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December 9, 2017

"Make or Buy? The Provision of Indigent Defense Services in the U.S"

I blogged here in August 2016 about an interesting draft paper authored by Yotam Shem-Tov then titled "Public Defenders vs. Private Court Appointed Attorneys: An Investigation of Indigent Defense Systems."  The draft sought to empirically examine different outcomes for defendants assigned different types of counsel.  The authored of that draft emailed me today to report that the paper is now "much more complete" compared to the prior noted draft.  The revised paper, available here via SSRN, is now going by the title that is the title of this post, and here is the new abstract:

U.S. courts provide constitutionally mandated legal services to indigent defendants via private court-appointed attorneys and public defenders' organizations.  I investigate the relative efficacy of these two modes of indigent defense by comparing outcomes of co-defendants assigned either a public defender or a private court-appointed attorney within the same case. Using data from San Francisco and federal district courts, I argue and show empirically that in multiple defendant cases public defender assignment is as good as random. Estimates show that public defenders reduce the probability of any prison sentence by 22%, as well as the length of prison by 10%.

Interestingly, as noted in a prior post, the early draft's abstract indicated a finding that "defendants assigned a public defender in co-defendant cases had slightly worse outcomes."  But then, as blogged here in January 2017, the author can to the inverse conclusion after checking his data and receiving feedback about his draft analysis.  And now it seems that, after finalizing the numbers, the author has seemingly concluded once-and-for-all that his data show that public defendants generally producing better outcomes than private court-appointed attorneys.

Prior related posts:

December 9, 2017 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

Notable new push to push for expanded use of compassionate release programs

As reported in this press release from Families Against Mandatory Minimums, "a coalition of criminal justice reform, health policy, human rights, and faith-based organizations launched a new public education and advocacy campaign to urge the creation, expansion, and robust use of federal and state programs that grant early release to prisoners with compelling circumstances, such as a terminal or age-related illness."  Here is more from the release (with links from the source):

The Campaign for Compassionate Release” comprises a diverse group of organizations, including Families Against Mandatory Minimums (FAMM), American Conservative Union Foundation, Human Rights Watch, National Council of Churches, Law Enforcement Action Partnership, and National Disability Rights Network.  “It is cruel and senseless to prisoners and families alike to abandon an individual to suffer or die alone in prison, separated from loved ones. These prisoners are the least dangerous and most expensive to lock up, yet compassionate release often exists in name only. It often fails the people it is intended to help. And we’re fed up,” said Mary Price, general counsel of FAMM.

To kick off the Campaign, 36 organizations and individuals endorsed a statement of principles. The principles focus on the humanitarian, public safety, and economic benefits of granting early release to elderly prisoners, those with disabilities, or prisoners facing extreme family changes. While the Campaign will target both federal and state policies, the first stages of the launch focus on reforms to the federal compassionate release program.

The federal compassionate release program, created by Congress, has existed for decades but is rarely used.  The Bureau of Prisons (BOP) must decide if prisoners meet program criteria and then seek their release in the courts, but in reality, the BOP only brings a trickle of release motions to the courts annually. Delays also plague the program; prisoners commonly die awaiting a decision.  Congressional appropriators, government watchdogs, the U.S. Sentencing Commission, and outside advocates all have questioned the BOP’s failure to use the program as Congress intended, especially since sick, dying, and elderly prisoners are the least likely to re-offend and the most expensive to house.

Today, many Campaign members and others sent a letter to BOP Director Mark Inch, urging him to expand the program’s use. The letter echoes a similar letter signed by a bipartisan group of senators in August.

December 9, 2017 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

"Portugal’s radical drugs policy is working. Why hasn’t the world copied it?"

1960The title of this post is the title of this lengthy recent Guardian article taking an in-depth look at how Portugal achieved and operationalizes its distinctive approach to drug use and abuse.  The extended article takes a deep dive into a lot of particular, but here are excerpts from the more general discussion:

In 2001, ... Portugal became the first country to decriminalise the possession and consumption of all illicit substances.  Rather than being arrested, those caught with a personal supply might be given a warning, a small fine, or told to appear before a local commission — a doctor, a lawyer and a social worker — about treatment, harm reduction, and the support services that were available to them.

The opioid crisis soon stabilised, and the ensuing years saw dramatic drops in problematic drug use, HIV and hepatitis infection rates, overdose deaths, drug-related crime and incarceration rates.  HIV infection plummeted from an all-time high in 2000 of 104.2 new cases per million to 4.2 cases per million in 2015.  The data behind these changes has been studied and cited as evidence by harm-reduction movements around the globe.  It’s misleading, however, to credit these positive results entirely to a change in law.

Portugal’s remarkable recovery, and the fact that it has held steady through several changes in government — including conservative leaders who would have preferred to return to the US-style war on drugs — could not have happened without an enormous cultural shift, and a change in how the country viewed drugs, addiction — and itself.  In many ways, the law was merely a reflection of transformations that were already happening in clinics, in pharmacies and around kitchen tables across the country.  The official policy of decriminalisation made it far easier for a broad range of services (health, psychiatry, employment, housing etc) that had been struggling to pool their resources and expertise, to work together more effectively to serve their communities....

In spite of Portugal’s tangible results, other countries have been reluctant to follow.  The Portuguese began seriously considering decriminalisation in 1998, immediately following the first UN General Assembly Special Session on the Global Drug Problem (UNgass).  High-level UNgass meetings are convened every 10 years to set drug policy for all member states, addressing trends in addiction, infection, money laundering, trafficking and cartel violence.  At the first session — for which the slogan was “A drug-free world: we can do it” — Latin American member states pressed for a radical rethinking of the war on drugs, but every effort to examine alternative models (such as decriminalisation) was blocked. By the time of the next session, in 2008, worldwide drug use and violence related to the drug trade had vastly increased.  An extraordinary session was held last year, but it was largely a disappointment — the outcome document didn’t mention “harm reduction” once.

Despite that letdown, 2016 produced a number of promising other developments: Chile and Australia opened their first medical cannabis clubs; following the lead of several others, four more US states introduced medical cannabis, and four more legalised recreational cannabis; Denmark opened the world’s largest drug consumption facility, and France opened its first; South Africa proposed legalising medical cannabis; Canada outlined a plan to legalise recreational cannabis nationally and to open more supervised injection sites; and Ghana announced it would decriminalise all personal drug use.

The biggest change in global attitudes and policy has been the momentum behind cannabis legalisation.  Local activists have pressed Goulão to take a stance on regulating cannabis and legalising its sale in Portugal; for years, he has responded that the time wasn’t right.  Legalising a single substance would call into question the foundation of Portugal’s drug and harm-reduction philosophy.  If the drugs aren’t the problem, if the problem is the relationship with drugs, if there’s no such thing as a hard or a soft drug, and if all illicit substances are to be treated equally, he argued, then shouldn’t all drugs be legalised and regulated?

Massive international cultural shifts in thinking about drugs and addiction are needed to make way for decriminalisation and legalisation globally.  In the US, the White House has remained reluctant to address what drug policy reform advocates have termed an “addiction to punishment”.  But if conservative, isolationist, Catholic Portugal could transform into a country where same-sex marriage and abortion are legal, and where drug use is decriminalised, a broader shift in attitudes seems possible elsewhere.  But, as the harm-reduction adage goes: one has to want the change in order to make it.

December 9, 2017 in Drug Offense Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (4)

December 8, 2017

SCOTUS grants cert on two(!) federal sentence reduction issues

The Supreme Court this afternoon issued his new order list which adds seven new cases to its merits docket. Two of the new cases involve (narrow) related federal sentencing issues concerning the application of 18 USC § 3582(c)(2).  Here are the case pages and issues via SCOTUSblog:

Hughes v. United States

Issue: Whether, under Freeman v. United States, a petitioner is eligible for a sentence reduction pursuant to 18 U.S.C. 3582(c)(2) based on a retroactive amendment to the Sentencing Guidelines, when the petitioner was sentenced after entering into a binding Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement that required a specific sentence not expressly tied to the guidelines.

Koons v. United States

Issues: Whether a defendant who is subject to a statutory mandatory minimum sentence, but who substantially assisted the government and received a sentence below the mandatory minimum pursuant to 18 U.S.C. § 3553(e), is eligible for a further sentence reduction under 18 U.S.C. § 3582(c)(2), when the Sentencing Commission retroactively lowers the advisory sentencing guidelines range that would have applied in the absence of the statutory mandatory minimum.

As long-time readers should know, I am not a big fan of undue finality concerns in the sentencing context (see paper here), so my first instinct is to root for SCOTUS to take an expansive view of the reach and application of 18 U.S.C. § 3582(c)(2). But I will need to dig into the particulars of these cases before being ready to make any predictions about where the Justices may want to go with them.  But, as long-time readers should also know, a cert grant on TWO sentencing cases makes me a happy camper no matter what may follow.

December 8, 2017 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Child molester/gymnastics coach Larry Nassar gets maxed-out, 60-year federal prison sentence for child porn offenses

The typical defendants sentenced in federal court for child porn offense have not been convicted of contact offenses and have strong arguments for being sentenced below the severe federal sentencing guideline ranges.  But former USA Gymnastics doctor Larry Nassar is not your typical federal child porn offender and, as reported here, he did not convince a judge he should get a below guideline sentence. Indeed, he got the maxed out in every possible way at his sentencing in federal court yesterday:

Larry Nassar, the 54-year-old former MSU and USA Gymnastics doctor whose work took him to multiple Olympic Games, received an effective life sentence when a federal judge on Thursday sentenced him to 60 years in federal prison on child pornography charges.

"He has demonstrated that he should never again have access to children," U.S. District Judge Janet Neff said as she imposed a sentence that went beyond guidelines calling for 22 to 27 years in prison. He was sentenced to 20 years on each of three counts to which he's admitted. The sentences are to be served consecutively.

Neff also ordered that his federal time would be served consecutively to state sentences for sexual assault to which he's also admitted. He will be sentenced next month on those charges.The courtroom was filled to capacity. Among those in attendance were several victims of Nassar's admitted sexual assault, their relatives and their attorneys. Several victims said after the sentencing they were still trying to process their feelings, but it was a step toward justice.

“I was blown away with what the judge did today, and I thought it was very fitting," Larissa Boyce, who first raised concerns about Nassar to an MSU coach in 1997, said at a news conference after the hearing. "I can’t thank her enough for the things that she said."

In court filings last week, Nassar's attorneys asked Neff to show leniency, saying the doctor had worked toward redemption by helping fellow inmates and taking Bible classes since his arrest nearly a year ago. Nassar, speaking in a barely audible voice from the courtroom podium on Thursday, told Neff he’d long battled an addiction he likened to alcoholism or drug addiction. His shame kept him from asking for help, he said. He said he hoped his crimes would educate people about the problem to prevent others from being hurt in the future....

But Neff said Nassar’s crimes hurt so many people on so many levels. That includes the unnamed children in the pictures who feel assaulted every day knowing someone somewhere could be viewing their bodies, she said. It includes the women Nassar assaulted who now struggle to trust doctors and struggle with their own sense of self-worth.

The judge said she'd sentenced defendants in child pornography cases for a decade but Nassar was "unique" in the sheer volume of pornography he'd collected and the brazen way he assaulted women during medical appointments with parents in the room. "You have to wonder whether he felt he was omnipotent, whether he felt he was getting away with something so cleverly," Neff said as several victims and family members in the room started to cry. "I am a mom of two daughters. I cannot imagine that kind of situation."

Federal prosecutors had argued for the maximum 60 years, saying Nassar "poses an immense risk to the community" and quoting one victim who said he "will not hesitate to reoffend" if he's ever freed. Neff agreed.

Nassar pleaded guilty in July to three federal charges after investigators said he possessed at least 37,000 graphic videos and images of child pornography, including images of prepubescent children engaged in sex acts. He also pleaded guilty to obstruction of justice for trying to destroy the evidence. The U.S. Attorney's Office said Nassar paid to have his work laptop wiped clean and threw away hard drives containing the pornography. Investigators were only able to obtain those hard drives at Nassar's Holt property because the garbage truck happened to be running late that day, according to court records.

Some of the videos appeared to show Nassar assaulting young girls in a pool, investigators said. As part of a deal with federal prosecutors to obtain his guilty plea, prosecutors agreed they would not charge him with alleged sexual exploitation of children in relation to four reported victims. Thursday's sentencing ends one of three criminal cases against Nassar. He's also pleaded guilty to sexual assault charges in both Ingham and Eaton counties and could get to up to life in prison in those cases when he's sentenced next month.

Prior related post:

December 8, 2017 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

"Invisible Punishment is Wrong – But Why? The Normative Basis of Criticism of Collateral Consequences of Criminal Conviction"

The title of this post is the title of this new piece now on SSRN authored by Christopher Bennett. Here is its abstract:

This article is concerned with the way in which criminal justice systems cause harms that go well beyond the ‘headline’ punishment announced at sentencing.  This is the phenomenon of ‘collateral consequences of criminal conviction’.  This phenomenon has been widely criticised in recent criminological literature.  However, the critics do not normally explore or defend the normative basis of their claims — as they need to if their arguments are to strike home against sceptics.

I argue that the normative basis of the critics’ position should be seen as involving important normative claims about the responsibilities that societies have towards those who break the law.  Some important strands of criticism, I claim, rest on the view that we have associative duties towards offenders (and their dependants and communities) as fellow participants in a collective democratic enterprise, duties that are violated when states impose, or allow, harms that go significantly beyond the sentence.

December 8, 2017 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (5)

December 7, 2017

Latest data from National Crime Victimization Survey adds a bit of uncertainty to 2016 crime story

As explained in this press release, the Justice Department's Bureau of Justice Statistics today released estimates of crime from the 2016 National Crime Victimization Survey (NCVS). These passages from the release provide the basic numbers and then explains  why it is difficult to use the 2016 NCVS data to compare to previous data:

In 2016, U.S. residents age 12 or older experienced 5.7 million violent victimizations, including rape or sexual assault, robbery, and aggravated and simple assault.  This was a rate of 21.1 violent victimizations per 1,000 persons.  An estimated 1.3 percent of U.S. residents experienced one or more violent victimizations in 2016....

These estimates of crime are presented in BJS's annual report on criminal victimization, which focused primarily on the level and nature of violent and property crimes in 2016.  The ability to compare 2016 estimates of crime to 2015 or other years was limited due to a redesign of the NCVS sample.  In 2016, BJS introduced new areas to the NCVS sample to reflect population changes based on the 2010 Decennial Census and to produce state- and local-level victimization estimates, which will be released in early 2018.  Among sampled areas that did not change, there was no measurable difference in rates of violent or property crime from 2015 to 2016.

For a better understanding of what this latest data tells us and does not tell us, here are some thoughtful short commentaries emerging in the wake of this new data:

From FiveThirtyEight here, "Why We Can’t Be Sure If Violent Crime Is On The Rise"

From Vox here, "Federal report: violent crime rose in 2016. Other federal report: eh, maybe not."

From Wonkblog here, "We were told violent crime rose in 2016. That may not be true."

December 7, 2017 in National and State Crime Data | Permalink | Comments (1)

Judge "convicts" Michael Slager of murdering Walter Scott and gives him 20 years in federal prison

As noted in this prior post, in federal court there was this week a homicide mini-trial as part of the sentencing of former South Carolina police officer Michael Slager pleaded guilty to a federal civil rights offense as a result of his lethal shooting of Walter Scott.  This lengthy local article, headlined "Former officer Michael Slager sentenced to 20 years in prison for shooting of Walter Scott, reports on the results of the judicial inquisition and ultimate sentencing decision.  Here are a few particulars:

Two and a half years after millions saw a cellphone video of Michael Slager gunning down Walter Scott, the 20-year prison sentence he was handed Thursday will be etched into history as one of the most significant for an American police officer involved in a fatal shooting.

Findings by a federal judge aligned with accusations that observers nationwide had aired against the former North Charleston officer since the footage emerged in April 2015: He committed murder when he shot at Scott eight times as the black motorist ran away. He also later misled investigators and lied during court testimony, the judge determined.

The judge rejected the 36-year-old's claim that Scott's own actions at least initially warranted the gunfire. The decision ended a courtroom battle that has played out since scrutiny befell North Charleston amid a national conversation about police killings. But Slager's penalty on a federal charge of violating Scott’s civil rights may extend that legal fight through appeals. It was more than twice what Slager’s defense team had hoped for, and it came as a surprise to many on both sides of the dispute....

U.S. District Judge David Norton had acknowledged two families who cried in his downtown Charleston courtroom and described how their lives had been torn apart by the shooting. Neither, he said, would be satisfied with Slager’s punishment.  "Judging by (Slager’s) history and characteristics, he has lived a spotless life," he said. "Regardless, this is a tragedy that shouldn’t have happened."...

Slager pleaded guilty in May to the federal civil rights violation for using excessive force. But it was the judge’s responsibility to decide the underlying offense: second-degree murder or voluntary manslaughter.

Norton largely dismissed Slager’s manslaughter argument that the officer had been provoked by Scott’s resistance, calling the motorist’s actions “wrongful” but not deserving of Slager’s reaction. Instead, the officer acted with malice by repeatedly shooting the unarmed and fleeing Scott, the judge said.

In reaching the murder finding, Norton rejected a pre-sentencing report’s recommendation that Slager should serve between 10 and 13 years behind bars.  The judge reduced the penalty from the maximum lifetime term for reasons that had little to do with the shooting: for the way federal and state prosecutors collaborated on his prosecution and the risk of abuse Slager will face in prison because he’s a former police officer.

The sentencing relied on several legal determinations based on Norton’s view of the facts, and in delivering the penalty, he mentioned that he had consulted his wife, a forensic pathologist, in reviewing Scott’s autopsy. Defense attorneys took exception to those comments and the result, but the judge said their complaints would have to be addressed by an appeals court.

Slager will likely get credit for the more than yearlong stint he has already spent in jail. In the federal justice system, there is no parole.

Prior related posts:

December 7, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

"The Effects of Aging on Recidivism Among Federal Offenders"

The title of this post is the title of this notable new report released today by the US Sentencing Commission. Here is how the USSC describes the report and its highlights on this webpage:

The Effects of Aging on Recidivism Among Federal Offenders is the fourth report in a series examining a group of 25,431 federal offenders who were released from prison or placed on probation in calendar year 2005. This report analyzes the impact of the aging process on federal offender recidivism and, once age is accounted for, the impact of other offense and offender characteristics. The findings included in this report build on those in the Commission’s 2016 Recidivism Overview report. (Published December 7, 2017)...

Report Highlights

Older offenders were substantially less likely than younger offenders to recidivate following release.  Over an eight-year follow-up period, 13.4 percent of offenders age 65 or older at the time of release were rearrested compared to 67.6 percent of offenders younger than age 21 at the time of release.  The pattern was consistent across age groupings, and recidivism measured by rearrest, reconviction, and reincarceration declined as age increased.

For federal offenders under age 30 at the time of release, over one-fourth (26.6%) who recidivated had assault as their most common new charge.  By comparison, for offenders 60 years old or older at the time of release, almost one quarter (23.7%) who recidivated had a public order offense6 as their most serious new charge.

Age and criminal history exerted a strong influence on recidivism.  For offenders in Criminal History Category I, the rearrest rate ranged from 53.0 percent for offenders younger than age 30 at the time of release to 11.3 percent for offenders age 60 or older.  For offenders in Criminal History Category VI, the rearrest rate ranged from 89.7 percent for offenders younger than age 30 at the time of release to 37.7 percent for offenders age 60 or older.

Education level influenced recidivism across almost all categories.  For example, among offenders under age 30 at the time of release, college graduates had a substantially lower rearrest rate (27.0%) than offenders who did not complete high school (74.4%).  Similarly, among offenders age 60 or older at the time of release, college graduates had a somewhat lower rearrest rate (11.6%) than offenders who did not complete high school (17.2%).

Age exerted a strong influence on recidivism across all sentence length categories.  Older offenders were less likely to recidivate after release than younger offenders who had served similar sentences, regardless of the length of sentence imposed.  In addition, for younger offenders there was some association between the length of the original federal sentence and the rearrest rates, as younger offenders with sentences of up to six months generally had lower rearrest rates than younger offenders with longer sentences. However, among all offenders sentenced to one year or more of imprisonment, there was no clear association between the length of sentence and the rearrest rate.

For certain major offense types, the type of federal offense that offenders had committed also had an effect on recidivism across age groups.  For example, firearms offenders had a substantially higher rearrest rate across all age categories than drug trafficking offenders, who in turn had a higher rearrest rate across all age categories than fraud offenders.  For example, for offenders under age 30 at the time of release, the rearrest rates were 79.3 percent (firearms), 62.5 percent (drug trafficking), and 53.6 percent (fraud).  Similarly, for offenders age 60 and older at the time of release, the rearrest rates were 30.2 percent (firearms), 17.5 percent (drug trafficking), and 12.5 percent (fraud).

At every age group, federal prisoners had a substantially lower recidivism rate than state prisoners who also were released in 2005 and tracked by the Bureau of Justice Statistics.  For example, for offenders age 24 or younger at the time of release, 63.2 percent of federal prisoners were rearrested within five years compared to over four-fifths (84.1%) of state prisoners.  Like federal prisoners, older state prisoners were less likely to recidivate than younger state prisoners.

December 7, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Reentry and community supervision | Permalink | Comments (2)

December 6, 2017

Notable state and federal developments in the Garcia Zarate/Kate Steinle case

Last week, I blogged here about the California state court verdict in a high-profile homicide case, asking in the title of my post "Can, should and will AG Sessions seek a federal prosecution of Garcia Zarate after 'disgraceful verdict in the Kate Steinle case'?."  As noted below, we already have an answer to this question, though there is also state prosecution news we should cover first.

Specifically, as reported here, the "attorneys who won acquittal for a homeless undocumented immigrant on murder, manslaughter and assault charges in the shooting of Kate Steinle on a San Francisco Bay pier will seek to have the sole conviction in the case dismissed as well." Here is more:

A jury last week found Jose Ines Garcia Zarate, 45, guilty of a lesser count of being a felon in possession of a gun in connection with Steinle’s death on Pier 14 in July 2015, after the defense argued at trial that the shooting was an accident that happened after the defendant found a stolen gun wrapped in a T-shirt or cloth under a bench.

Now the defense says the conviction is inconsistent with the jury’s larger acquittal. If the panel believed Steinle may have been killed by an accidental discharge, lawyers assert, Garcia Zarate should not be held responsible for possessing the weapon — even though he threw it in the bay as Steinle lay dying.  Matt Gonzalez of the San Francisco Public Defender’s Office, the lead attorney in the case, said he will appeal the charge at some point after Garcia Zarate’s Dec. 14 sentencing in Superior Court. Gonzalez said his appeal will contend jurors should have been told that “momentary” possession of a gun is not necessarily a crime. “If you possess it just to dispose of it or abandon it, it wouldn’t be a crime,” he said.

Because I am not well versed in California's law of possession, I cannot provide an informed assessment of whether this defense claim provides a compelling basis to reverse the one state conviction the state jury brought back against Garcia Zarate. But I can provide a link to and excerpt from this press release from the US Department of Justice highlighting why federal possession law is now of great import to Garcia Zarate:

A federal grand jury indicted Jose Inez Garcia-Zarate today for being a felon in possession of a firearm and ammunition, and for being an illegally present alien in possession of a firearm and ammunition, announced United States Attorney General Jefferson B. Sessions; United States Attorney Brian J. Stretch from the Northern District of California; and Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Special Agent in Charge Jill Snyder.

According to the indictment, on July 1, 2015, Garcia-Zarate, a citizen of Mexico who reportedly is 47 years old, possessed a semi-automatic pistol and multiple rounds of ammunition in violation of 18 U.S.C. § 922(g)(1) (felon in possession of a firearm) and 18 U.S.C. § 922(g)(5) (unlawfully present alien in possession of a firearm).

An indictment merely alleges that a crime has been committed and Garcia-Zarate, like all defendants, is presumed innocent until proven guilty beyond a reasonable doubt. Garcia-Zarate currently is in state custody on other charges.  If convicted of either violation of 18 U.S.C. § 922(g), Garcia-Zarate faces a maximum statutory penalty of 10 years in prison.  However, any sentence will be imposed by the court only after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553.

Prior related post:

December 6, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

VW executive gets seven years in federal prison for emissions fraud

This Reuters article reports on today's notable white-collar sentencing in the Motor City.  Here are the sentencing basics:

A U.S.-based Volkswagen AG executive who oversaw emissions issues was sentenced to seven years in prison and fined $400,000 by a judge on Wednesday for his role in a diesel emissions scandal that has cost the German automaker as much as $30 billion.

The prison sentence and fine for the executive, Oliver Schmidt, were the maximum possible under a plea deal in August the German national made with prosecutors after admitting to charges of conspiring to mislead U.S regulators and violate clean-air laws.

“It is my opinion that you are a key conspirator in this scheme to defraud the United States,” U.S. District Judge Sean Cox of Detroit told Schmidt in court. “You saw this as your opportunity to shine ... and climb the corporate ladder at VW.”

Schmidt read a written statement in court acknowledging his guilt and broke down when discussing his family’s sacrifices on his behalf since his arrest in January. “I made bad decisions and for that I am sorry,” he said.

U.S. Department of Justice trial attorney Benjamin Singer argued in court that Schmidt was “part of the decision making process” at VW to hide a scheme to fake vehicle emissions results and had opportunities tell regulators the truth. “Every time he chose to lie,” Singer said.

In March, Volkswagen pleaded guilty to three felony counts under a plea agreement to resolve U.S. charges that it installed secret software in vehicles in order to elude emissions tests....

Schmidt was charged with 11 felony counts and federal prosecutors said he could have faced a maximum of up to 169 years in prison.  As part of his guilty plea, prosecutors agreed to drop most of the counts and Schmidt consented to be deported at the end of his prison sentence.

December 6, 2017 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (1)

"Envisioning an Alternative Future for the Corrections Sector Within the U.S. Criminal Justice System"

The title of this post is the title of this notable Rand research report that I just came across authored by Joe Russo, George Drake, John Shaffer and Brian Jackson. Here is a summary with some points from the report in via this Rand webpage:

Challenged by high costs and concerns that the U.S. corrections sector is not achieving its goals, there has been a growing focus on approaches to reform and improve the sector's performance.  Policies initiated during the tough-on-crime era led to aggressive prosecution, lengthier sentences, and an exploding correctional population.  In recent years, the corrections sector has been gradually shifting toward efforts to provide treatment, alternatives to incarceration, and enhanced programs to facilitate offender reentry.  Although judicial and policy decisions and public attitudes toward crime and sentencing determine the corrections population and the resources available for staffing and reform, the sector has a unique perspective and therefore can provide critical insight regarding what is working, what is not, and how things should be.

To contribute to the policy debate on the future of the corrections sector, researchers interviewed a group of prominent correctional practitioners, consultants, and academics. This report outlines their perspectives on the current state of corrections and their vision for the future.  These experts were specifically asked how they would redesign the corrections sector to better serve the country's needs.  The findings offer both an assessment of what is and is not working now and potential solutions to better achieve justice policy goals going forward.

Key Findings

The Corrections Sector Has Little Control Over the Many Factors That Affect Its Operations

  • Judicial and policy decisions and public attitudes toward crime and sentencing determine the corrections population and the resources available for staffing and reform.
  • The sector does have some control over how offenders are treated once they enter the system.

A Panel of Experts Agreed That the Sector's Primary Role Should Be to Facilitate Positive Offender Behavioral Change, but This Is a Complex Task

  • Three broad types of changes would be necessary for the sector to support this mission and help ensure offenders' successful reintegration into society: new programs and improved education and training for corrections staff, the elimination of revenue-generating correctional operations, and cultural change to prioritize rehabilitation over punishment.
  • There are many opportunities for the sector to leverage the latest developments in science, technology, and evidence-based practices to create alternatives to incarceration, guide the investment of scarce resources, and engage communities in initiatives to reduce recidivism and support offender reentry.

Recommendations

  • Panelists put forward several solutions to support the corrections sector's mission of facilitating positive offender behavior change, including diverting low-risk offenders and those with mental health or substance use problems to specialty facilities while reserving prisons for violent and dangerous offenders; shortening sentences and ensuring that offenders have a clear, attainable path to release; and creating smaller and safer facilities that are closer to cities with programs to support reentry.
  • In the near term, panelists recommended expanding and adequately funding probation, parole, and community-based resources to support offenders' reentry into their communities.

December 6, 2017 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

December 5, 2017

Notable advocate makes notable pitch to abolish juve LWOP

Malcolm Jenkins, who I still remember as a great Buckeye ballplayer, is now an NFL star using his voice and platform to discuss criminal justice reform issues.  He has this notable new commentary about juve LWOP under this full headline "America is the only country in the world still sentencing our kids to die in prison:For too long we have depicted our youth, especially our black youth, as lost causes. But they can change."  Here are excerpts:

As a black man in America, I’m keenly aware that people who look a lot like me are over-represented in the criminal justice system. The way adults of color are treated in our justice system is already upsetting, but the way our justice system treats children, especially black children, is simply deplorable.

Nowhere is this more clearly evident than on the issue of juvenile sentencing. Black children are grossly over-represented when it comes to kids sentenced to life without parole. This disturbing reality is personal to me: In Pennsylvania, where I live and play football for the Philadelphia Eagles, nearly 80% of juvenile lifers are black.

In 2012, the Supreme Court ruled that life sentences without parole should only be given to juveniles in the rarest of circumstances.  Last year, it ruled that those individuals currently serving life sentences without parole should have their cases reviewed.  Currently, more than 2,100 people who were sentenced as children are eligible to have their sentences reviewed and earn a second chance.  Approximately 300 of these people are from the city of Philadelphia alone.

In its decision, the Supreme Court said that juvenile life without parole, where kids are sentenced to literally die in prison, should only be given to teens found to be “irreparably corrupt.”  But in reality, according to the Fair Punishment Project, the “irreparably corrupt” child is a myth.  We have to stop locking up kids and throwing away the key. According to human rights groups, America is the only country that sentences kids to life without parole....

The infuriating irony here is that the kids who have received life without parole sentences are, in many ways, the young people who needed our help the most.  According to study conducted by the Sentencing Project, 79% of this population witnessed violence in their homes growing up, 40% were enrolled in special education classes, nearly half experienced physical abuse, and three-quarters of the girls had experienced sexual abuse.

America failed them once.  Today, these kids deserve a second chance.  Contrary to the super-predator rhetoric utilized by politicians in the past to justify locking up kids for life, adolescents really are different from adults — in almost every way.  Their brains are underdeveloped, they struggle with judgment, they are susceptible to peer pressure.

For too long, we have depicted our youth, especially our black youth, as fully developed adults who are a lost cause.  But they can change.  These are not the soulless “super-predators” the media scared its readers with in the 70s and 80s.  These are children.  Studies show that even those accused of the most serious crimes age out of crime....

A lot of people might question why, as a professional athlete, I’m speaking out on criminal justice issues.  I believe that it is my duty to use my platform to raise awareness of the kinds of institutional injustices that so rarely make the news — and that we so rarely question.  And I want to elevate the work that so many amazing community grassroots organizations are doing to try and bring about this change.

Fortunately, there is some hope, finally, in my hometown.  Philadelphia’s newly elected District Attorney has stated he will not seek juvenile life without parole (JLWOP) for any kid, no matter the crime. He has also vowed to allow older cases to be considered for parole.  This is a great start.  Now, other prosecutors should follow suit.

No matter their race or hometown, rehabilitation is a beautiful thing. After all, there is nothing more American than giving someone who has worked hard a (second) chance to pursue life, liberty and the pursuit of happiness.

December 5, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Lots of juicy SCOTUS relists for sentencing fans

Over at SCOTUSblog, John Elwood does regular yeoman's work via his "Relist Watch" postings that highlight cases that the Supreme Court considered but did not resolve during its recent certiorari review conferences.  Often (though not always), the relisting of a case is a precursor to a grant of certiorari or at least some notable ruling or commentary by some Justices.  And this week's installment of "Relist Watch" has all these exciting tales for sentencing fans:

The best-known of this week’s relists is Hidalgo v. Arizona, 17-251, which presents two questions involving capital punishment.  The first involves so-called “aggravator creep.” To “minimize the risk of wholly arbitrary and capricious” executions, the Supreme Court in Gregg v. Georgia wrote that the discretion of sentencing juries “must be suitably directed and limited” through legislatively prescribed aggravating circumstances -- such as committing murders for hire or committing multiple murders. Since the Gregg era, the Arizona legislature has more than doubled its aggravating factors to 14 -- and still doesn’t include driving slowly in the left lane. Hidalgo argues that as a result of Arizona’s long list of aggravating factors, 99 percent of those convicted of first-degree murder are eligible for execution, which does not do enough to perform the narrowing function that Gregg contemplated.  The case also presents a far broader all-the-marbles issue: “whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.” In other words, the case seeks to answer Justice Stephen Breyer’s call to bring an end to capital punishment....

There’s plenty for nerds to love about the remaining eight cases....  Lindsey v. Virginia, 17-132, involves the burden of production for a crime and whether it violates the due process clause to instruct a jury that a criminal defendant’s actions are “evidence of [the requisite] intent … unless there is believable evidence to the contrary.”...

That brings us to the last four cases, which present a single question (along with some extra issues you’ll have to read the actual petitions to catch up on) – Kasowski v. United States, 16-9649, Richter v. United States, 16-9695, C.D., E.F., and G.H. v. United States, 16-9672, and Koons v. United States, 17-5716. These cases all involve 18 U.S.C. § 3582(c)(2), which permits a district court to reduce a previously imposed sentence “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”  All four cases involve defendants whose sentences were based on a statutory mandatory-minimum sentence, or who were sentenced below the statutory mandatory minimum because they provided the government substantial assistance, as permitted by 18 U.S.C. § 3553(e).  The government now maintains that such defendants’ sentences were based on statutes rather than the sentencing guidelines and that those defendants therefore are ineligible for sentence reductions because they were not “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”  Several courts of appeals have adopted that view.  These four petitions seek to challenge that conclusion.

Though the Hidalgo cert petition has already gotten lots of attention for lots of reasons, I consider the § 3582(c)(2) federal sentencing issue to be the one of this bunch most like to result in a actual grant of certiorari.   I certainly expect Justice Breyer and maybe other Justices will have something to say about the Hidalgo case if (when?) cert is denied, and gosh knows a grant in that case would add a lot of extra capital intrigue to this SCOTUS Term (which many think will be Justice Kennedy's last).

December 5, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

"Remorse Bias"

The title of this post is the title of this notable new paper authored by Eve Hanan now available via SSRN.  Here is the abstract:

Whether a defendant expresses remorse at criminal sentencing often has a direct bearing on the severity of the sentence.  But how good are judges at accurately assessing genuine, meaningful remorse?  Research demonstrates that judges hold contradictory and unfounded views about how sincere remorse should be expressed and, as a result, are likely to misjudge remorse.  Legal and social science scholars have grappled with the challenge of accurately assessing remorse, but no one has analyzed whether implicit racial bias skews remorse assessments at criminal sentencing in predictable and systematically discriminatory ways.

In an effort to unmask this mode of discrimination, this Article synthesizes two areas of scholarship not previously compared — (1) scholarship on the role of remorse in criminal sentencing and (2) social science research on implicit racial bias — to argue that unconscious cognitive assumptions about race and criminality causes judges to discredit African American displays of remorse and, as a consequence, sentence them to harsher punishments.  At a time when racial disparity and implicit bias dominates national discussions of criminal sentencing reform, improving our understanding of where our criminal justice system is particularly susceptible to racial bias can help reformers mend these weaknesses in our system to ensure it works equally for everyone.

December 5, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (23)

New lawsuit claims Nebraska's death penalty repeal, before voter capital punishment preservation by initiative, precludes execution of already condemned

As reported in this local article, headlined "ACLU of Nebraska sues to block executions, says Ricketts overstepped in referendum process," a notable advocacy group has filed a notable new lawsuit on behalf of a notable prisoner group. Here are the details:

The 11 men on Nebraska death row do not have valid death sentences, a leading anti-capital punishment group argued in a lawsuit filed [Monday]. The ACLU of Nebraska charged that the death penalty repeal, enacted by the State Legislature over a veto by Gov. Pete Ricketts, was in effect long enough to convert the death sentences for the 11 men to life in prison.

Last year’s vote by Nebraskans to restore capital punishment did so only for future heinous murders, according to the 29-page lawsuit filed shortly after midnight. The suit also alleges that Ricketts violated the separation of powers clause of the State Constitution when he “proposed, initiated, funded, organized, operated and controlled” the signature-gathering campaign that allowed voters to overturn the Legislature’s repeal of the death penalty.

The ACLU claims that the governor “exhausted” his executive powers when he vetoed the repeal law passed by lawmakers and that his subsequent steps to back a referendum that restored the death penalty were unlawful “legislative” activities that are reserved, via the separation of powers clause, for the State Legislature.

The referendum process, the civil rights group argued, is for citizens, but Ricketts had encouraged formation of the signature drive, played a leading role in financing it and had lent key employees to the effort, which was officially led by people with strong ties to the governor. “This is way beyond what the governor can do in his personal capacity,” Danielle Conrad, executive director of the ACLU of Nebraska, said Sunday. “This is about blurring the lines and overstepping the bounds.”

A spokesman for Ricketts said Monday that the “frivolous” ACLU lawsuit was another attempt by the “liberal advocacy group” to overturn the “clear voice” of the people. Taylor Gage, the spokesperson, rejected any wrongdoing by the governor. “The Governor’s Office holds itself to a high standard and follows state law regarding the use of taxpayer resources,” Gage said in a prepared statement. “The administration remains committed to protecting public safety and creating a safe environment for our corrections officers.”

The Ricketts administration recently gave notice that it may soon seek an execution date for one of those 11 death row inmates, Jose Sandoval, who was sentenced to die for his leading role in the slaying of five people inside a Norfolk bank in 2002. A month ago, state prison officials notified Sandoval that four lethal injection drugs had been purchased for use in an execution. The notice is required before an execution date can be requested....

Monday’s lawsuit names the 11 men on Nebraska’s death row as plaintiffs, and follows other legal action launched by the civil rights group against the state in recent months. In August, the ACLU asked a federal judge to intervene to reduce the chronic overcrowding in state prisons and address the shortage of medical and mental health care for inmates. In addition, the ACLU went to court on Friday to force the state to reveal the supplier of four lethal-injection drugs, citing state public records laws and the state’s botched past attempts to obtain such drugs.

Conrad said the legal actions reflect the ACLU’s commitment to defend the U.S. and Nebraska Constitutions, and is in step with the organization’s long-running opposition to the death penalty. Conrad, a former state senator and a Democrat, was among the leaders of Nebraskans for Public Safety, the group that campaigned unsuccessfully to persuade voters to retain the repeal of the death penalty. She said that today’s lawsuit is about policy, not politics.

The complaint in this action is available for download at this link.

December 5, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

December 4, 2017

Latest trial of Michael Slager for killing Walter Scott taking place during his federal sentencing for civil rights offense

As noted in this post from May, after a state mistrial in December 2016, former South Carolina police officer Michael Slager pleaded guilty to a federal civil rights offense as a result of his lethal shooting of Walter Scott.  That resolution all but ensured that continued debate concerning Slager's action would take place during his federal sentencing.  And this local article reporting on the first day of that sentencing highlights that this continued debate is in the form of a kind of mini-trial at sentencing.  Here are some details:

What Walter Scott did during his fatal confrontation with North Charleston officer Michael Slager and what the policeman said afterward quickly became the focus of the first day of Slager’s sentencing hearing.

Slager, 36, already has acknowledged violating Scott’s civil rights by repeatedly shooting the fleeing black man as a bystander filmed the encounter. He pleaded guilty to that in May, but key facts remain in dispute — a point on full display Monday at the federal courthouse in downtown Charleston.

Before hashing out a penalty, a judge must decide this week what underlying offense Slager committed in depriving Scott of his constitutional right to be free of excessive force: murder or voluntary manslaughter. After listening to three government witnesses, the judge gave no initial indication on how he might rule. The proceeding is expected to resume Tuesday morning, possibly with another prosecution witness before the defense takes over.

Prosecutors said Scott was simply trying to escape a traffic stop, and they called eyewitness Feidin Santana to back up their contention that Slager murdered Scott and lied to cover his tracks. They rejected Slager’s explanation for the shooting: that he fired only after Scott took his Taser. “I saw a man just determined to get away and leave,” Santana said of Scott. “Like I say in the video, it was an abuse — something unnecessary.”

It was the second time Santana publicly testified against Slager, whose murder trial in state court ended a year ago with a hung jury. Portions of his latest account in U.S. District Court were geared toward helping Judge David Norton decide whether Scott’s conduct contributed to Slager’s decision to shoot. Prosecutors said no; it was wrong from the moment the officer first pulled the trigger.

But defense lawyers said Scott could have at any point stopped and surrendered, and lead attorney Andy Savage pressed Santana about whether Scott had ever raised his arms and given up. “If that happened,” Santana responded, “we wouldn’t be here.”

Santana’s video footage of the April 4, 2015, killing brought national scrutiny to North Charleston amid a broader examination of police-involved deaths across the country. It also landed Slager in jail on a state murder charge when the cellphone clip emerged publicly three days later.

But the jurors in the state case were unable to agree whether he had committed a crime. At least one of them sat in the courtroom Monday, this time as an observer....

The hearing resembled a trial without the same rules of evidence and procedures that can slow proceedings. And the ultimate arbiter of justice is Norton, who can pick any sentence between no prison time and up to life behind bars.  A pre-sentencing report suggested a term of between 10 and nearly 13 years in prison, but defense attorneys asked the judge Monday for a “significant” departure from those guidelines because of the role Scott played in his own death.

In my prior post about this case after Slager's plea, I calculated based on the government advocating for the court to apply the guidelines for second degree murder and obstruction of justice that Slager would be facing a guideline range of roughly 17 to 22 years of imprisonment. But it would appear that the PSR in this case has urged the court to consider Slager guilty only of voluntary manslaughter for sentencing purposes. Of course, Slager has in fact only pleaded guilty to "a violation of 18 U.S.C. § 242, Deprivation of Rights Under Color of Law," but in the magical world of federal sentencing the offense of conviction still often does not really matter all that much.  In this high-profile case, it will be a judge not a jury tasked with both deciding what crime he really committed and what sentence should go with that crime.

Prior related post:

December 4, 2017 in Advisory Sentencing Guidelines, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

USSC conducting public hearing on "Fentanyl, Fentanyl Analogues, and Synthetic Cannabinoids"

Tomorrow morning, as detailed in this agenda schedule, the US Sentencing Commission will be hearing from experts on an issue at the intersection of law enforcement, chemistry and public health.  Here are the basic details:

Public Hearing on Fentanyl, Fentanyl Analogues, and Synthetic Cannabinoids

Tuesday, December 5, 2017 at 9:00 a.m.

Pursuant to Rule 3.4 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public hearing is scheduled for Tuesday, December 5, 2017, at 9:00 a.m. (ET).  The public hearing will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., Washington, DC in Suite 2-500 (South Lobby).

The purpose of the public hearing is for the Commission to receive testimony from experts on fentanyl, fentanyl analogues, and synthetic cannabinoids, including their chemical structure, pharmacological effects, trafficking patterns, and community impact.

As of this writing, the written testimony of the 16 scheduled hearing witnesses are not yet posted.  But the USSC typically does a fine job of making testimony publicly available so I expect some will be accessible here before long.   I cannot help but wonder if Kellyanne Conway, whom some are calling the new "Opioid Czar" after comments by AG Jeff Sessions last week, might be at the hearing as part of her responsibilities coordinating and leading effort from the White House in this arena.

December 4, 2017 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1)

As one former member of Congress enjoys release from prison after five years, another one gets sentenced to five years in Florida federal court

I blog here over the weekend about the resentencing hearing on Friday that allowed former US Representative William Jefferson to officially put federal prison behind him after serving five years and five months. Today, as reported in this local article, another former member of Congress got sentenced to prison in another federal courthouse.  Here are the details:

Former U.S. Rep. Corrine Brown was sentenced Monday to five years in federal prison for fraud and tax crimes that included raising about $800,000 for a sham charity. Brown’s longtime chief of staff, Ronnie Simmons, was sentenced to 48 months in prison, and the charity’s founder, One Door for Education President Carla Wiley, was sentenced to 21 months.

U.S. District Judge Timothy Corrigan said he believed the Democrat used her position in Congress to achieve an “admirable record of service.”  However, he also said she abused the trust of that office in order carry out a criminal conspiracy.

“This is a sad day for everyone,” Corrigan told Brown shortly after sentencing her.  “I was impressed with all the outpouring of support for you, and I think it’s a tribute to all the work you’ve done over the years. That’s what makes this all the more tragic.”...

Corrigan ordered Brown to report to prison no earlier than Jan. 8 to an as-yet undetermined prison, but allowed her to remain free until then.  Brown’s attorney, James Smith of Orlando, argued for probation and said Brown would appeal the sentence.

An appeal may not keep the 12-term congresswoman from going behind bars, however. Federal rules say Brown should begin serving her time while the appeal is pending unless the judge finds the defense is raising substantial issues that are likely to result in a new trial or a sentence shorter than the time he’ll need to decide the appeal.

Prosecutors asked Corrigan for at least five years in prison during a sentencing hearing held last month.  A pre-sentencing report from courthouse staff, which the judge isn’t required to follow, recommended a prison term between seven years, three months and nine years.

That term was based on sentencing guidelines for Brown’s convictions on 18 counts at her May trial.  Jurors found her guilty of charges involving wire and mail fraud, conspiracy, concealing income and filing false tax returns.  Thirteen of the counts Brown was convicted of involved her fundraising efforts for One Door for Education, an organization she falsely described as being a tax-exempt nonprofit supporting projects to help children....

Between 2012 and the start of 2016, One Door received about $800,000 in donations, often from wealthy businesspeople who later said Brown personally approached them and told them One Door would use the money for kids’ causes.  In reality, jurors were told during Brown’s trial, only a tiny sliver of the money was spent on real charity, while more than $330,000 went into party-like events like outings to a Beyonce concert, a Jaguars-Redskins game in Washington and the invitational golf tournament One Door sponsored in Brown’s honor at TPC Sawgrass....

Prosecutors’ argument that the fraud had been significant was underscored by their requests for Corrigan to order the three to collectively forfeit more than $650,000 the government labeled as proceeds from the crime.  In addition, under a separate part of the law involving repaying crime victims for their losses, prosecutors asked for Brown and Simmons to be ordered to make restitution payments totaling $452,000 to donors who gave to One Door.  They also asked for an order making Brown pay $62,000 in restitution to the IRS for lying on her taxes, and an order for Simmons to pay another $91,000 in restitution for a charge involving him alone creating a ghost employee on Brown’s staff payroll....

If Corrigan’s sentence stands, Brown’s imprisonment will end a tumultuous but significant career in which Brown and two others, all elected in 1992, became the first African-Americans that Florida sent to Congress since the 19th century.

December 4, 2017 in Booker in district courts, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (4)

Two Justices make statement about Alabama capital case in which cert is denied

There was not too much of note in today's order list from the Supreme Court, though sentencing fans might be intrigued by Justice Sotomayor's short statement, joined by Justice Breyer, regarding the denial of certiorari in Floyd v. Alabama. Here is how the statement starts and ends:

Petitioner Christopher Floyd was sentenced to death by an Alabama jury that was selected in a manner that raises serious concerns under our precedent in Batson v. Kentucky, 476 U.S. 79 (1986), J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), and Foster v. Chatman, 578 U.S. ___ (2016).  Although the unique context of Floyd’s case counsels against review by this Court, I find the underlying facts sufficiently troubling to note that in the ordinary course, facts like these likely would warrant a court’s intervention....

That we have not granted certiorari should not be construed as complacence or an affirmance of all of the reasoning of the courts below.  The unusual posture in which Floyd raised his Batson and J.E.B. claims warrants caution in the exercise of the Court’s review here.  Yet, courts reviewing claims in circumstances like these must be steadfast in identifying, investigating, and correcting for improper bias in the jury selection process.  Such discrimination “‘casts doubt on the integrity of the judicial process,’ and places the fairness of a criminal proceeding in doubt.” Powers v. Ohio, 499 U. S. 400, 411 (1991) (citation omitted).

December 4, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

December 3, 2017

SCOTUS with a set of intriguing big and small cases as it winds down 2017 oral arguments

This coming week, the Supreme Court has its last set of oral arguments before the end of the calendar year.  The case sure to get most of the mainstream press attention is Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, with wedding cakes, religious liberty, same-sex marriage and free expression in the discourse. 

The three cases I will be watching most closely in the week ahead involve limits on federal preemption powers (Christie v. National Collegiate Athletic Association), attorneys fees in prisoner suits (Murphy v. Smith) and tax law obstruction requirements (Marinello v. United States).  The folks at SCOTUSblog have their always helpful argument previews posted for these cases, and here are links to these previews:

Christine v. NCAA:  Argument preview: The 10th Amendment, anti-commandeering and sports betting 

Murphy v. Smith:  Argument preview: Who should pay attorneys who win on behalf of prisoners? 

Marinello v. United States Argument preview: What limits tax law obstruction-of-justice charges? 

The federalism case is obviously the most consequential of this bunch and for many areas of law.  I helped a bit with this amicus brief discussing some of the potential criminal justice implications of these issues raised in Christie v. NCAA, and I will be quite interested to see whether and how the Justices during oral argument frame the discussion of these issues.

December 3, 2017 in Marijuana Legalization in the States, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12)

"Disproportionate Impact: An Impetus to Raise the Standard of Proof at Sentencing"

The title of this post is the title of this student note authored by Anthony LoMonaco recently published in the October 2017 issue of the NYU Law Review.  Here is its abstract:

It is well-known that in a criminal trial, the prosecution must prove culpability beyond a reasonable doubt.  But during the subsequent sentencing phase, the standard of proof is much lower: a preponderance of the evidence.  This relatively low standard can lead to a problem known as “disproportionate impact.”  Disproportionate impact occurs when evidence of additional criminal activity is introduced during the sentencing phase and becomes more determinative of the defendant’s punishment than the actual crime of conviction.  Such evidence can subject criminal defendants to significantly more punishment without the safeguards available at a criminal trial, and it may include uncharged and acquitted crimes.

In response to this issue, some circuit courts fashioned an exception to the preponderance rule, raising the standard of proof to the clear and convincing standard to protect the due process rights of criminal defendants. However, use of this exception was curtailed in all circuits but the Ninth when the Supreme Court rendered the Sentencing Guidelines advisory in 2005.  This Note analyzes the lopsided circuit split surrounding the disproportionate impact exception and challenges the notion that the exception is no longer necessary because the Guidelines have become advisory.

December 3, 2017 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (1)