sixth Amendment Center, which protects the right to counsel. “But once they exist, vast resources are spent to justify them.” In response to the crime wave, the United States significantly expanded police forces to catch criminals, prosecutor’s offices to charge them, and the correctional system to incarcerate them. Legislators have added so many acts to criminal codes that in 2013, Neil Gorsuch—now on the Supreme Court, but then an appellate judge—publicly raised concerns. In a speech sponsored by the Federalist Society, he asked, “What happens to individual freedom and equality—and to our very conception of law itself—when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”...

No amount of tinkering, however, will matter much unless Americans stop trying to use the criminal-justice system as a tool for managing social ills. “Why are these cases being pumped into the system in the first place?,” [Professor Stephanos] Bibas said to me. He’s not alone in asking. Across the country, in red states and blue states, reformist state and district attorneys have recently been elected on platforms of rolling back harsh sentencing, reducing the enforcement of marijuana laws, and knocking down crimes from felonies to misdemeanors. And change is happening. Last year, for example, the New York City Council passed legislation that made offenses such as public drinking and urination civil rather than criminal violations, and thus subject largely to tickets and fines.

Paring back our criminal code and eliminating many mandatory minimum sentences will be crucial to reform. In the long-running War on Drugs, the government has regularly prosecuted people for possessing small amounts of illegal substances, or for merely possessing drug paraphernalia. Often, on the basis of no evidence beyond a police officer’s assertion, officials have charged and prosecuted defendants for the more serious crime of “intent to sell.” But during Prohibition, when the manufacture, transport, and sale of alcohol were federal crimes, Americans were not arrested by the millions and incarcerated for drinking. And they certainly didn’t plead guilty to possessing martini glasses and other drinking paraphernalia....

The United States is experiencing a criminal-justice crisis, just not the one the Trump administration talks about. By accepting the criminalization of everything, the bloat of the criminal-justice system, and the rise of the plea bargain, the country has guaranteed that millions of citizens will not have a fair shot at leading ordinary lives.

August 7, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

August 6, 2017

Guest post: "It’s Time to End Life without Parole for Children in the United States"

Guest-postI recently received a kind request to publish here a commentary authored by Rob Smith and Heather Renwick.  Rob is the Executive Director of the Fair Punishment Project at Harvard Law School, and Heather is Legal Director at the Campaign for the Fair Sentencing of Youth in Washington DC.  Here is what they have to say:

Sweeping reform over the past five years has brought the United States to a critical tipping point in the movement to end the arbitrary and cruel practice of sentencing kids to life in prison without parole. The Associated Press just reported that the number of youth serving life without parole around the country has dramatically fallen in the past five years due to legislative reforms and judicial opinions that recognize sentencing kids to life in prison is unnecessarily harsh and unconstitutional in most, if not all, cases.

In 2012, only five states banned life without parole sentences for juveniles. Today, just five years later, the number of states that ban life sentences for children has nearly quadrupled, bringing the total to nineteen states and District of Columbia. Another four states do not sentence children to life in prison, despite the fact that penalty is technically available.

The states that ban or no longer use life without parole for children reflect geographical, political, and ideological diversity. For example, West Virginia enacted the most progressive law in the country in 2014, and Nevada’s Republican-majority legislature unanimously passed a law that provides parole eligibility for all children sentenced in adult court.

Even Pennsylvania, the historical epicenter of juvenile life without parole in the United States, is moving unequivocally away from the practice. In the past year, over 100 individuals sentenced as children to life without parole in Pennsylvania have been resentenced, more than 60 of whom have returned home so far.

When the U.S. Supreme Court abolished the juvenile death penalty in 2005 in a case called Roper v. Simmons, it looked to the number of states that legislatively or functionally abandoned the juvenile death penalty as evidence of national consensus. The rapid movement away from life without parole sentences for youth has far surpassed the pace of reform that preceded Roper

Yet a handful of states remain outliers in their treatment of young people convicted of serious crimes.  Virginia has flouted U.S. Supreme Court opinions limiting the imposition of life sentences on children, and in Michigan, children continue to be sentenced to life without parole at a rate that far outstrips the rest of the country. So whether a child is sentenced to life without parole is entirely dependent on the state in which he or she is sentenced.

Last year in a case called Montgomery v. Louisiana — a clarification of its 2012 opinion Miller v. Alabama — the U.S. Supreme Court said that a sentence of life without parole should not be imposed on a child in most, if not all, cases. The Supreme Court rooted these decisions in the understanding that even children who commit serious crimes are capable of positive growth and change.

Yet as the AP just reported, inconsistent implementation of these U.S. Supreme Court decisions means that “[t]he odds of release or continued imprisonment vary from state to state, even county to county, in a pattern that can make justice seem arbitrary.” And our nation’s kids deserve more than arbitrary justice.  It’s time for the U.S. Supreme Court to recognize what a rapidly growing number of states already have: that no child should be sentenced to life in prison without parole. 

August 6, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics | Permalink | Comments (7)

You be the federal judge: what sentence for "Pharma Bro" after his fraud convictions?

As regular readers know, I enjoy following up news of a high-profile conviction by asking what sentence readers think fitting for the high-profile convicted offender.  As detailed in this MSNBC report, headlined "'Pharma bro' Martin Shkreli found guilty of 3 of 8 charges, including securities fraud," the high-profile offender this time around is a notorious pharmaceutical executive. Here are the basics about his crime:

A federal jury Friday found notorious "Pharma bro" Martin Shkreli guilty of three counts of securities fraud — but acquitted him of five other criminal counts related to hedge funds investors and a drug company he founded. The split verdict in Shkreli's trial came at about 2:37 p.m. on the fifth day of jury deliberations, after a more-than-month-long trial in Brooklyn, New York, federal court.

At that trial, prosecutors claimed Shkreli had defrauded multiple investors in his two hedge funds out of millions of dollars, only to repay them with stock and cash that he looted from a the biotech company he created, Retrophin. While the seven-woman, five-man jury clearly accepted some of the prosecution's evidence, it rejected other parts of their argument.

The mixed decision perplexed many in the courtroom, including the 34-year-old Shkreli, who first drew widespread public scorn in 2015 for raising the price of a lifesaving drug by more than 5,000 percent. He looked over quizzically at one of this lawyers, Marc Agnifilo, each of the three times that Judge Kiyo Matsumoto interrupted a set of "not guilty" announcements she was reading off of the jury's verdict sheet with a "guilty" one.

A juror who was quoted anonymously by the New York Times, said "In some of the counts at least we couldn't find that he intentionally stole from them and the reasoning was to hurt them."...

Shkreli, who remains free on $5 million bail, faces a maximum sentence of 20 years in prison. But he is sure to receive a far-less-severe punishment than that, given his lack of a criminal record, and other factors.

"I think we are delighted in many ways," said Shkreli said outside of the courthouse. "This was a witch hunt of epic proportions and maybe they found one or two broomsticks but at the end of the day we've been acquitted of the most important charges in this case." He almost immediately afterward used his new Twitter account, @samthemanTP, to comment on the outcome of the case, and also started a livestream on YouTube from his apartment.

Shkreli's lead lawyer, Benjamin Brafman, told a group of journalists, "I hope tomorrow's reports inform the public that Martin Shkreli went to trial and despite being Martin Shkreli he won more than he lost."

But acting United States Attorney Bridget Rohde, whose office prosecuted Shkreli, said, "We're gratified as we stand here today at the jury's verdict."

"Justice has been served," said Rohde, whose prosecution team next plans to try Shkreli's co-defendant and former business lawyer Evan Greebel this fall.

Brafman said the amount of money Shkreli could be made to surrender would have been much higher if he had been found guilty of ripping off Retrophin, to repay swindled hedge-fund investors. But Shkreli was acquitted of that charge, conspiracy to commit wire fraud, which Brafman referred to as "the money count."

Brafman said that because the jury found that any loss suffered by Retrophin was either low, or non-existent, as the defense claims, the sentence recommended for Shkreli will be light. "I think we would love to have a complete sweep but five out of eight counts, not guilty, is in our view a very good verdict especially since count seven, the main count that impacts on the loss in this case, that was the most important count in the case from our perspective," Brafman said. "And for Martin to be found not guilty of that count is a very, very good result as far as we are concerned," Brafman said....

The charges against Shkreli were unrelated to his decision, while CEO of Turing Pharmaceuticals, to raise the price of the drug Daraprim from $13.50 per pill to $750 per pill in 2015. The price increase came as he was being investigated for the case that led to his trial.

Prosecutors said a mountain of testimony and evidence at that trial showed that Shkreli duped multiple investors into putting millions of dollars into two hedge funds he ran, MSMB Capital and MSMB Healthcare, by falsely claiming to have an excellent record of running such funds, and by falsely stating his investment strategy had a low level of risk.

After getting their money, prosecutor said, Shkreli quickly lost much of it, and also used some of it to capitalize his infant company Retrophin even as he continued sending out financial statements to investors claiming positive returns. And when investors asked for their money to be redeemed to them in cash, Shkreli brushed them off for months or more, inventing excuses and suggesting alternative ways to pay them back, according to the prosecution's case.

Two of the securities fraud counts for which Shkreli was convicted related to those hedge funds. Prosecutors said that he then improperly used Retrophin stock and cash from the young firm to pay off the the funds' investors. While Shkreli was acquitted of on Retrophin-related count, he was convicted of conspiracy to commit securities fraud in connection with Retrophin.

This Reuters article, headlined "Shkreli sentence turns on antics, investor impact of crime," highlights that this case may be the relatively rare white-collar case in which the calculated guideline range is rather low but personal factors may prompt a judge to want to sentence above the range:

Benjamin Brafman, Shkreli's lawyer, said because the hedge fund investors ultimately profited, his client's sentencing range should be zero to six months, which allows for probation in lieu of prison.

Brafman in an email on Saturday acknowledged Shkreli's social media habits are "not helpful" and hoped the court would focus on the facts of the case and the law. "My hope is that the court will ignore the childish and compulsive tweeting of Mr. Shkreli that‎ is his right to do," Brafman said.

Shkreli could benefit from steps he took to repay investors before he caught the attention of authorities. "As long as the investors were paid back before he knew there was a criminal investigation that is subtracted from any loss figure," said Sarah Walters, a lawyer at the law firm McDermott Will & Emery.

Prosecutors are expected to argue the intended losses of the fraud were much higher, noting the millions of dollars that investors lost before they were repaid, according to the law enforcement source, who requested anonymity to discuss the case. That could allow for a lengthier sentence, as under federal sentencing guidelines, judges are to consider the actual or intended loss, whichever is higher.

Legal experts also said prosecutors could argue for a lengthier sentence by asking U.S. District Judge Kiyo Matsumoto to factor in the conduct involving Retrophin despite the acquittals. While juries must find wrongdoing under the high standard of proof beyond a reasonable doubt, judges at sentencing may consider facts proven by the lower standard of preponderance of the evidence.

The guidelines are advisory only, and Matsumoto can factor in other issues, including Shkreli's trash-talking habits. "In this case, I imagine they will focus more on that he is a liar, he disparages people, he is a disruptive force and he has a complete lack of remorse," said John Zach, a lawyer at Boies, Schiller & Flexner.

August 6, 2017 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6)