Thursday, May 17, 2012
Judge Young's latest account of (and homage to) jury involvement in sentencing fact-finding
US District Judge William Young of the District of Massachusetts, who has produced a regular supply of interesting (and lengthy) opinions about the role of juries in the modern criminal justice system, today issued another interesting (and lengthy) opinion such in US v. Gurley, No. NO. 10-10310 (D. Mass. May 17, 2012) (available for download below). Judge Young's work always merits attention, and the 51-page sentencing opinion in Gurley does not disappoint. There is far too much ground covered in Gurley to allow a simple summary, but here is the start of the main legal discussion section -- which begins on page 24 of the opinion! -- to provide a flavor of why Gurley is today's federal sentencing must-read:
I am a district judge sitting in the First Circuit. I owe the utmost fidelity to the Acts of Congress, the decisions of the Supreme Court, and those of the First Circuit. Government waiver aside, I owe a duty to explain that my post-Booker insistence on keeping the jury-front-and-center is fully consonant with the controlling statutes and case law.
The issues presented to this Court are whether the Court “must” apply the ten-year mandatory minimum sentence to the basic sentencing range set out in 21 U.S.C. § 841(b)(1)(C) and whether the principle of juror lenity bears on determinations as to the authorized sentence range.
I answer to the first question in the negative because the statutory range authorized by the jury does not provide for a mandatory minimum sentence. As to the second question, Supreme Court precedent binds this Court to recognize the principle of juror lenity in determining the applicable sentencing range. In doing so, this Court does not abdicate its post-Booker discretion to decide a just sentence based on a fair preponderance of the evidence as counseled by the Sentencing Guidelines. Rather, this Court endeavors to harmonize the principle of juror lenity with the jury’s recognized authority to acquit a defendant should a sentencing range appear to it disproportionate.
May 17, 2012 in Blakely in Sentencing Courts, Booker and Fanfan Commentary, Booker in district courts, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, May 14, 2012
Professor Bowman's latest potent pitch for a Booker fix
I have long respected (and even have sometimes agreed with) Frank Bowman's informed perspectives on federal sentencing policy and practice. Thus I am pleased to see his latest and greatest advocacy for reform of the post-Booker system now available on SSRN. This latest piece, which is forthcoming in the Federal Sentencing Reporter, is titled "Nothing is Not Enough: Fix the Absurd Post-Booker Federal Sentencing System." Here is the abstract:
This article is an elaboration of testimony I gave in February 2012 at a U.S. Sentencing Commission hearing considering whether the advisory guidelines system created by the Supreme Court’s 2005 decision in United States v. Booker should be modified or replaced. I argue that it should.
First, the post-Booker advisory system is conceptually indefensible. It retains virtually every feature excoriated by critics of the original sentencing guidelines. Its extreme ‘advisoriness,’ while partially ameliorating some problems with the original guidelines, reintroduces the very concerns about unreviewable judicial arbitrariness that spawned the structured sentencing movement in the first place. More importantly, the post-Booker system does not solve the biggest problem with the pre-Booker system — that its architecture and institutional arrangements predisposed the Commission’s rule-making process to become a one-way upward ratchet which raised sentences often and lowered them virtually never. Its sole relative advantage — that of conferring additional (and effectively unreviewable) discretion on sentencing judges — is insufficient to justify its retention as a permanent system.
Second, there exist a number of constitutionally permissible alternatives to the court-created Booker system, one of which — that originally proposed by the Constitution Project and more recently endorsed by Judge William Sessions, former Chair of the U.S. Sentencing Commission — is markedly superior to the present system.
Third, the difficult problem is not designing a sentencing mechanism better than either the pre- or post-Booker guidelines, but ensuring that such a system, once in place, does not replicate pre-Booker experience and become a one-way upward ratchet prescribing ever higher sentences. I offer suggestions about how this difficulty might be solved. However, I concede both the difficulty of this problem and the justice of the concern that, however imperfect the advisory system, it may be the best that can be achieved given the present constellation of institutional and political forces.
Sunday, May 06, 2012
Making a full-throated pitch for SCOTUS to again address reasonableness review
Regular readers may know that I am generally underwhelmed with how some circuits have approached reasonableness review, and I have long been troubled with the disinclination of some circuit to review rigorously within-Guideline sentences. Driven in part by those concerns, I have authored an amicus brief support in cert in the US v. Rubashkin case in which I lament the state of reasonableness review and urge SCOTUS involvement. The full amicus (which I filed aided by the fine folks at the Washington Legal Foundation) can be downloaded below, and here are excerpts from the state of the argument:
Problematically, in the half-decade since this Court’s rulings in Rita, Gall, and Kimbrough v. United States, 552 U.S. 85 (2007), the circuit courts have developed inconsistent and sometimes constitutionally suspect approaches to reasonableness review. Some circuits now regularly reverse sentences as procedurally unreasonable; others almost never do. Some circuits now regularly engage with the statutory factors of § 3553(a) when reviewing for substantive reasonableness; others almost never do. Accordingly, reasonableness review is not helping to “iron out sentencing differences” nationwide, but rather is exacerbating these differences. Tellingly, in recent official testimony, the U.S. Department of Justice has lamented the circuits’ disparate approaches to reasonableness review, and the U.S. Sentencing Commission has urged Congress to amend the SRA to resolve circuit splits over the application of reasonableness review. And many federal judges and commentators have asserted that appellate review of sentences — and all of modern federal sentencing under advisory Guidelines — would benefit significantly from this Court’s further guidance on the contours of reasonableness review.
Reasonableness review has been distinctly dysfunctional in those circuits that have adopted a so-called “presumption of reasonableness” for reviewing within-Guideline sentences. Curiously, there has yet to be a single appellate ruling that expounds upon — or, for that matter, even discusses — when and how this “presumption” can be rebutted or the legal consequences of any (phantom) rebuttal. Rather than function as the true “presumption” this Court outlined in Rita, the “presumption of reasonableness” has been used to convert the Guidelines into a sentencing safe-harbor, making all within-Guideline sentences effectively immune from substantive reasonableness review. (Indeed, despite the appeal of thousands of within-Guideline sentences since Rita, not one single within-Guideline sentence has been found substantively unreasonable in the “presumption” circuits.) That some circuits treat within-Guideline sentences as per se reasonable not only conflicts with this Court’s clear holding in Rita and Congress’s instructions in § 3553(a), but also raises serious constitutional concerns in light of this Court’s Sixth Amendment jurisprudence in Booker and its progeny....
[D]ue to the Eighth Circuit’s routine of always affirming within-Guideline sentences, the district court approached the sentencing of Mr. Rubashkin as if only the Guidelines mattered; in turn, the Eighth Circuit affirmed an extreme prison sentence for a nonviolent first offender using the rubber-stamp approach to reasonableness review it has adopted only for within-Guideline sentences. This case thus highlights how some (but not all) district courts are still disregarding the statutory instructions of § 3553(a) that Booker made central to federal sentencing, and how some (but not all) circuit courts are disregarding this Court’s instructions for reasonableness review set forth in Rita, Gall, an Kimbrough. Absent this Court’s intervention, the rulings below will stand as a high-profile reminder that district and circuit courts can feel free to treat Booker and its progeny as merely a lengthy “tale told by [the Justices], full of sound and fury, signifying nothing.” William Shakespeare, Macbeth, Act V, Scene 5.
Friday, April 06, 2012
Russian arms dealer gets below-guideline federal sentence of 25 years
As reported in this Bloomberg article, which is headlined "Viktor Bout Gets Minimum Prison Term of 25 Years for Weapon Plot," a notorious arms dealer actually got preety nice treatment at his federal sentencing yesterday. Here are the sentencing specifics:
Viktor Bout, the international arms dealer convicted of conspiracy for plotting to sell weapons to a Colombian terrorist group, was sentenced to 25 years in prison, the minimum term he faced.
A former officer in the Soviet Union, Bout, 45, was also sentenced yesterday to five years’ probation and ordered to forfeit $15 million by U.S. District Judge Shira Scheindlin in Manhattan.... Scheindlin rejected prosecutors’ arguments that Bout be jailed for life, saying he responded to the deal presented in the sting operation and otherwise wouldn’t have sought out an opportunity to sell weapons to be used against Americans....
Scheindlin said that while Bout “has sold weapons to some of the most vicious and violent regimes in the world,” it was unfair to impose an increased sentence applicable to terrorists. The judge said she would recommend that Bout serve his sentence near his lawyers in New York. She also said she would ask the Bureau of Prisons not to put Bout in solitary confinement.
Bout’s lawyer, Albert Y. Dayan, had urged the judge in a letter to refuse to punish Bout and not to become “an unwilling party in his wrongful prosecution.” In the hearing yesterday, he asked Scheindlin to give his client the minimum 25-year term. Federal sentencing guidelines, which are not binding, called for a life sentence, prosecutors said....
At Bout’s trial, Andrew Smulian, an associate who pleaded guilty and cooperated with the government, and two undercover agents testified that Bout offered to sell them millions of dollars in weapons, including surface-to-air missiles, armor- piercing rocket launchers and AK-47 rifles. Prosecutors said Bout, who also worked as an arms dealer in East Africa in the 1990s, controlled a fleet of as many as 50 cargo planes capable of transporting weapons and military equipment to Africa, South America and the Middle East.
During his address to the judge, which was translated by an interpreter, Bout thanked his lawyers and court officers who had shown him respect. He pointed to government agents in the courtroom and said, “Let God forgive you, and you will answer to him, not to me.”
Tuesday, April 03, 2012
"Racial Disparities, Judicial Discretion, and the United States Sentencing Guidelines"
The title of this post is the title of this new empirical paper available via SSRN authored by Joshua Fischman and Max Schanzenbach on a topic that has already generated significant conflicting empirical analyses and that is always of interest to federal sentencing policy-makers. Here is the abstract:
The United States Sentencing Guidelines were instituted to restrict judicial discretion in sentencing, in part to reduce unwarranted racial disparities. However, judicial discretion may also mitigate disparities that result from prosecutorial discretion or Guidelines factors that have disparate impact. To measure the impact of judicial discretion on racial disparities, we examine doctrinal changes that affected judges’ discretion to depart from the Guidelines. We find that racial disparities are either reduced or little changed when the Guidelines are made less binding. Racial disparities increased after recent Supreme Court decisions declared the Guidelines to be advisory; however, we find that this increase is due primarily to the increased relevance of mandatory minimums. Our findings suggest that judicial discretion does not contribute to, and may in fact mitigate, racial disparities in Guidelines sentencing.
April 3, 2012 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender | Permalink | Comments (0) | TrackBack
Friday, March 30, 2012
Interesting appeal by federal prosecutors of interesting white-collar sentence
This local press report, headlined "U.S. appeals sentence of Michael Peppel, former MCSi executive," reports on federal prosecutors' decision to appeal an interest white-collar sentence that gave a maximum fine but minimum jail time to a corporate criminal. Here are the basic details:
Federal prosecutors are challenging the seven-day jail sentence given last year to Michael E. Peppel, former top executive of MCSi Inc., for his guilty pleas to felony crimes related to the company’s 2003 collapse and insolvency.
Peppel’s sentence failed to reflect the seriousness of his offenses, provide just punishment, promote respect for the law or send a message of deterrence for those who would commit similar crimes, U.S. Attorney Carter Stewart argued in his written arguments filed with the 6th U.S. Circuit Court of Appeals on Tuesday.
Stewart asked the Cincinnati-based appeals court to throw out the seven-day punishment and order resentencing by U.S. District Judge Sandra Beckwith, who sentenced Peppel on Oct. 24.... Peppel was also fined the legal maximum of $5 million, must disclose his criminal record to all employers, must submit to random drug testing and must do community service, according to his sentencing terms. He has already served his seven days behind bars.
His lawyer, Ralph Kohnen, said the defense will fight efforts to impose a longer term of incarceration on Peppel, who was MCSi’s president and chief executive officer. “The government’s decision was unfortunate,” Kohnen said Thursday. “Judge Beckwith’s sentence was thoughtful and appropriate. Her sentence was just, proper and fair.”
Under a court-approved agreement that took effect this month, Peppel has committed to pay $3,000 per month toward his $5 million fine. At that rate, it would take him 50 years to pay $1.8 million of the fine and 100 years to have paid $3.6 million of it.
Peppel, 44, avoided trial in August 2010 by pleading guilty to willful false certification of a financial report by a corporate officer; money laundering, and conspiracy to commit securities fraud. He could have faced up to 50 years in prison. The government said his crimes helped sink MCSi, a Kettering-based computer and audiovisual equipment company. Its failure cost 1,300 employees their jobs, benefits and retirement income and left investors holding worthless stock.
Beckwith initially determined that, under federal sentencing guidelines, a prison term for Peppel of eight to 10 years would be appropriate. But after the defense presented 113 letters of support from Peppel’s family and friends, and argued that he had already been publicly humiliated and agreed to a lifetime ban on his ever serving again as a corporate chief executive, the judge imposed the seven-day jail term. Beckwith said she does not believe Peppel is likely to repeat his crimes and does not represent a threat to the public.
For a variety of reasons, in cases like this in which there appears to be no threat to public safety, I see as quite reasonable a judge's decision to impose a huge fine (which makes a defendant essentially an indentured servant to federal taxpayers for life) rather than requiring a lengthy prison term (which requires federal taxpayers to pay for a defendant's room-and-board while he catches up on reading at Club Fed). But, obviously, federal prosecutors have a different view and I will be very interested to see how this appeal ends up playing out in the Sixth Circuit.
March 30, 2012 in Booker in district courts, Booker in the Circuits, Criminal Sentences Alternatives, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack
Wednesday, March 28, 2012
Latest USSC quarterly data show slight downtick in within-guideline sentences
I am pleased to report that the US Sentencing Commission, fresh on the heels of releasing lots of complete Fiscal Year 2011 federal sentencing data (as reported here), today has released on its website the latest, greatest, freshest new quarterly sentencing data. The USSC's latest data report, which can be accessed here, is described this way:
First Quarter FY12 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first quarter of fiscal year 2012. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published March 28, 2012)
The new data continue to show the same basic story lines and relatively stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that just under 55% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in over 25% of all cases.
Most notably, after the last two quarters revealed a slight uptick in the total number of within-guideline sentences (mostly as a result of a slight decrease in the number of judge-initiated below-guideline sentences), these 1st Quarter FY12 data shows a new downtick in within-guideline sentences, though mostly as a result of an increase in the number of prosecutor-initiated below-guideline sentences.
Friday, March 16, 2012
Eighth Circuit affirms lengthy (but way below-guideline) prison sentence for "inadvertent" illegal possession of "old hunting ammunition"
An otherwise inconsequential sentencing affirmance from the Eighth Circuit today in US v. Anderson, No. 10-3387 (8th Cir. Feb. 16, 2012) (available here), caught my attention because the facts justifying the federal conviction seem so innocuous and because the sentencing realities the defendant faced seem so remarkable. Here are snippets from the opinion that made me consider this case blog-worthy:
A jury found Defendant-Appellant Craig Leslie Anderson guilty of being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)....
Concluding that Anderson had perjured himself at trial [by testifying he did not know he possessed the ammunition], the district court applied a two-level enhancement to Anderson's offense level pursuant to United States Sentencing Guidelines § 3C1.1, resulting in an adjusted advisory Guidelines range of 84–105 months. The court then determined that a traditional departure was appropriate based on overstated criminal history pursuant to U.S.S.G. § 4A1.3(b), and adjusted the advisory Guidelines range downward to 77–96 months. Finally, the court granted a variance and imposed a sentence of 45 months' incarceration....
In the statement of reasons for the sentence, the district court explained ... "Anderson's crime is among the least serious felon-in-possession offenses that I have seen. Mr. Anderson possessed old hunting ammunition that appears to have been inadvertently overlooked when law-enforcement officers confiscated his firearms and ammunition in 2005. There is no evidence that Mr. Anderson could have used, or intended to use, the ammunition. I am not aware of any evidence that Mr. Anderson possessed a gun or any hunting gear.... Mr. Anderson's possession can fairly be described as inadvertent."
I also believe Mr. Anderson when he says that he did not know that his possession of the ammunition was illegal.... The State of Minnesota specifically warns felony-level probationers that they may not possess firearms, but the State does not warn that they may not possess ammunition. There are logical reasons for this that have to do with the difference between state and federal law as well as the difference between criminal laws versus conditions of probation. But these types of distinctions may be difficult for a layperson to appreciate....
"I do believe that, if Mr. Anderson had known that he could not possess ammunition, he may not be in the situation that he is in today. For these reasons, I believe that the Guidelines range in this case is too high to serve the purposes of sentencing and that a downward variance is warranted."
In short, the defendant here was convicted of illegal possession of hunting shells, which he inadvertently possessed and likely did not know was illegal for him to possess. Long-standing criminal doctrines about ignorance of the law means that his lack of knowledge of federal law does not allow him to escape liability, but even more remarkable is that the federal sentencing guidelines called for 7 to 9 years in federal prison(!) for the crime of "inadvertent" illegal possession of hunting shells. (Importantly, this high sentencing range was driven up by the defendant's criminal history, though the district judge also concluded that these guidelines also were over-inflated in this case.)
To the district judge's sentencing cre"dit, he decided that he should not send Anderson to federal prison for the better part of a decade for the ghastly crime of "inadvertent" illegal possession of hunting shells. Still, the judge decided that nearly four years in federal prison was necessary for this crime, and the Eighth Circuit panel required merely two sentences at the very end of its opinion to reach the conclusion that the imoposition of this lengthy federal prison term for this crime was reasonable and thus not an "abuse of discretion."
Sunday, March 04, 2012
New TRAC federal sentencing data (with judge identifiers!) highlights post-Booker variations
A potential blockbuster new set of federal sentencing data is emerging this coming week thanks to the folks at TRAC, as first reported in this new AP article headlined "Federal sentences still vary widely." Here are excerpts from this first report on a story which I suspect will garner lots of attention (and posts) in the coming days and weeks:
A new study shows that federal judges are handing out widely disparate sentences for similar crimes 30 years after Congress tried to create fairer results, but the differences don't line up with the party of the president who appointed the judges, despite any impressions that Republicans or Democrats may be tougher or softer on crime.
Sentencing data from the past five years that was analyzed for The Associated Press by the Transactional Records Access Clearinghouse during this presidential election year show that sentences for the same types of crimes vary significantly between judges in the same courthouse. But the party of the president who picked a judge is not a good predictor of whether a judge will be tough or lenient on a defendant found guilty at trial.
The analysis showed the judges who meted out the harshest average sentences after trials for three of the most common types of crime — drugs, weapons and white-collar charges — were split evenly between the two parties, based on which president appointed them....
The sentencing disparities can be vast, but the study shows they are not partisan. For example, defendants convicted in a drug trial in the Southern District of California got an average sentence of 17 years before Republican-appointed judges, compared with six years before Democratic counterparts. But a weapons conviction after trial in the Eastern District of Michigan resulted in an average sentence of 21 years before the Democratic-appointed judges and an average of less than 12 from the Republican ones.
Those figures come from TRAC, a research center at Syracuse University that uses the Freedom of Information Act to collect data about federal law enforcement activities.
On Monday, TRAC planned to launch the first publicly available database of sentencing records, sortable by judge, after a 15-year struggle to get records from a reluctant Justice Department. The center has filed FOIA lawsuits against the department four times, dating to 1998, and combined the hundreds of thousands of records it ultimately obtained with information directly from the federal courts to produce the database.
The database, available to anyone who pays $65 a month for a TRAC subscription, shows how many sentencings each federal judge has handled from the 2007-2011 budget years, the average sentence each issues and how long on average it takes the judge to dispose of a case. It compares each judge's figures with others in the same district and across the country, as well as the percentage of their cases by type of crime. That data could be useful to researchers or attorneys trying to gauge the odds their clients face with a particular judge.
TRAC co-director David Burnham said the data raises questions about the extent to which the goal of equal justice under the law is being served in some districts. He said TRAC doggedly pursued the data because it's vital the public and the courts have evidence that could improve the justice system....
A striking difference jumps out on first glance at the database: The huge variation in workloads between judges. Eleven judges in Southwest border states handled more than 800 cases on average a year, because of the large number of illegal immigrants captured in the region. All of the judges ranked in the top 25 for heaviest caseload are from Southwest border districts, led by U.S. District Judge Robert Brack in New Mexico with 6,331 sentencings over the five years and Judges George Kazen and Micaela Alvarez from the Southern District of Texas with more than 5,750 each.
There is so much of political and practical importance to this story and the data that TRAC has assembled (and I have placed the important data backstory in bold because it merits extra attention).
Most fundamentally, the data TRAC have assembled involve, to my knowledge, the first major compilation of federal sentencing outcomes with specific information about which judges imposed what sentences. For that reason (and many others), I suspect a lot of folks (myself included) will be looking to buy this valuable data from TRAC and will be eager to figure out (a) how accurately it is assmebled and reported, and (b) how best to utilize this important new data for various purposes.
Wowsa! And stay tuned federal sentencing fans...
Monday, February 27, 2012
Trio of notable sentencing losses by child porn defendants in Sixth Circuit
The Sixth Circuit has, just in the last two business days, handed down three notable published sentencing opinions in child porn cases. For a variety of reasons, anyone following this area of federal sentencing ought to find time to review the trio. But, as explained at the end of this post, such a review will not leave one with much confidence about modern federal sentencing justice in these kinds of cases.
Based on a too-quick review of the trio, the opinion in US v. Robinson, No. 09-1959 (6th Cir. Feb. 27, 2012) (available here), strikes me as the most consequential because it reverses a below-guideline sentence as substantively unreasonable in an opinion that starts this way:
Rufus Robinson pled guilty to knowingly possessing over 7100 images of child pornography on his computer. Some of the images involved the bondage, torture, and rape of prepubescent children. Under the Sentencing Guidelines, Robinson’s recommended sentence was 78 to 97 months’ imprisonment. The district court rejected that recommendation and imposed a sentence of one day in custody, a term of supervised release of five years, and a $100 special assessment. The United States contends that Robinson’s sentence is both procedurally and substantively unreasonable. We agree that the sentence is substantively unreasonable, and vacate his sentence.
US v. Cunningham, No. 10-3092 (6th Cir. Feb. 24, 2012) (available here), covers some similar ground in the course of affirming a (within-guideline) sentence in an opinion that begins this way:
Defendant Thomas Cunningham appeals the district court’s judgment sentencing him to concurrent prison terms of 121 months and 120 months after he pleaded guilty to three child pornography offenses, in violation of 18 U.S.C. §§ 2252(a)(2), 2252A(a)(2), and 2252A(a)(5)(B). Defendant raises assignments of error with several procedural and substantive aspects of the district court’s sentence. Because the district court’s imposition of Defendant’s sentence was comprehensive and legally sufficient, we AFFIRM.
US v. Ferguson, No. 10-3070 (6th Cir. Feb. 27, 2012) (available here), involves a similar defendant convicted and sentenced for child porn possession, but the sentencing issues raised (and deemed waived) on appeal concerned conditions of supervised release (perhaps because the defendant worked out a plea deal in which he got only a 30-month sentence for his kiddie porn offenses).
There is so much that might be said individually about each of these cases and what they reveal about the child porn guidelines and/or appellate review for reasonableness. But I find most remarkable that these opinion create the impression that defendant Cunningham may have been the most mitigated of these three offenders, even though he had the highest guideline range (121-151 months) and received the longest prison term (121 months).
Based on points discussed by the Sixth Circuit, defendant Robinson arguably is a much more serious offender than defendant Cunningham, but he faced a much lower guideline range (78-97 months) which means that, even after today's reversal of his one-day prison sentence, on resentencing defendant Robinson is still very likely to get a much shorter prison sentence than defendant Cunningham.
Finally, because defendant Ferguson's lawyer was apparently able to put together a sweet plea deal, defendant Ferguson is now likely already out of federal prison even though there are facts set forth in his case which might suggest he could well pose more danger to the public than the others. I am not sure just how or why 30 months was set at the fixed sentence in his case, but the outcome even on appeal provides further proof that "winning" sentencing arguments at the plea bargain stage may prove much more important and even more enduring in these cases than "winning" at the sentencing stage.
Short summary: sentencing in kiddie porn downloading cases are even more of a mess than one can reasonably assess.
February 27, 2012 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (21) | TrackBack
Monday, February 20, 2012
Brief reflections on federal sentencing policy, practice and politics after USSC hearings
I have many intricate "micro" observations about last week's two US Sentencing Commission hearings, but I fear I will not soon be able to find time to write up (m)any of them for this space. But I think I can quickly here articulate and briefly explain my "macro" take away from both hearings: federal sentencing laws and their prospects for reform still suffer greatly from (and may always suffer from?) harmful disconnects between sound sentencing policies and practices and sound-bite sentencing politics. Let me (too briefly) explain what I mean:
1. There was a rough consensus from the written testimony submitted on the first hearing day concerning penalties for child pornography offenses (still available via links in this official agenda) that, as a matter of policy and practice, federal sentencing law in this area is functioning quite poorly. (This is hardly surprising: the potential dysfunction of the existing CP guidelines has been stressed by courts and commentators for many years now.) But I suspect and fear it will prove very challenging for the US Sentencing Commission or the Justice Department to engineer any quick and/or sound fix because the sound-bite politics of this issue make it almost impossible to propose lower sentences for anyone who downloads kiddie porn, even the most mitigated of offenders who already faces many years in prison under existing law. (This is the same sad political reality that prevented any real change to the 100-1 crack/powder ratio for more than a decade after essentially everyone agreed that ratio was terribly misguided and racially unjust.)
2. There was a rough consensus, at least coming from all the judges, prosecutors, defense attorneys and public policy groups (whose written testimony is still linked via this official agenda here), that the broader post-Booker sentencing structure is, as a matter of policy and practice, functioning reasonably well all things considerd. But I suspect and fear the US Sentencing Commission and the Justice Department will feel very pressured to urge fixes to the post-Booker system because powerful Republican voices in Congress seem to relish the sound-bite politics of complaining about the possible unwarranted and/or racial disparities in federal sentencing. (But, tellingly, these same Republican voices were often disturbingly silent for years concerning proposed crack sentence reductions that the USSC long said were clearly needed to reduce unwarranted and racial sentencing disparities.)
3. Rigorous quantitative analysis of the post-Booker sentencing system done by both the US Sentencing Commission and outside researchers are already playing a large role in the policy and political debates. But I fear that even the best quantitative research (like the Commission's own data runs) too often fails to break down categories of cases/regions for analysis in order to assess the impact of sets of outliers. For example, the case-processing data differences in the CP cases and the larceny cases are profound in all sorts of ways, as are the difference in even the three judicial districts of North Carolina, but so much of the research and reporting necessarily has to lump many of these "local" stories together. For this reason (and many others), I think the USSC and outside researchers ought to be devoting a lot more time to sophisticated qualitative research with a focus on particularly important "local" stories.
I could go on (and may in future posts), but for now I hope lots of thoughtful folks — whether following the USSC hearing closely or not — will share comments on my numbered observations above OR more generally about what they see in the future for federal sentencing reform debates.
Some recent related posts:
- Fascinating DOJ testimony to US Sentencing Commission about child porn sentencing
- Highlights from DOJ testimony to US Sentencing Commission about federal sentencing concerns
- "Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences"
- New paper say there "is no need for a 'Booker fix'; Booker is the fix"
- In DC for event on "The Relevancy and Reach of the U.S. Sentencing Commission"
- NPR covers latest debates over post-Booker federal sentencing systems
- Two big public hearings on tap for US Sentencing Commission next week
February 20, 2012 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack
Sunday, February 12, 2012
Timely discussion of federal judicial concerns with guideline sentences for kiddie porn downloaders
Today's Boston Globe has this notable article on a controversial component of the federal sentencing guidelines. The piece is headlined "US judges balk at rigid child porn sentences; Say guidelines often demand punishment beyond severity of crime." Here are excerpts:
In 2010, federal judges deviated below sentencing guidelines in child pornography cases 43 percent of the time, compared with 18 percent for all other crimes, according to data from the US Sentencing Commission, the agency that Congress established to set the guidelines....
Just last month, a federal court judge in Boston sentenced a Dedham man to 21 months in prison for possession of child pornography -- far lower than the 63 months he faced under sentencing guidelines, and even lower than the 30 months prosecutors had recommended as part of a plea deal. The judge who pronounced the sentence was US District Court Judge Patti B. Saris, who also happens to chair the Sentencing Commission. “As far as I’m concerned, there are some problems with the guidelines," she said in open court in issuing the sentence.
In another example, US District Court Judge Michael A. Ponsor sentenced a man in 2010 in Springfield to four years of probation, though prosecutors asked that he serve the 6-to-8-year sentence called for by the guidelines.
The judges’ persistent departure from the guidelines for child pornography offenses has caused such a stir that the US Sentencing Commission has agreed to examine them again, listing the endeavor as a priority. A public hearing is set for Feb. 15 in Washington....
Prosecutors acknowledge that the guidelines should be reconfigured to better reflect a defendant’s culpability. But they maintain that any changes to how the guidelines are calculated should not affect the actual scale of the sentences. They say Congress -- and society -- have called for the toughened penalties for the crime.
“There’s been recognition nationwide that there’s been an epidemic," said James Lang, chief of the criminal division for the US attorney’s office in Massachusetts. “There is an exploitation [of children] that goes on every time those photos are shared."
Congress has been so aggressive in its efforts to toughen child pornography sentencing guidelines over the last decade that it overrode the Sentencing Commission’s edicts for the first time in its history, in 2003. The changes effectively doubled what the average sentence for possession of child pornography had been in the two previous years, according to a Sentence Commission study, from 28 to 54 months.
But within the legal community, there has since been a growing chorus of criticism from those who say the punishment is too great, even for such a universally reviled crime. “The sentences are excessive, and the issue is one that could be modified," said former US senator Arlen Specter of Pennsylvania, who has also served as a prosecutor. He co-authored a journal in a law trade magazine in October calling for sentencing reforms. “It’s important to justice. But it’s hard to do, because child pornography is so highly emotional."...
Opponents of the guideline argue that the additional penalties -- known as enhancements -- are inherent factors in the crime, and unfairly increase the guidelines. The guidelines, for instance, call for additional penalties if a computer was used in the crime, and for a further enhancement if the child depicted in the images is prepubescent or under 12 years old -- factors that exist in more than 90 percent of the cases, according to Sentencing Commission data. Also, anyone using a file-sharing network could fall under the distribution category because their images are open to anyone, even if they do not purposely send them out.
With added enhancements for sadistic or violent images, and for increased penalties when more pictures are involved, a defendant could face a sentence of 20 years in prison for receiving child pornography -- higher than guidelines for crimes involving use of a gun or physical violence or abuse.
Federal prosecutors defend the length of prison time, arguing that it protects the young children who are the victims in such cases. Lang acknowledged that the sentencing enhancements should be reconfigured to reflect the way the crime is carried out. A defendant should face tougher penalties for running a chat group, rather than simply being involved in the chats, for instance. Defendants should also face tougher sentences according to the ages of the victims in the photos.
Prosecutors argue that the public, and judges, should make no distinction between those who possess pictures and those who produce them, pointing to a case out of Milford in which the discovery of child pornography images led to the prosecution of an international child porn production ring. More than 100 young children have been identified and removed from dangerous environments, according to prosecutors.
This companion piece in the Globe reports on a number of cases in which child porn offenders received sentences well below applicable guideline ranges. As noted in the main article, the US Sentencing Commission has a big public hearing scheduled for this coming Wednesday to discuss these and related issues concerning the child porn guidelines. I am especially interest to see what the Justice Department says to the USSC about these matters and how the guidelines might be modified to foster more judicial respect for the sentences recommended in these cases.
Wednesday, February 08, 2012
Two big public hearings on tap for US Sentencing Commission next week
The first day of hearings, slated for February 15 (with the official agenda here), is "for the Commission to gather testimony from invited witnesses regarding the issue of penalties for child pornography offenses in federal sentencing." The second day of hearings, slated for February 16 (with the official agenda here), is "for the Commission to gather testimony from invited witnesses on federal sentencing options pursuant to United States v. Booker."
I have the great honor and privilege of being one of the invited witnesses for the second day of these hearings, and I hope to post my written testimony once I finish writing it. I also expect the USSC will post the submitted written testimony of other witnesses before long, too. In the meantime, readers are welcome (and, in fact, encouraged) to make predictions about what various witnesses are likely to say to the Commission on these topics and what member os the USSC might say in response.
Friday, February 03, 2012
Seventh Circuit reminds federal sentencing judge of obligation to judge at federal sentencing
The Seventh Circuit handed down an intriguing little panel opinion resolving a sentencing appeal yesterday in US v. Pennington, No. 11-1257 (7th Cir. Feb. 2, 2012) (available here). Here is how the opinion in Pennington gets started:
Richie Pennington pleaded guilty to selling a firearm to a felon, distributing ecstasy, and possessing a firearm in furtherance of a drug-trafficking crime. The government recommended a 68-month sentence, the bottom of the applicable sentencing-guidelines range. Pennington argued that 64 months was enough. The judge rejected Pennington’s argument because the four-month difference between the sentencing recommendations was so little. He added that although the sentencing guidelines are not binding, “judges are told that [they] are to be followed.” The judge imposed the 68-month sentence suggested by the government. Pennington appeals, challenging the procedure the judge used to reach that decision.
We vacate the sentence and remand for resentencing. The judge appears to have rejected Pennington’s request for a modest below-guidelines sentence simply because it was modest and below the guidelines. There may have been other reasons why he did so, but as it stands, we cannot be sure the judge gave adequate consideration to Pennington’s argument.
Among other virtues, the court's opinion in Pennington has this nice passage discussing one of my favorite parts of 3553(a):
The first explanation about the negligible difference between the parties’ sentencing recommendations is troublesome for a couple of reasons. To begin, the so-called parsimony provision of § 3553(a) requires that judges “impose a sentence sufficient, but not greater than necessary” to serve the purposes of sentencing. The judge need not expressly refer to that provision at sentencing, Abebe, 651 F.3d at 656, but his explanation of the sentence must be consistent with its meaning, see Johnson, 635 F.3d at 988 n.1 (collecting cases). By characterizing the difference between the recommended sentences as “de minimis,” the judge implicitly accepted that 64 months was sufficient to serve the purposes of sentencing. If so, the parsimony principle would ordinarily require the more lenient sentence.
Wednesday, January 18, 2012
Should donating lots and lots of blood justify a below-guideline federal sentence?
The question in the title of this post is prompted by this article discussing federal filings in the run-up to the sentencing of a local Pennsylvania politician convicted of multiple corruption charges. Here are the details:
Federal prosecutors asked a federal judge Tuesday to reject pleas for leniency from former Lackawanna County Commissioner A.J. Munchak, who claims his years of donating blood and other charitable acts should spare him from what could be a life prison sentence.
Mr. Munchak and his fellow former majority county Commissioner Robert C. Cordaro are scheduled to be sentenced Jan. 30 for their conviction on bribery and extortion charges stemming from kickback schemes and illegal cash payments they pocketed while in office.
Mr. Munchak's lawyer, Chris Powell of Scranton, had argued Mr. Munchak deserved a break from a possible sentence of decades in prison based on his "extraordinary charitable, civil and community service" to various organizations, notably the Red Cross, and clubs over the years.
Federal prosecutors disagreed, saying Mr. Munchak "does not elaborate what, if anything, he did for those organizations." The prosecutors added, "his assertion that he has 'given a total of 236 years in services to his community, church and charitable organizations' is unsupported and incomprehensible."...
In an eight-page brief, the prosecutors also seized on Mr. Munchak's references to his "years long practice of donating blood at regular intervals."
"He notes that he has donated approximately 180 pints of blood to the American Red Cross," the prosecutors said. Years of regular blood donation is exceptional to the Red Cross, the prosecutors stated in court papers, summarizing testimony from a Red Cross representative at a court hearing.
The prosecutors described Mr. Munchak's "exceptional" Red Cross blood donations as the legal equivalent of mixing apples and oranges. "What is extraordinary to the Red Cross and what is extraordinary under the U.S. Sentencing Guidelines are entirely different concepts," the prosecutors said. "... the act of donating blood is a relatively brief, non-interactive event and does not constitute a good work of such magnitude to warrant a downward departure," the prosecutors said, adding, "..the regular donation of blood is an impersonal and detached act ..."
Monday, January 09, 2012
Sixth Circuit finds substantively unreasonable a one-day of lock-up for child porn downloading
An interesting and potentially important reasonableness review decision was handed down by a Sixth Circuit panel this morning in US v. Bistline, No. 10-3106 (6th Cir. Jan. 9, 2012) (available here). Folks concerned with the operation of reasonableness review or with child porn sentencing should be sure to read this thoughtful opinion in full. Here is how the opinion gets started along with one of many notable passages from the heart of the opinion:
Richard Bistline pled guilty to knowingly possessing 305 images and 56 videos of child pornography on his computer. Many, if not a majority, of those images and videos depicted 8- to 10-year-old girls being raped by adult men. Under the Sentencing Guidelines, Bistline’s recommended sentence was 63 to 78 months’ imprisonment. The district court rejected that recommendation and instead sentenced Bistline to a single night’s confinement in the courthouse lockup, plus ten years’ supervised release. The United States contends that Bistline’s sentence is substantively unreasonable, arguing that the district court improperly rejected the relevant sentencing guideline as “seriously flawed” and that Bistline’s sentence fails to reflect the factors recited in the sentencing statute. We agree, and vacate his sentence....
The district court made a number of observations with respect to the seriousness of this offense. Many of them served to diminish it. The court did say that the images on Bistline’s computer were “horrendous,” and that the “production of child pornography and the distribution of it is an extremely serious offense, one which should be punished accordingly.” But notably omitted from that recitation (and virtually unpunished in this case) was the crime of possession of child pornography. Indeed, the court said there are “significant differences . . . in the degree of culpability in the chain of events that leads to the display of child pornography[,]” with the “most culpable” persons being “those who are involved in actually performing these acts and photographing them.” We agree with that statement so far as it goes. That the producers of child pornography are more culpable, however, does not mean that its knowing and deliberate possessors are barely culpable at all.
Thursday, December 08, 2011
Split Eighth Circuit panel affirms 10-year-max sentence despite guidelines range of 0 to 6 months
Today brings a fascinating split sentencing decision from the Eighth Circuit in US v. Richart, No. 10-1167 (8th Cir. Dec. 8, 2011) (available here). The majority opinion starts this way:
After a jury found Wanda Richart guilty of one count of conspiracy to make a false statement in violation of 18 U.S.C. § 371 and one count of making a false statement in violation of 18 U.S.C. § 1001, the district court sentenced her to sixty months' imprisonment on each count, to be served consecutively, and three years' supervised release. Richart appeals her sentence, arguing that the district court committed procedural error in imposing a two-level adjustment for her role in the offense, in imposing an upward departure, and in running the two sentences consecutive to each other. Richart also contends that the district court abused its discretion by imposing a substantively unreasonable sentence and by imposing special conditions of supervised release. For the reasons stated below, we affirm.
Though this starting description from the majority does not make the Richart case sound too exciting, these passages from the start of Judge Bye's dissent highlight why the Richart decision makes for an intersting read:
The district court here varied upward from the 0 to 6 months Guideline range and sentenced Richart to 120 months’ imprisonment—the statutory maximum—for making, and conspiring to make, false statements to an FBI agent....
The record demonstrates the district court’s decision to vary upward from the 0 to 6 months Guideline range, and impose a 120-month sentence, rested largely, if not exclusively, on the court’s desire to correct what it perceived to be an inadequate state sentence for Richart’s second-degree murder conviction. Specifically, the court gave significant weight to the nature of Richart’s state conviction, the length of her state sentence, and the uncertain amount of time she would actually serve in state prison.
December 8, 2011 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (19) | TrackBack
Wednesday, December 07, 2011
"Ex-Gov. Rod Blagojevich sentenced to 14 years"
The title of this post is the headline of this local story reporting on the outcome of the highest-profile federal sentencing proceeding in recent months. Here is how the piece starts:
Disgraced former Gov. Rod Blagojevich was sentenced Wednesday to 14 years in prison after he made a final plea for leniency, acknowledging his guilt and saying, “I am unbelievably sorry.”
“I believe he did, in fact, accept [responsibility],” U.S. District Judge James Zagel said in announcing how long Blagojevich should spend in prison after being convicted of 18 corruption charges that included attempting to sell or trade an appointment to fill the U.S. Senate seat left vacant by the election of President Barack Obama.
But the judge said the entire state suffered from his actions. “When it is the governor who goes bad, the fabric of Illinois is torn and disfigured and not easily or quickly repaired,” Zagel said. “You did that damage.”
Blagojevich slightly sunk his head after the sentence was read. Wife Patti put her hand up to her mouth, but did not cry, as she has done in previous hearings. Blagojevich walked up to her and asked, “You OK? Stay strong.” After court was over, the two embraced in the courtroom and she buried her head in his chest.
Blagojevich will have to surrender Feb. 16. Under federal sentencing rules, Blagojevich will have to serve 85 percent of his sentence, or just under 12 years in prison, at a minimum. The ex-governor turns 55 on Saturday.
In deciding the sentence, the judge said he had given credit to Blagojevich for accepting responsibility for his crimes in remarks made Wednesday morning. “It’s clear he is not blaming” the people around him, said Zagel, adding that he also gave Blagojevich credit for his work on behalf of children while governor in creating the state’s All Kids health-care program.
Referring to comments from Blagojevich’s lawyers in asking for a sentence of no more than 3½ years, Zagel said: “I don’t doubt his devotion to children, but this is not ... exceptional, in my own experience. I see case after case where good fathers are bad citizens. There is no question that the innocent children of felons suffer. This is tragic, but, as he admits, the fault of this lies with the defendant alone. Now, it is too late. “If it is any consolation to his children, he does not stand convicted of being a bad father.”
But Zagel noted the damage caused by Blagojevich “is not measured in the value of money and property. The harm is the erosion of the public trust in government; [people’s] confidence in and trust in government.”
UPDATE: This press release from the US Attorney's Office for the Northern District of Illinois provides a bit of (curious?) explanation for the application of the guidelines by Judge Zagel:
During the sentencing hearing, Judge Zagel agreed with the government that the properly calculated advisory federal sentencing guidelines provided for a sentencing range of 30 years to life. He also agreed with the government that the range was not appropriate within the context of this case, and found an “effective” guideline range of 188 to 235 months in prison, which was proximate to the government’s recommended sentence of 15 to 20 years. The judge further reduced the range to 151 to 188 months after finding that Blagojevich accepted responsibility for his crimes at sentencing.
I hope through future media coverage of this case that I come to better understand just how and why Judge Zagel "agreed with the government that the [30 year to life calculated guideline] range was not appropriate within the context of this case, and found an 'effective' guideline range of 188 to 235 months in prison." Specifically, I wonder (1) if Judge Zagel formally justified this decision on a "traditional" departure ground or on 3553(a) variance concepts (or both), and (2) just how Judge Zagel decided to move down six offense levels on the USSG Sentencing Table in order to settle on the range of 151 to 188 months.
I also find notable and interesting that, after giving Blago this six-level downward adjustment under the guidelines AND giving him an extra two-point reduction by giving him (surprising?) credit for acceptance of responsibility, Judge Zagel than decided he should give Blago a sentence in the middle of the then-applicable guideline range. (For those of you math-challenged like me, I used a calculator to figure out that a 14-year sentence equals 168 months.)
Wednesday, November 23, 2011
"Rezko gets 10.5-year sentence; 'Enough is enough,' says judge in ruling that may bode ill for Blagojevich"
The title of this post is the headline of this Chicago Tribune article reporting on a high-profile sentencing that took place in a federal district court on Tuesday. The article gets started this way:
Even before Antoin "Tony" Rezko's long-awaited sentencing began Tuesday, his teenage daughter appeared anxious, her arms clutching her stomach and her face already in a pained expression. Two hours later, when a judge sentenced Rezko, once a top adviser to former Gov. Rod Blagojevich, to 10.5 years in prison, his daughter, Chanelle, broke down in sobs and collapsed into her mother's arms.
The sentence — one of the toughest ever handed out in the Dirksen U.S. Courthouse for a public corruption conviction — would appear to be bad news for Blagojevich, who is scheduled to be sentenced in two weeks by a different judge.
"Blagojevich could not have been happy when he heard the prison time that Rezko will serve," said former federal prosecutor Jeffrey Cramer. "He could reasonably get 12 to 15 years in prison."
About 40 relatives and friends attended Rezko's sentencing to show their support. At times during the hearing, some bowed their heads or placed their hands over their hearts.
In brief comments to U.S. District Court Judge Amy St. Eve, Rezko apologized and spoke of the guilt and shame he felt for what he has put his family through. "I come to ask for God's forgiveness and the court's mercy," said a pale and thin Rezko.
But St. Eve was not swayed, saying that "the sentence will send a message that enough is enough."
Rezko, 56, made a name for himself as a powerful insider and fundraiser, earning a position as one of Blagojevich's top advisers and confidants from early in his administration. He had a knack for cultivating up-and-coming politicians, including state Sen. Barack Obama, who would become president.
Prosecutors portrayed Rezko as a key member of Blagojevich's "kitchen cabinet" who exercised influence over the appointments made by the governor to state boards and commissions. In return, he expected campaign contributions to be made to Blagojevich, the government alleged.
A jury convicted him in 2008 of using his clout with Blagojevich and scheming with Stuart Levine, a longtime Republican political insider, to extort millions of dollars from firms that were seeking state business or regulatory approval.
Thursday, November 17, 2011
"Post-Booker Judicial Discretion and Sentencing Trends in Criminal Intellectual Property Cases: Empirical Analysis and Societal Implications"
The title of this post is the title of this new piece on SSRN authored by Aaron B. Rabinowitz. Here is the abstract:
As a result of the Supreme Court’s 2005 decision in Booker v. United States that rendered the United States Sentencing Commission’s Sentencing Guidelines non-mandatory, district courts now enjoy significant discretion in determining the appropriate sentence for convicted offenders and can. Based on data for federal sentencing cases from 1997-2011, this article presents an empirical analysis of how the Booker decision has changed the way in which district courts imposes sentences on offenders convicted of intellectual property crimes, as well as a discussion of how sentences imposed on intellectual property offenders reflect more societal views of intellectual property crimes in general.
The empirical analysis reveals, inter alia, that sentences imposed on intellectual property offenders deviate from the advisory Guidelines in two out of every three cases; prosecutors seek and judges reduce sentences for intellectual property crimes more frequently than for other comparable crimes; and judge-initiated deviations occur after Booker about twice as frequently for intellectual property offenders than for other offenders, whereas such judge-initiated deviations before Booker occurred less frequently than for crimes in general or for other economic crimes. These findings suggest that prosecutors’ and judges’ views of intellectual property crimes do not align with the sentences prescribed by the Guidelines for intellectual property crimes, and this article accordingly proposes solutions for harmonizing the advisory Guidelines sentences for intellectual property offenders with the sentences that are actually being imposed based on prosecutors’ and judges’ discretion.
November 17, 2011 in Booker in district courts, Data on sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Monday, November 07, 2011
Tenth Circuit elaborates on authority to vary from guidelines based on fast-track disparity
A Tenth Circuit panel has today issued a details opinion discussion a district court's authority to vary from the guidelines based on fast-track disparities. The opinion in US v. Lopez-Macias, No. 10-1494 (10th Cir. Nov. 7, 2011) (available here), gets started this way:
In the 1990s, federal prosecutors handling large numbers of illegal re-entry and other immigration offenses developed early disposition or “fast-track” programs in states along the United States border with Mexico. In 2003, Congress endorsed such programs, apparently for border districts and elsewhere, in a broadly-worded provision of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”). Pub. L. No. 108-21, 117 Stat. 650 (2003). Congress specifically instructed the United States Sentencing Commission to promulgate “a policy statement authorizing a downward departure of not more than 4 levels if the Government files a motion for such departure pursuant to an early disposition program authorized by the Attorney General and the United States Attorney.” Pub. L. No. 108-21, § 401(m), 117 Stat. at 675. In response, the Sentencing Commission promulgated U.S.S.G. § 5K3.1: “Upon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the [Attorney General] and the United States Attorney for the district in which the court resides.”
This sentencing appeal presents us with two questions related to the presence of fast-track programs in some federal districts, but not others. The first question is whether a sentencing court in a non-fast-track district has the discretion to consider sentence disparities caused by the existence of fast-track programs in other districts, and, based thereon, vary from the applicable guideline range for a defendant charged with an immigration offense. If so, the second issue is whether the apparently nebulous eligibility requirements for fast-track programs relieve a defendant charged with an immigration offense in a non-fast-track district of the burden of showing entitlement, at least in some sense, to sentencing consistent with a fast-track program. We hold that (1) where the circumstances warrant, a district court in a non-fast-track district has the discretion to vary from a defendant’s applicable guideline range based on fast-track sentence disparities, but (2) a defendant bears the initial burden of showing entitlement, in some sense, to a variance based on fast-track sentence disparities. Given the facts presented here, however, we need not now decide the precise extent of a defendant’s burden.
"Guidelines Gone Awry"
The title of this post is the headline of this notable new commentary by Alan Vinegrad and Jason Levine. It appears in today's New York Law Journal and gets started this way:
On Oct. 12, the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security held its first hearing on federal sentencing since March 2006. The title — "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years After U.S. v. Booker" — apparently reflects the subcommittee majority's views on post-Booker1 sentencing. Representative James Sensenbrenner, chairman of the subcommittee, stated that he is "deeply concerned" with federal sentencing due to the "increasing frequency of downward departures." Those who commit child pornography or fraud offenses "are in luck," he added, explaining that these crimes have seen particularly high rates of below-guideline sentences.
Proposals to address these concerns have run the gamut. One witness recommended that the Sentencing Reform Act be repealed and the Sentencing Commission abolished. Another proposed that sentencing guidelines once again be presumptively applicable, circumventing Booker by relying on juries to make findings on aggravating factors. And Judge Patti Saris, chair of the Sentencing Commission and Massachusetts district judge, testified about the problems sentencing courts have encountered in the post-Booker sentencing regime and recommended a more robust system of appellate review.
The commission's proposals, although understandable, did not address the real culprit — the guidelines themselves. In several areas, the guidelines, primarily as a result of congressional directives, no longer fairly reflect the varied purposes for which they were created.
Some recent related posts about the House Booker hearing:
- Witnesses identified for House hearing on post-Booker federal sentencing
- Webcast of House hearing on federal sentencing after Booker available
- "Should sentences reflect the will of the public?"
- "Should the USSC publish sentencing data for individual judges?"
- Early reactions to the (too) quick House hearing on post-Booker sentencing
Wednesday, October 19, 2011
Feds want a lot more prison time for corrupt state pol Vincent Fumo
Sentencing briefs for the upcoming resentencing of former Pennsylvania State Senator Vince Fumo were filed yesterday. Comically, as detailed below, the headlines from various news sources reporting on the filings indicate quite different sentences purportedly being sought by federal prosecutors:
From the Philadelphia Inquirer here, "Prosecutors want Fumo jailed for 15 years"
From Newsworks here, "Prosecutors: Fumo should get at least 17 years for 'astonishing' corruption"
From the Philadelphia Daily News here, "Feds: Fumo should serve up to 21 years"
From Reuters here, "Former Pa. politician should serve up to 27 years: prosecutors"
Here is how the first of these pieces gets started:
Prosecutors Tuesday urged a federal judge to resentence former State Sen. Vincent J. Fumo to at least 15 years in prison, more than triple his current penalty, to properly punish him for "detestable" crimes that cost taxpayers and charities $4 million.
But in a rival filing, Fumo's defense team urged U.S. District Judge Ronald L. Buckwalter to simply reinstate the controversial 55-month sentence he imposed two years ago. They said Buckwalter should again grant Fumo a break for what the lawyers called his "extraordinary level" of public service, as well as for private acts of generosity. His attorneys described the 68-year-old Fumo as in poor health, facing the "real chance" of dying in prison, yet still mentoring fellow inmates.
In August, the U.S. Court of Appeals for the Third Circuit ordered Buckwalter to resentence Fumo. Without specifying what new sentence should be imposed, it said Buckwalter's legal reasoning had been shot through with errors, including a badly underestimated figure for the cost of Fumo's crimes. Buckwalter is to decide after a resentencing hearing Nov. 9.
October 19, 2011 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
Thursday, October 13, 2011
Additional written testimony submitted at House Booker hearing
At the tail end of yesterday's hearing of the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee, titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," the members of the committee entered into the record submitted written testimony submitted by some public policy groups. I hope to be able to provide links to all this submitted testimony, and already available at this link is testimony authored by Testimony of Mary Price, the Vice President and General Counsel of Families Against Mandatory Minimums (FAMM). I believe a number of defense groups also submitted testimony, which I will post if/when I can find it.
UPDATE: Here is a link to testimony from the ACLU submitted to the house subcommittee.
Some recent related posts about the House hearing:
- Witnesses identified for House hearing on post-Booker federal sentencing
- Webcast of House hearing on federal sentencing after Booker available
- "Should sentences reflect the will of the public?"
- "Should the USSC publish sentencing data for individual judges?"
- Early reactions to the (too) quick House hearing on post-Booker sentencing
October 13, 2011 in Advisory Sentencing Guidelines, Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack
Wednesday, October 12, 2011
Early reactions to the (too) quick House hearing on post-Booker sentencing
Less than two hours after it started, today's hearing of the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee, titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," has come to a close. As detailed in prior posts linked below, a lot happened in the 100 minutes of this hearing, though I seriously doubt that much is going to happen legislatively as a result of what just transpired. Without too much reflection, here are a few quick reactions:
1. There is clearly lots of bad blood among members of this subcommittee as reflected in a shouting match that broke out between Rep. Jackson Lee and Rep. Sensenbrenner
2. Other than a precious few members, it is not obvious that many even on this subcommittee care too much about this subject. Only about one-quearter of the 20 members of the subcommittee appeared to be in attendance and only a precious few asked questions suggesting they even understood how modern federal sentencing works.
3. The absence of a Justice Department representative was both telling and disappointing, especially because it is very hard to predict how federal prosecutors would view proposals to abolish the US Sentencing Commission or to have a Blakely-compliant mandatory guideline system.
4. The USSC's apparent recommendations to Congress to give reasonableness review more bite via statutory reform is very sound and very important and very constitutionally challenging, all of which in turn leads me to predict/fear that it is very unlikely to happen anytime soon.
5. A lot of worrisome "smaller" federal sentencing issues that could benefit most from congressional oversight and legislative reform — the application of the Armed Career Criminal Act, child porn victim restitution awards, fast-track departures, the persistent growth of the federal criminal docket — did not even get mentioned.
6. We desparately still need refined and consistent nomenclature to describe different potential kinds of federal guideline systems other than just advisory, presumptive and mandatory. I especially urge readers to help me come up with a labels other than "presumptive" to describe the kind of revised advisory guideline systems — advisory with bite? advisory with great weight? — to describe what the USSC now seems to be advocating Congress to enact.
I could go on and on and on, but I have now said more than enough and need to get off the grid for awhile just to make sure my head does not explode as I have flash-backs from some of the worst moments of this morning's House hearing.
Some recent related posts about the House hearing:
- Witnesses identified for House hearing on post-Booker federal sentencing
- Webcast of House hearing on federal sentencing after Booker available
- "Should sentences reflect the will of the public?"
- "Should the USSC publish sentencing data for individual judges?"
Webcast of House hearing on federal sentencing after Booker available
As reported in this prior post, this morning the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee is conducting a hearing to examine the post-Booker federal sentencing system. The hearing is titled "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker," and a webcast can be accessed via this calender entry [Update: Written testimony from the witnesses are now linked here]. I will do a little live-blogging as I follow along.
10:04: Rep. James Sensenbrenner (R-WI) has begun the hearing and is reading a prepared statement in which he complains at great length about sentencing disparities and says that Booker, in his view, "destroyed the guidelines." He is also complaining that the US Sentencing Commission has not proposed a "Booker fix" in the last six years, and also complaining about the USSC making its new lower crack guidelines retroactive, and also complaining about the USSC's operating budget going up.
10:06: Rep. Bobby Scott (D-VA) has begun his opening statement and says that Booker was the fix, not something that needs fixing. He also is noting that the number of judicial variances from the guidelines went down in the last quarter of FY11 and that prosecutors sponsor and/or do not object to the vast majority of non-guideline sentences.
10:10: Rep. John Conyers (D-MI) says a few things off the cuff that do little more than make Rick Perry seem eloquent by comparison.
10:20: USSC Chair Judge Patti Saris (very detailed written testimony here) begins witness testimony by stressing how Supreme Court Booker caselaw has impacted federal sentencing. She says the guidelines exert a "demonstrable gravitation pull" on sentencing, but also says that USSC recognizes "weaknesses" in the advisory guideline system. Chair Saris says USSC recommends these legislative changes by Congress:
- Congress should make reasonableness review tougher, especially for non-guideline sentences
- Congress should clarify statutory directives that are in tension
- Congress should clarify and codify that guidelines should be given substantial weight
Saris also indicates that three reports are forthcoming from the USSC: one on mandatory minimums, one on child porn sentencing, and one based on the testimony offered today about the post-Booker system.
10:26: Matthew Miner, White & Case partner (written testimony here), begins his testimony by stressing disparities between sentencing outcomes in Southern and Northern districts of New York. He urges a "presumptively applicable" guideline system and recognizes that this system needs to comply with Apprendi/Blakely rights and says that it should not be too hard for juries to make special sentencing-related findings. Paraphrasing: "If we can trust juries to make findings in death penalty cases, we can trust them to find aggravating factors for guideline sentencing." As a first step, making reasonableness review tougher would be a modest reform that would "go a long way" to reducing disparity.
10:31: William Otis, Georgetown Professor Law (written testimony here), begins his testimony by stressing importance of being a nation of laws, but says sentencing is now not a system of law but "a lottery." He notes that downward departures, which "favor the criminal," are 20 times more common than upward departures. He complains that the USSC has "compounded the problem" of Booker by encouraging departures based on offender characteristics, and that it has embraced a system that is "random and watered-down."
10:36: James Felman, Kynes, Markman & Felman partner (written testimony here), begins his testimony by saying advisory sentencing system "best achieves" the goals of Sentencing Reform Act. He stresses that sentences have not gone down since Booker in fraud and child porn cases, but rather have gone up greatly since Booker. Says Mr. Otis is "incorrect" that the recent trend show continued movement away from guidelines, and he also notes that departures and variances from guidelines are modest.
I will cover follow-up Q & A in a separate post...
Sunday, October 09, 2011
New AP article perpetuates notion (myth?) that federal sentencing is still about luck of the draw
This new AP article, which provides a partial preview of an upcoming high-profile white-collar federal sentencing, has a headline and a theme that suggests that luck of the judicial draw matters more than anything else in modern federals sentencing. The piece is headlined "Sentencing is a wildcard in busy NYC courthouse," and here are excerpts:
The prison term awaiting a one-time billionaire hedge fund founder convicted of insider trading charges is unpredictable at best in a Manhattan courthouse where judges vary considerably in their assessment of how justice should be dispersed at sentencing.
Raj Rajaratnam, 54, is scheduled to be sentenced Thursday for his conviction at trial earlier this year. If federal prosecutors have their way, he'll get between 19½ and 24½ years in prison for what they say were more than $72 million in profits for himself and his Galleon Group of hedge funds. If defense lawyers are persuasive, he'll face between 6½ and 9 years for what they say was about $7 million in illegal profits.
Regardless of the outcome, his fate may have been decided when Judge Richard J. Holwell was selected to hear the case after the Sri Lanka-born Rajaratnam's October 2009 arrest.
"Welcome to the Southern District of New York," said Rita Glavin, a former federal prosecutor who leads the white-collar crime unit at the Manhattan law firm of Vinson & Elkins. "The judge you are assigned to is critical," Glavin said. "Having been on the prosecution side, there were certain judges from a government perspective you loved being in front of whether for trial, sentencing or evidentiary issues. Now that I've moved to the defense side, it's not necessarily the same judges."...
The tone and result in sentencings have varied widely for those charged in the case against Rajaratnam and two dozen co-defendants, all of whom have been convicted, most as a result of guilty pleas. Most of the sentencings have resulted in prison terms ranging from a few months to a few years. Besides the sentencing guidelines, judges are supposed to take into account various other factors, including the defendant's personal history and the need to deter others from committing similar crimes.
The longest sentence handed down — 10 years — came from a stern Judge Richard Sullivan, who last month dispensed some finger-wagging words toward Zvi Goffer immediately after telling him that he viewed Goffer's sentencing as "a tragic day," not a day "for lecturing or finger wagging or table pounding."
He told Goffer that he had a gambler's mentality after his arrest. "You decided to double down and gamble on a trial," Sullivan said, adding that Goffer acknowledged his crimes post-trial. "Had you made that acknowledgement before trial, you might have shaved almost three years off your guideline's sentence," he said as he gave him a sentence near the lower end of the guideline's range.... He added: "I am not saying you are going to be punished for going to trial, but there are consequences that flow from that. You don't get the benefit of people who accept responsibility."
A few hours later, Winifred Jiau, 43, of Fremont, Calif., was sentenced to four years in prison after her conviction in an insider-trading probe that focused on Wall Street consultants who matched up public company employees willing to divulge secrets about earnings and mergers with hedge fund managers. The investigation was a spinoff of the Rajaratnam-Galleon probe.
Jiau received half the prison term recommended by sentencing guidelines from Judge Jed Rakoff, who had a different view of the effects of going to trial. "I know judges vary. It will never be the policy of this court to make a huge difference in sentence between those who exercised their right to go to trial and those who plead guilty, because at that point I think it becomes no longer a recognition of the credit that should justly be given for acceptance of responsibility, it becomes a veiled price of going to trial," he said. "There should be no price on going to trial."...
Annemarie McAvoy, a Fordham Law professor, said she learned as a young federal prosecutor in Brooklyn from 1989 to 1992 that the judge assigned to each case "makes a huge difference."
"There were clearly judges who were more favorable to the government. They did longer sentences. They didn't make it as easy for defendants," she said. "And there were other judges always trying to do as much as they can for defendants and always trying to give them the lowest sentence they could. That was luck of the draw."
Friday, October 07, 2011
House Judiciary subcommittee to hold hearing on post-Booker realities next week
As detailed in this calender entry, next Wednesday morning (Oct. 12, 2011), the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee will be conduction a hearing to examine the post-Booker federal sentencing system. The hearing has been given this telling title: "Uncertain Justice: The Status of Federal Sentencing and the U.S. Sentencing Commission Six Years after U.S. v. Booker."
Not yet listed are the scheduled witnesses for this hearing, but I assume that someone from the US Sentencing Commission (the Chair?) will be testifying. Usually these kinds of hearings include an invitation to some representative from the US Department of Justice, though that is less certain, especially given that the House Republicans get to run this show and they may want to spend much of their time beating up on DOJ.
Whomever ends up testifying, I am extremely pleased to see that the House is showing some interest in the current state and potential future of both the federal sentencing system and the USSC. On so many modern federal sentencing fronts — on issues ranging from mandatory minimums for drug and gun offenses, to crack/powder sentencing after the FSA, to fraud sentencing, to child porn sentencing (and restitution), to reasonableness review, to fast-track departures, to acquitted conduct and on and on — there is uncertainty not only as to whether justice is being served, but also as to just what the USSC is doing in response to all this uncertainty.
Though I doubt many members of the House Subcommittee share my perspectives on all federal sentencing issues issues, their eagerness to try to figure out what is really going on in the modern federal sentencing system merits praise and gets me excited. I eager to see what comes of this hearing, and will post more about it as more information becomes available.
Tuesday, September 27, 2011
Sensible sentencing alternatives for high-profile defendant involved low-level fraud
I want to praise the district judge involved in this notable federal sentencing story, headlined "Former UCA president avoids prison time for fraud," for saving taxpayer money on wasteful prison costs. Here are the details:
Former University of Central Arkansas president Lu Hardin said Monday that he was hooked on the slots the first time he played them more than a decade ago, and that his gambling compulsion and mounting debts led him to lie to school trustees to tap into bonus money he had been promised.
U.S. District Judge James Moody sentenced the one-time rising political star to five years of probation and 1,000 hours of community service, but no prison time. Hardin, 60, pleaded guilty earlier this year to falsifying a document that persuaded trustees to give him early access to a $300,000 bonus so he could pay off gambling debts.
Moody said he was convinced Hardin was "genuinely remorseful and humiliated" by his own actions. Federal sentencing guidelines suggested a sentence of nine to 12 months in prison, but Moody was not bound by that recommendation.
A major factor in Hardin's reduced sentence was his cooperation on a separate federal investigation. Hardin has spoken to the FBI and agreed to testify if the investigation, which a prosecutor would not detail, leads to any charges. An FBI spokesman also declined to comment.
After a career as an Arkansas state senator and the state's higher education director, Hardin became president of the Conway university in 2002. During a six-year tenure, he oversaw dramatic growth in the university's enrollment, endowment and prestige. Trustees approved the $300,000 bonus in full public view....
Only his wife knew about the thousands of dollars of gambling debts he racked up, Hardin said. To pay them off, he made what he called a "horrendous mistake" by forging letters to persuade trustees that he could draw early on the bonus, which was supposed to have been paid to him over five years, according to federal court documents....
Hardin's attorney, Chuck Banks, said his client is a "model person" who paid back the almost $200,000 he collected from the scheme on his own. He argued that Hardin's history of public service and his past medical problems, including a melanoma that left him blind in his right eye, merited leniency.
Moody sided with Banks. Although Hardin's actions were criminal, he had a history of good behavior and he didn't believe Hardin would commit another crime, Moody said. As part of his community service, Hardin will be required to continue attending Gamblers Anonymous meetings and to teach classes about fraud.
Hardin was president of UCA for six years before he resigned in 2008 after the scandal broke. He received a much-criticized $670,000 contract buyout, and became president of Palm Beach Atlantic University in June 2009, but resigned from that job a week before pleading guilty in March.... After pleading guilty, he surrendered his law license and lost his right to vote.
This is a great example of a low-level white-collar offense in which the direct and collateral consequences of the federal prosecution and conviction are themselves likely sufficient punishment in light of the nature of the crime and history of the offender. I often believe a very big fine and lots of community service would be both adequate and effective punishment for low-level white-collar frauds, and I wonder if any readers have any problems with a non-prison, below-guidelines sentence in a case like this.
Monday, September 26, 2011
New call for a (long overdue?) legislative and USSC fix to Booker
Matt Miner, who not long ago served as former Republican staff director for the Senate Judiciary Committee (and now is a partner at White & Case), has this notable new commentary on federal sentencing in today's National Law Journal. The piece is headlined "It's time to fix our sentencing laws; Years after the Supreme Court put the ball in Congress' court, commission can finally spur action." Here are excerpts:
The U.S. Sentencing Commission is confronting a challenge to its own existence. Critics of the commission's budget and inaction on sentencing reform have begun to call for massive cutbacks and even full elimination of the commission. Yet unlike other agencies that face similar crises, the commission has the power to propose reforms to justify and strengthen its role.
For more than six years — since the U.S. Supreme Court invalidated parts of the federal law governing sentencing policy in Booker v. U.S. — courts have increasingly disregarded the federal sentencing guidelines. At the same time, racial disparities have increased. The Supreme Court called for policymakers to respond, stating, "The ball now lies in Congress' court." But more than a half-decade later, neither Congress nor the commission has acted.
The time for action is now, and the commission has the opportunity to urge changes to restore order to our system. Given the impact of the commission's reports on crack-cocaine sentencing — resulting in passage of the Fair Sentencing Act — a commission-led Booker-fix proposal could be a game changer....
Since Booker, courts have drifted farther from guideline-based sentences, with many courts applying the guidelines less than half the time. Even more troubling, racial disparities in federal sentencing are on the rise. According to a recent commission report on demographic disparities post-Booker, the difference in sentences given to black versus white defendants has "been increasing steadily since that decision."
Sadly, racial and educational disparities have grown in a system that is increasingly determined by the judge a defendant draws. Making matters worse, appellate judges find themselves out of the sentencing business due to the lack of a meaningful appellate standard and the broad discretion retained by district courts....
The appetite for reform appears to have returned. Conservative law professor William Otis has called for a rewrite of the 1984 Sentencing Reform Act to once again make the guidelines mandatory, albeit with certain enhancements decided by a jury. And past commission chairman William Sessions, a federal judge, has proposed a grand reform to broaden the discretion given judges under the guidelines, while also restoring certainty and consistency to the system by making the guidelines "presumptive" rather than merely "advisory."
Although such reforms may take time, the commission should immediately recommend basic reforms such as codifying an appellate standard to replace the language struck down by Booker. The Supreme Court made clear that the standard that existed before the 2003 Feeney amendment would withstand constitutional challenge, and that standard is a worthwhile place to start. More recent Supreme Court decisions, including U.S. v. Rita, provide further components that could be added to the old appellate review standard, including a presumption of reasonableness for properly calculated sentences within the guidelines. Additionally, the commission should demand reforms that require judges to provide a heightened justification for any major departure from the prescribed guideline sentence.
In the absence of congressional action, federal courts will continue to struggle to apply constitutional principles to fill gaps in the sentencing statute. In essence, courts will be left to legislate from the bench.
I share Mr. Miner's interest in having the US Sentencing Commission and Congress playing a much more active role in managing and bringing greater legal order to the post-Booker sentencing system. I also think the "lack of a meaningful appellate standard" is a part of the systemic problem with the status quo. But I think this commentary overlooks at least three critical realities that must play a central role in any future sentencing reform work by the USSC and Congress:
- Crime rates are at historic low levels and have been continuing to trend down since Booker (basics blogged here and here);
- Federal prison populations are at record high levels, and the resulting overcrowding and costs must be addressed as soon as possible (as the US Justice Department stressed in its recent letter to the USSC);
- Before Booker and perhaps now even more after Booker, the defendant's luck in which prosecutor he draws matters a lot more than what judge he draws (which, as noted here, USSC stats always show).
For me, these three critical realities suggest (at least) three essential guideposts for future federal sentencing reform: (1) "Do no harm": we cannot figure out what is "working" with crime reductions, but we should make extra sure any federal sentencing changes do not reverse national crime trends; (2) "Reduce federal incarceration": we cannot afford stuffing a lot more federal prisoners into limited (and expensive) prison space, and thus we should make extra sure any federal sentencing changes do reverse the system's hyper-incarceration tendencies; (3) "Better regulate prosecutors first": initial USSC efforts to limit the impact of prosecutorial discretion have not really worked, and the USSC and Congress ought to start with prosecutorial guidelines/regulations if there is a genuine concern with enduring federal sentencing disparities.
Saturday, September 17, 2011
Record-long 50-year prison sentence for Medicare fraud imposed in Florida
As detailed in this Miami Herald article, late yesterday a "federal judge socked a convicted Miami healthcare executive with a 50-year prison sentence, the longest term ever imposed on a Medicare fraud offender." Here are the notable details:
New York transplant Lawrence Duran once ran a multimillion-dollar mental health company in Miami, lobbied Congress for his industry and tooled around town in a Maserati. His next stop: federal prison — likely for the rest of his life.
On Friday, a federal judge slammed Duran, 49, with a 50-year prison sentence for orchestrating a staggering $205 million scam at his Miami-based chain of mental health clinics. The sentence may end up being the longest prison term ever imposed on someone convicted of Medicare fraud.
Duran’s lawyer, Lawrence Metsch, had urged the judge to be realistic and give him a sentence between 20 and 25 years, arguing that 50 years means a “death sentence because he would die in prison.” But the judge, after a three-day sentencing hearing, sided with the government’s push for the extraordinarily high sentence, saying there is a “critical need for deterrence against healthcare fraud” in South Florida, the nation’s capital of Medicare corruption.
Previously, the highest Medicare fraud sentence was 30 years — given in 2008 to a Miami physician, Ana Alvarez-Jacinto, convicted in an HIV-therapy scheme.
After the sentencing, Duran shook his lawyer’s hand and then smiled to tearful relatives, as he shuffled in shackles out of the courtroom escorted by U.S. marshals. His ex-wife, Carmen Duran, and his only sibling, Kenia Duran Ramirez, said the judge’s sentence was not a “fair assessment” of the former executive’s life, saying his work for the mentally ill was “not all bad.”
This year, Duran and his girlfriend, Marinella Valera, co-owners of American Therapeutic Corp., pleaded guilty to a variety of conspiracy, fraud and money-laundering charges after they failed to reach plea deals with the Justice Department.
Duran, in custody since his arrest last October, was probably his own worst enemy during the sentencing hearing. Although he showed remorse for running American Therapeutic as a criminal enterprise for eight years, he also admitted he tried to steal as much money as he could from the taxpayer-funded Medicare program.
His company collected $87 million in Medicare payments after submitting $205 million in bogus bills, which he generated by paying kickbacks to recruiters to supply patients suffering from dementia, Alzheimer’s and addictions. He admitted they could not have benefited from his company’s purported group therapy sessions. Justice Department attorney Jennifer Saulino called Duran a “cold, calculating man” who exploited both vulnerable patients and the government’s healthcare program for the elderly and disabled....
Duran’s girlfriend, Valera, 40, a therapist, is scheduled to be sentenced Monday. Prosecutors plan to urge the judge to give her a 40-year prison sentence. A total of 34 people, including American Therapeutic employees, doctors, therapists, nurses and recruiters, have been charged in the massive fraud case, which is being investigated by the FBI and Health and Human Services-Office of Inspector General.
September 17, 2011 in Booker in district courts, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (2) | TrackBack
Monday, September 12, 2011
Lawyers spar in briefing before Rajaratnam's sentencing for insider trading
This New York Times piece, headlined "Rajaratnam Lawyers Call Sentence Request ‘Grotesquely Severe’," reports on the last round of briefing before the scheduled sentencing of convicted trader Raj Rajaratnam. Here are some details:
Federal prosecutors and lawyers for Raj Rajaratnam filed their second round of sentencing briefs on Friday, setting the stage for later this month when a federal judge will announce the former hedge fund manager’s prison term.
Mr. Rajaratnam is set to appear before Judge Richard J. Holwell in Federal District Court in Manhattan on Sept. 27. The government has requested a term of 19 and a half to 24 and a half years. “Rajaratnam is arguably the most egregious offender of the insider trading laws prosecuted to date,” federal prosecutors said in their court filing.
Defense lawyers said the government is overreaching by requesting a “grotesquely severe” sentence. “The government asks the court to ignore Raj Rajaratnam the human being and to sentence a caricature instead,” Mr. Rajaratnam’s lawyers said. “This court’s role is not to validate a prosecutorial public relations effort, nor is it to single out one man to serve as the whipping boy for Wall Street misdeeds.”
In May, a jury convicted Mr. Rajaratnam, the co-founder of the Galleon Group hedge fund. He was found guilty of generating illegal gains of $64 million by trading on confidential information about publicly traded companies including Intel and Goldman Sachs.
Mr. Rajaratnam’s lawyers at Akin Gump Strauss Hauer & Feld made several arguments in asking Judge Holwell for leniency. They said that the illegal trades in question accounted for only 1 percent of his trading activity. They argue that the sentence is disproportionate to the sentences imposed in other insider trading cases, and greater than the average sentence for violent crimes, including kidnapping and sexual abuse. They also insist that the government’s requested sentence “would guarantee Mr. Rajaratnam’s death in prison” because of the 54-year-old’s medical issues.
The government urged Judge Holwell to reject the arguments presented by Mr. Rajaratnam’s lawyers. On the issue of the Mr. Rajaratnam’s health, the government challenged the defense to disclose exactly what medical issues would justify a lenient sentence.
I found the defense reply sentencing memo, which runs more than 50 pages, available at this link. I cannot yet find a link to the Government's filing.
A Fifth Circuit reminder that not all federal defendants like the guidelines being merely advisory
One (of many) under-discussed aspects of the post-Booker system is that, in percentage terms, the number of above-guideline sentences have gone up more than the number of below-guideline sentences since the guidelines became adviosry. Roughly speaking, though the number of below-guideline sentences have increased about 50% post-Booker, the number of above-guideline sentences have increased nearly 100% post-Booker.
Though the absolute number of above-guideline sentences remain relatively small, the decision late last week from the Fifth Circuit in US v. Pizzolato, No. 10-30729 (5th Cir. Sept. 9, 2011) (available here), provides a useful reminder that not all federal defendants benefit from the guidelines now being merely advisory. Here is how the Pizzolato opinion starts:
Defendant-Appellant Matthew B. Pizzolato pleaded guilty to multiple crimes related to his conduct in running a fraudulent “Ponzi” scheme. The plea agreement recommended an applicable sentencing range of 151 to 188 months under the Federal Sentencing Guidelines (the “Guidelines”). The district court disregarded the plea agreement’s recommendation and imposed the statutory maximum sentence of 360 months. Appellant argues that the Government breached the plea agreement by providing the district court with facts and arguments supporting a longer sentence than the parties agreed upon. We find no merit to defendant’s arguments and affirm.
September 12, 2011 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (2) | TrackBack
Wednesday, September 07, 2011
Newest federal sentencing data run from US Sentencing Commission now available
The US Sentencing Commission has some fresh new federal sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:
Third Quarter FY11 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the third quarter of fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published September 6, 2011)
The new data largely show the continued trend of a very slow migration away from guideline ranges, with federal prosecutors, not federal judges, continuing to be the primary driving force behind below-range sentences. Indeed, the latest quarter of data reveal a record high percent of government-sponsored below-guideline sentences (27.7%), coupled with a relatively low percentage of judge-initiated below-guideline sentences (16.9%) .
The changes in the latest quarter of data could merely reflect changes in types of cases sentenced: e.g., the processing of relatively more immigration and non-crack drug cases will likely always drive up the relative percentage of government-sponsored below-guideline sentences because fast-track and cooperation departures are much more common that judge-initiated variance in those types of cases. Nevertheless, there is still an notable patter reflected in all of the last three quarters of data: government-sponsored below-guideline sentences increased roughly 10% over this period, while judge-initiated below-guideline sentences have decreased roughly 10% over this same period.
Tuesday, August 30, 2011
Barry Bonds' federal sentencing now set for December
As detailed in this MLB.com report, a "sentencing date of Dec. 16 has been set for Barry Bonds, whose conviction for obstruction of justice was upheld in federal court last week." Here is more background:
A seven-time Most Valuable Player who set the single-season and career home run records during his 22-year career, Bonds was convicted of obstruction but the jury could not come to a consensus on any of three counts of making false declarations. The charges were based on Bonds' 2003 testimony before the Bay Area Laboratory Co-Operative (BALCO) grand jury, in which he denied knowingly using performance-enhancing drugs.
According to the indictment against Bonds, the maximum penalty for the obstruction charge is "10 years maximum imprisonment, $250,000 fine, three years supervised release, $100 special assessment fee." But federal sentencing guidelines reportedly suggest 15-21 months, and previous BALCO sentences suggest Bonds could be given house arrest.
Illston, who has presided over the cases brought by the BALCO investigation, previously sentenced cyclist Tammy Thomas to six months of home confinement and track coach Trevor Graham to one year of home confinement. Thomas was convicted of three counts of making false statements and one count of obstructing justice but was acquitted of two perjury charges. Graham was convicted of one count of giving false statements, and the jury deadlocked on two other charges.
Illston ruled Friday that the record showed Bonds "endeavored to obstruct the grand jury" when he rambled and talked about friendship, fishing and being a "celebrity child" when asked whether trainer Greg Anderson ever had injected him with anything. The defense still could appeal the conviction.
The government has yet to announce whether it will retry any of the charges that wound up in a hung jury. While two wound up in favor of acquittal, according to jurors, Count Two -- also relating to whether Bonds received injections from Anderson -- was 11-1 in favor of conviction.
I am going to mark the December 16 date on my calendar in pencil; these high-profile sentencings have a tendency to get postponed for various reasons. But I am already looking forward to seeing how the parties seek to apply 3553(a) to Bonds in their sentencing submissions.
Related recent Bonds posts:
- Is Barry Bonds going to have to worry soon about federal sentencing realities?
- Is it clear that Barry Bonds would have a 15-21 months guideline range?
- Barry Bonds convicted of obstruction, jury deadlocked on perjury counts
- Barry Bonds convictions upheld by district judge... next stop sentencing(?)
Thursday, August 11, 2011
"Kids for Cash" judge gets 28-year (way-above-guideline?) federal prison term
As detailed in this local Pennsylvania article, which is headlined "Luzerne ex-judge gets 28-year sentence," a judge at the center of a juve sentencing scandal will now likely spend the rest of his life in prison. Here are the basics:
A disgraced Luzerne County judge was sentenced to 28 years in federal prison Thursday for his conviction on charges of taking hundreds of thousands of dollars in payments in connection with the operation of the counties' juvenile center. The ex-judge, Mark A. Ciavarella, Jr., 61, was given the harsh sentence after he told the judge that he apologized for unethical behavior but had never taken "cash for kids."
He was found guilty in February of twelve counts of racketeering, conspiracy, fraud and filing false tax returns. The jury acquitted him on 27 other counts of bribery and extortion, as he pointed out to the judge before he was sentenced.
Ciavarella, for years the head of juvenile court in the county, was charged with the former president judge there in a 2.8 million dollar scheme to enrich themselves through their control of juvenile justice in Luzerne County.
The other ex-judge, Michael T. Conahan, 59, pleaded guilty and is awaiting sentencing, as are other key conspirators in the plot, including the builder and an owner of a for-profit juvenile detention center that was at the heart of the corruption....
Juvenile justice advocates, in criticism later affirmed by the State Supreme Court, said Ciavarella ran a kangaroo court for teens and children, shipping them to the facility with no regard for fairness. Prosecutor Gordon Zubrod told the sentencing judge, Edwin Kosik, that Ciavarella had sold kids wholesale and deserved to be sentenced "for the rest of his natural life."
Based on prior reports about the calculated guideline range in this imposed prison term appears to be way above the applicable guideline range. It wll be interesting to see if an appeal of the sentencing to the Third Circuit is on the horizon.
Tuesday, July 19, 2011
Seeking information on large number “other government-sponsored departures” in federal child pornography cases
Among my projects for this summer is to try to better understand just how most federal child pornography cases are process and sentenced. An early bit of data-mining with the help of an able research assistant prompts the request/inquiry in the title of this post. Specifically, I am curious about the stories/reasons surrounding one notable data point from the US Sentencing Commission, namely the significant number of child porn cases involving so-called "other" government-sponsored downward departures.
As federal sentencing practitioners know, the vast majority of downward departures recommended by federal prosecutors stem from early pleas in "fast-track" districts under § 5K3.1 or from because a defendant provided "substantial assistance" and benefitted from a motion under § 5K1.1. But according to FY 2010 data from the USSC, zero child porn defendants got a fast-track break and only 57 of 1,886 child pornography cases (3%) involved a substantial-assistance downward departure.
But, these same FY 2010 USSC data document a comparative large number “other government-sponsored departures”: over 10% of child pornography cases in FY 2010 (195 cases out 1,886) involved a below-guideline sentence based on some "other" government-sponsored departure. (This represents roughly triple the number of such departures in all other cases in which only about 3.5% of dispositions involved an "other" government-sponsored downward departure.) Moveover, it appear that a trend toward regular use of "other government-sponsored [downward] departures" in child porn cases is picking up speed: in the USSC data for the first half of FY 2011, we see the government has sponsored "other" downward departures in nearly 15% of all cases (132 of 911 total cases).
Notably, Table 25 of the USSC 2010 Sourcebook of Federal Sentencing Statistics available here compiles the reasons given by sentencing courts for downward departures from the guideline range. The Commission makes no table publicly available reporting reasons given by the government for sponsoring an "other" downward departure. I asked my research assistant to see if cases reported on Lexis and Westlaw provide any qualitative information about these departures, but the online databases provide little insight on just when the government has sponsored a downward departure or the specific factors motivating the prosecutor to sponsor these types of departures.
These data and realities prompt a range of follow-up questions. I wonder if there any internal guidelines (or external transparency) concerning this growing group of cases. I wonder if prosecutors in certain districts or circuits use these kinds of "other" government-sponsored downward departures more than others. I wonder if the USSC can effectively identify and report (and codify) the reasons most often given for these kinds of departures. I wonder if this trend will continue and expand to other kinds of cases.
I could go on and on, but for now I hope I have with this post effectively explained the phenomenon I am trying to better understand. I also hope at least a few federal prosecutors and/or defense attorneys may with experiences with these kinds of departures may be able to help me understand just what is now often going on in these cases.
July 19, 2011 in Booker in district courts, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack
Thursday, July 14, 2011
Fascinating (and Posnerian classic) opinion on diminished capacity, child porn, and sentencing theory
Judge Posner provides today's must-read circuit opinion in US v. Garthus, No. 10-3097 (7th Cir. July 14, 2011) (available here). Judge Posner's opinion for the Seventh Circuit in Garthus packs in so much of interest in a tight 13 pages, I have a hard time deciding which part to exceprt. So, here is just the very start of the opinion along with just one of many interesting passages (with cites removed) to whet everyone's appetite for the whole opinion:
The defendant pleaded guilty to federal crimes of transporting, receiving, and possessing child pornography and was sentenced to 360 months in prison. The guidelines sentencing range was 360 months to life; the statutory minimum sentence was 180 months; he was 44 years old when sentenced. His appeal challenges his sentence on several grounds, of which the one most emphasized by defense counsel is that the district court improperly failed to consider her argument that the defendant had had “diminished capacity” to avoid committing the crimes, a ground recognized by the sentencing guidelines as a possible justification for a lower sentence....
Why diminished capacity in this sense (or senses) should be a mitigating factor in sentencing is obscure. The diminution makes a defendant more likely to repeat his crime when he is released from prison. That is especially so when the crime involves compulsive behavior, such as behavior driven by sexual desire. Such behavior requires active resistance by the person tempted to engage in it, if it is to be avoided; and diminished capacity weakens the ability to resist. One of the defendant’s experts opined that the defendant’s ability to resist could be strengthened substantially with medication and therapy. But both defense experts believed, and defense counsel argued, that he wouldn’t get proper treatment in prison. That is very damaging to the argument that he won’t recidivate, since by virtue of the statutory minimum he will spend many years in prison and when released may be unable to resist his criminal impulses because his condition will not have been treated effectively in prison.
From a “just deserts” standpoint, diminished capacity argues for a lighter sentence, but from the standpoint of preventing recidivism it argues for a heavier one. The heavier sentence may not deter a criminal from repeating his crime when he is released (that is implied by saying he has diminished capacity), but it will reduce his lifetime criminal activity by incapacitating him for a longer time than if he received a lighter sentence.
How to choose? The sentencing guidelines do not embody a coherent penal philosophy. “The [Sentencing] Commission’s conclusion can be summarized thus: since people disagree over the aims of sentencing, it is best to have no rationale at all.” Andrew von Hirsch, “Federal Sentencing Guidelines: Do They Provide Principled Guidance?,” 27 Am. Crim. L. Rev. 367, 371 (1989). In the case of diminished capacity the guidelines have embraced a just-deserts theory; but why it has done so — why it has in this instance elevated just-deserts considerations over the interest in preventing recidivism — is not explained. In any event, under the Booker regime a sentencing judge can adopt his own penal philosophy. And so he can disregard the guidelines’ classification of diminished capacity as a mitigating factor, regard it as an aggravating factor, or regard it as a wash.
July 14, 2011 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (14) | TrackBack
Notable recent resentencing opinion on career offenders and Kimbrough discretion
I recently received a copy of a notable resentencing opinion from US District Judge Gregory Presnell, who long ago already secured a place in my Sentencing Hall of Fame. The opinion in US v. Vazquez, No. 6:04-cr-212-Orl-31 (M.D. Fla. June 28, 2011) (available for download below), covers a number of modern federal sentencing issues and reviews a remarkable procedural history for a single low-level drug defendant.
Specifically, way back in 2005 just six months after the Booker ruling, Judge Presnell originally imposed a sentence of just over nine years in prison after refusing to essentially double the defendant's sentence, as the guidelines' career-offender provisions urged, based on two old convictions. On the government's appeal, this sentence was vacated, with the Eleventh Circuit holding that policy-based criticism of the career-offender guidelines was not permitted. Judge Presnell then imposed a substantially higher sentence (15 years in prison), a sentence which was upheld by the Eleventh Circuit. But upon further appeal, the Solicitor General switched positions and argued that the Eleventh Circuit had misinterpreted Kimbrough, and the case was ultimately returned to Judge Presnell for another resentencing.
In this latest opinion, Judge Presnell explains all this history and accounts for the current state of the law within the Eleventh Circuit. He then reimposes the original sentence, less another 20 months for post-sentencing rehabilitation under Pepper. Notably, the opinion reports that "the parties agreed that a 20-month reduction would be appropriate to account for the Defendant’s post-sentencing rehabilitation." Slip op. at 10 (emphasis added).
There is now such great irony represented by this (finally!) final Vazquez sentence: by virtue of federal prosecutors fighting the original 110-month sentence so effectively from the outset, along with SCOTUS rulings along the way, the defendant here was able ultimately to secure an extra 20 months off his original below-guideline sentence, and federal prosecutors now apparently agree that a sentence even below that originally imposed is now just and proper. And, assuming the defendant gets his 15% good-time credits for time already served, it would seem he is due to be released from prison not long after his sentence was finally resolved.
Wednesday, July 13, 2011
"Blaine hacker who terrorized neighbors gets 18 years in federal prison"
The title of this post is the headline of this interesting local article from Minnesota reporting on an interesting federal sentencing proceeding for an (interesting?) cyber-criminal who ultimately received an above-guideline sentence. Here are the details:
Federal prison sentences aren't computed this way, but the 18 years Blaine hacker Barry Ardolf was sentenced to Tuesday works out to one year for every 39.3 days of hell he put his victims through.
Matt Kostolnik told a judge that the 707 days his family spent living next to Ardolf were days of dread and fear. Ardolf had waged a cybercampaign of terror against them, all because they called the cops after the man planted what they called a "wet kiss" on their young son's lips. "I felt like me and my family were under attack. I went numb that day," Kostolnik told U.S. District Judge Donovan Frank of the day of the kissing incident, which occurred the day after they moved into a house on a cul-de-sac next to Ardolf. ...
Ardolf, 46, then a technician at Medtronic, was a "certified ethical hacker," according to the bumper stickler above his bed, who used his skills to hack into the Kostolnik's wireless router. He then opened email accounts in Kostolnik's name to send lewd and threatening messages to several people in the Kostolniks' lives. Some emails threatened the vice president and other elected officials, while other messages, to Kostolnik's co-workers and bosses at the downtown Minneapolis law firm where he worked as a lawyer, included child pornography....
The sentence was less than the 24-year, five-month term that Assistant U.S. Attorney Timothy Rank had asked for. The seasoned prosecutor, who has stared down murderers, told Frank that Ardolf's capacity for "ruthless cruelty" ranked him among the most dangerous people he'd ever prosecuted.
Defense lawyer Kevin O'Brien had argued that while Ardolf's conduct was bad, the man himself wasn't. A sentence of no more than 6-1/2 years was appropriate, he argued. O'Brien is Ardolf's court-appointed "stand-by" counsel; the defendant fired his second attorney this year and declared that he wanted to represent himself....
Ardolf was charged in June 2010, agreed to a plea deal, rejected it, was indicted on more charges, went to trial and then halted the trial after a couple of days to plead guilty. Then, on the eve of his sentencing in March, he told Frank he wanted to withdraw his guilty plea and get a "do-over" trial. The judge rejected his arguments, setting the stage for Tuesday's proceedings....
Dressed in orange jail antimicrobial clothing and sometimes wearing two pairs of glasses simultaneously, Ardolf, a widower, began his comments by apologizing to the Kostolniks, his own three children and his family, some of whom were in the courtroom. But he spent most of his time talking about himself, a trait that had prompted Rank to complain at a hearing in May that Ardolf was a narcissist unable to show true remorse or feeling for his victims....
He reeled off a list of recent prison sentences he'd read about in the paper -- including the 10-year sentence meted out to former auto mogul Denny Hecker this year -- and said that relatively speaking, his crime wasn't as bad as those of some people sent to prison for terms less than what he was facing. "I didn't kill anyone," he said.
Even O'Brien stretched to explain Ardolf's behavior, saying that when he first met him, he found him to be "too arrogant, not willing to listen. The question now is, What is a reasonable sentence for such unreasonable acts?" O'Brien asked. He acknowledged that Ardolf has "done some bizarre, hurtful acts."
Ardolf had pleaded guilty to unauthorized access to a protected computer, two counts of aggravated identity theft, possession and transmission of child pornography and making threats to the vice president. Frank said he'd gotten a handful of letters on Ardolf's behalf; a common theme: the man didn't seem the same after his wife died suddenly two days before her 38th birthday....
Frank noted that when Ardolf's points were computed, the guidelines called for a maximum of 15 years and eight months. But the judge said a harsher punishment -- 216 months, or 18 years -- was called for. "Anything any less than that would not serve the purposes of justice," he told Ardolf, who stood before the judge, hands clasped in front of him.
Friday, July 08, 2011
Interesting substantive reasonableness ruling from Eighth Circuit
In an interesting sentencing ruling today in US v. Shakal, No. 10-3019 (8th Cir. July 8, 2011) (available here), reveals yet again how hard it is to get a within-guideline sentence reversed as substantively unreasonable if and when a district judge provides a thoughtful explanation for his sentencing decision. Here are a few key paragraphs from the ruling:
Yahya Muhumed Shakal pleaded guilty to four counts of aiding and abetting the preparation of false federal income-tax returns. At sentencing, Shakal argued that his experiences in Somalia during the violent Somali civil war entitled him to a sentence well below the advisory Guidelines range. The district court denied Shakal's request, and sentenced him to a Guidelines sentence of 72 months' imprisonment. Shakal now appeals, urging that the district court's sentence is substantively unreasonable. We affirm....
The record clearly shows that the district court considered Shakal's violent experiences during the Somali Civil War, including witnessing the murder of his father and the rapes of his sisters. Indeed, the district court agreed with Shakal's counsel that Shakal and his family had "been through hell," and conceded that "[t]he real issue is going to be . . . how should that affect his sentence this morning."
Also, the district court considered but rejected Shakal's sentencing-disparity argument. Specifically, Shakal maintained, as he does now, that a "Mr. Mohamed" initially taught Shakal how to fraudulently request the fuel tax credit on tax returns, and that Mohamed received only 18 to 24 months at sentencing (from a different judge). The district court responded to this argument by first acknowledging that it had read through Mohamed's entire file the night before Shakal's sentencing, but ultimately concluded that Mohamed's case differed greatly from Shakal's in that Mohammed's tax scheme cost the United States Government only $44,000, far less than Shakal's $2 million haul....
[In addition, as the sentencing transcript shows,] the district court not only considered Shakal's personal history and circumstances in fashioning a sentence but reduced the sentence it would have otherwise assessed Shakal in light thereof. Therefore, the district court did not abuse its discretion in sentencing Shakal to 72 months' imprisonment.
Friday, May 13, 2011
If "most egregious and horrific" kiddie porn offender gets 15 years, what should mere downloaders get?
The question in the title of this post is inspired by this local article concerning a federal sentencing in Pittsburgh yesterday, which is headlined "Tough sentence ends 'Stephen's Group' child pornography case." Here are the basics:
The eighth and final person found guilty of participating in an international child pornography ring wept and apologized in federal court in Pittsburgh yesterday. "It was outrageous, my conduct, and I deeply regret having done it," said Dave Dean, 43, of Texas and Arizona. "It's clear I have a serious problem."
Dean's regret didn't keep him from receiving one of the tougher punishments handed out to the eight members of "Stephen's Group": 15 years in prison and a lifetime of [supervised release]. U.S. District Judge Arthur Schwab said Dean's case was the "most egregious and horrific" of the child pornography cases heard in his court. "The court is not willing to risk the chance that the defendant will re-offend," he said in handing out the sentence.
Dean and the others were part of a cabal led by Stephen Sims, 57, of San Leandro, Calif. Sims was the self-professed "den mother" who vetted people wanting to join the Internet group and had them send him images and videos of child pornography to prove they weren't police officers. The group used social networking sites to exchange images and videos.
John Morton, director of U.S. Immigration and Customs Enforcement, which is involved because many images came from overseas, said after Dean's sentencing that the group traded images of children as young as infants being raped and tortured. "There is little in this world that is more depraved than this," he said.
I am not prepared to assert without more information about this case that the "depraved" defendant involved in the "most egregious and horrific" kiddie porn offense here was lucky to only get a 15-year prison term. But I know that there are lots of far less aggravated child porn downloading cases in which the federal sentencing guidelines call for prison terms much longer than 15 years, and thus this case provides yet another example of the challenges of developing and imposing consistent and proportional sentencing terms in these types of cases.
Thursday, May 12, 2011
What insider trading sentence for Raj Rajaratnam would avoid "unwarranted" disparity?
I had not been following closely the trial of Raj Rajaratnam, but the conviction of the founder of the Galleon Group on all counts of insider trading (basics reported here) now turns the case into a interesting federal sentencing story. And this new Reuters piece, headlined "Factbox: Prison sentences in insider trading cases," prompts the question in the title of this post. Here are the facts reported by Reuters:
The Galleon Group founder could face up to 25 years in prison when he is sentenced in July, although prosecutors said on Wednesday that [Raj Rajaratnam] could get 15-1/2 to 19-1/2 years in prison under federal sentencing guidelines. Following is a list of punishments meted out to defendants in other high-profile insider trading cases:
IVAN BOESKY -- Boesky, the famed Wall Street stock speculator of the 1980s, was sentenced to three years in prison in 1987 after pleading guilty to a criminal charge related to insider trading. Boesky, who faced a maximum penalty of five years, cooperated with prosecutors in their probe of trading firms that resulted in charges against more than a dozen people.
MARK KURLAND, ROBERT MOFFAT AND ALI HARIRI -- All three pleaded guilty in the sweeping Galleon probe. Kurland, a former senior managing director at New Castle Funds LLC, was sentenced in May 2010 to two years and three months in prison. Kurland admitted to trading on information he got from Danielle Chiesi, also a former New Castle employee who became a central figure in the Galleon investigation. Chiesi has pleaded guilty and is awaiting sentencing. Moffat, a former International Business Machines Corp executive, was sentenced to six months in prison for tipping Chiesi about an impending IBM deal with Advanced Micro Devices Inc. Hariri, a former executive at chipmaker Atheros Communications Inc. received an 18-month sentence in November for tipping a former Galleon employee.
SAM WAKSAL -- The founder of biotechnology company ImClone Systems Inc. was sentenced to seven years in prison after pleading guilty to insider trading in 2002. The scandal also ensnared Waksal's father as well as lifestyle entrepreneur Martha Stewart, who was convicted of lying to federal agents about her sale of ImClone stock. She served five months in prison.
JOSEPH NACCHIO -- Nacchio, the former CEO of Qwest Communications, was sentenced to six years in prison, later reduced by two months, after he was convicted in a 2007 trial of 19 counts of insider trading in selling $52 million in Qwest stock. A judge also ordered Nacchio to forfeit $44.6 million and pay a $19 million fine.
JOSEPH CONTORINIS -- Contorinis, a former hedge fund manager, received a 6-year sentence in December for his role in providing tips on impending mergers, such as the 2006 buyout of the supermarket chain Albertsons Inc.
HAFIZ NASEEM -- A judge sentenced Naseem, a former Credit Suisse Group investment banker, to 10 years in prison after he was found guilty in February 2008 of participating in a $7.5 million scheme to leak inside information about pending corporate deals.
RANDI AND CHRISTOPHER COLLOTTA -- Randi Collotta, a former Morgan Stanley lawyer, received a sentence of 60 days in prison on nights and weekends for passing along tips to her husband about impending merger deals. Her husband, Christopher, got a sentence of 6 months' home confinement.
So, based on this (incomplete) list, it appears that nobody has received more than a decade for insider trading and that sentences of six year or much less are more common for this crime. Does this entail that the sentencing judges in Raj Rajaratnam's case ought to feel a special statutory obligation to impose a below-guideline sentence based on Congress's instruction in 18 USC 3553(a)(6) to consider at sentencing "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct"?
Sunday, May 01, 2011
Guest thoughts on the Ninth Circuit's recent significant child porn sentencing work
In the last few weeks, the Ninth Circuit has issued two significant federal child porn sentencing opinions in Apodaca (discussed here) and Henderson (discussed here). I invited Joshua Matz, who authored a Harvard Law Review comment on the Second Circuit's big Dorvee case (noted here) and who hosted me at an HLS event last month, to author a guest-post on these cases. Here is his effort:
Powerful Shots Across the Commission’s Bow on Child Porn Guidelines — This Time from the Ninth Circuit
It is no secret that the federal child porn sentencing guidelines have sustained withering criticism from the academy and district courts. Motivated in part by a surge in federal prosecutions, commentators have strongly encouraged the Sentencing Commission to revisit guidelines widely decried as unduly severe and unmoored from empirical evidence.
In two recent cases, the Ninth Circuit staked out an aggressive position amongst these critics — first raising the specter of aggressive review for substantive reasonableness in US v. Apodaca, and then holding in US v. Henderson that district courts are free to vary from § 2G2.2 based solely on policy disagreement with that guideline. These opinions likely will transform child porn sentencing practice in the Ninth Circuit and signals to the US Sentencing Commission that its failure to produce meaningful reform justifies unilateral judicial action.
The Ninth Circuit hardly stands alone. In US v Dorvee, an opinion issued last May, the Second Circuit overturned a within-Guidelines sentence under U.S.S.G. § 2G2.2 as substantively unreasonable. Its opinion sharply assailed the guideline’s empirical foundations and inability to achieve either parsimony or proportionality in sentencing. A few months later, in US v. Grober, the Third Circuit affirmed a district court child porn sentencing opinion that mounted a sustained assault on the relevant guidelines provisions by discussing thirteen days of expert testimony presented to the lower court.
In Apodaca, the Ninth Circuit reprised many of these themes while exploring a defendants’ claim that his within-Guidelines term of lifelong supervised release was substantively unreasonable. Focusing on the Guidelines’ failure to distinguish between contact and possession-only offenders — notwithstanding studies that strongly suggest different recidivism rates — Apodaca raised serious questions about the empirical support for a choice to treat these groups similarly. Invoking Kimbrough in a concurring opinion, Judge William Fletcher went farther and argued that the Commission did not act in its “characteristic institutional role” when it failed to translate § 3583(k) into sentences appropriate to § 3553(a)-relevant subtypes of child porn crimes. Because the Guidelines impose the same terms of supervised release on a broad range of offenders, he argued, they raise concerns about empirical support, similar treatment for dissimilar defendants, and focusing on particular characteristics of the offense and the offender.
The most surprising thing about Apodaca is that it affirmed the sentence below, turning aside at the last minute from its forceful criticism by finding that available evidence falls short of conclusive proof. Given that the court identified only a single study questioning strong empirical support for different recidivism rates — and that a co-author of that single study has disowned the suggestion that his work disturbs a scholarly consensus — the ApodacaCourt’s own reasoning could easily have justified reversal of the sentence below. Instead, the Court merely observed that additional evidence might provide “grounds to find that sentencing an individual like Apodaca to a lifetime term of supervised release is substantively unreasonable.”
This challenge, which defense counsel should treat as an invitation to press their empirical case in the district courts, suggests that the Ninth Circuit has joined the Second and Third in its willingness to searchingly explore the underlying justification for child porn sentences in light of § 3553(a)’s framework. Indeed, the court’s use of substantive reasonableness review grounded in statutory principles of parsimony, proportionality, individualization, and empirical support mirrors Dorvee and participates in an important trend in appellate review of the Guidelines.
These same methods of reviewing a guideline should also play a significant role in post-Hendersonsentencing. By holding that § 2G2.2 does not reflect the Commission’s “characteristic institutional role” and permitting variance based purely on policy disagreement, the Ninth Circuit opened the door to searching district court review of § 2G2.2’s rationality as both an exercise in administrative rulemaking and a guide to reasonable sentences in particular cases. Judge Berzon actively encouraged such reflection and criticism in her concurring opinion, writing separately “to emphasize that unjust and sometimes bizarre results will follow if § 2G2.2 is applied by district courts without a special awareness of the Guidelines anomalous history.”
Now that district courts are required by Henderson to “appreciate” their Kimbrough discretion, and given the partial overlap between critiques of § 2G2.2 and § 5D1.2, trial counsel arguing the infirmity of child porn guidelines can simultaneously achieve two goals: (1) elaborating empirical and § 3553(a) grounds for future appellate findings of substantive unreasonableness and (2) providing district judges with concrete information relevant to a determination of whether their Kimbrough discretion ought to be exercised to vary from § 2G2.2 as a matter of policy.
These developments point to an explanation for why the Apodaca Court stayed its hand from an outright finding of substantive unreasonableness. In that case, Judge William Fletcher concurred and called upon the Commission and Congress to “address the undifferentiated treatment of the dissimilar groups of sex offenders covered by § 3583(k) and U.S.S.G. § 5D1.2(b)(2).” Just one week later, the Ninth Circuit essentially allowed each district judge to place § 2G2.2 under review. These opinions strongly signal to the Commission that its policy statements are lacking and that, if it wants its Guidelines to avoid rougher judicial treatment in the future, the Commission should embrace the opportunity for reform provided by an upcoming reassessment of its child porn guidelines. In the interim, courts wielding Kimbrough discretion and substantive reasonableness doctrine will refine their own careful assessment of the Commission’s efforts.
Monday, April 25, 2011
Latest USSC federal sentencing data shows uptick in within-guideline sentences
I am pleased an intrigued to see that the US Sentencing Commission has some fresh new sentencing data now up on its website. The USSC's latest data report, which can be accessed here, is described this way:
First Quarter FY11 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during the first quarter of fiscal year 2011. (Published April 19, 2011)
The new data continue to show remarkable stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that around 55% of all federal sentences are within the calculated guidelines range, with prosecutors requesting a below-range sentence in over 25% of all cases. Most notably, these latest numbers reveal a slight uptick in the total number of within-guideline sentences apparently as a result of a slight downtick in the number of judge-initiated below-guideline sentence.
Friday, April 15, 2011
US Sentencing Commission releases final FY10 federal sentencing data and annual report
Though I am hoping to finally get my golf clubs some work this weekend, I know I also will be giving my printer something to do because the US Sentencing Commission has just posted on its website a bunch of new sentencing data and analysis. Specifically, here is the e-mail notice I just got via the USSC:
Commission releases FY2010 Annual Report & FY2010 Sourcebook. In this publication the Commission separately reports, for the first time, data for "Child Pornography" offenses, reflecting the fact that these cases now account for more than 2% of all cases reported to the Commission in fiscal year 2010.
I hope to mine some interesting stories from this new federal sentencing materials in the next few days. Readers/commentors are welcome and encouraged to help the effort, as there is a lot of "there there" in these new USSC documents.
Friday, April 08, 2011
Judge Mark Bennet thoroughly explains why he is stil going to use 1:1 ratio in crack sentencings
In a week full of important crack sentencing news, I think the most interesting development come from Iowa in the form of a lengthy new opinion by US District Judge Mark Bennett in US v. Williams, No. CR 10-4083-2-MWB (D. Iowa Sept. 27, 2010) (available for download below). I could say so much about so many notable passages in this 82-page opinion, but I will be content to let the first paragraph and the conclusion of the Williams opinion speak for itself:
Defendant Billy Williams, Sr., came before me on March 15, 2011, for a presentencing hearing on his motion for downward variance, objections to the presentence report, and other legal issues, following his guilty plea to four crack cocaine charges. Although there were numerous other issues to be resolved in the course of Williams’s sentencing, this Memorandum Opinion And Order focuses exclusively on the issue of whether I should continue to adhere to my prior determination that a 1:1 crack-to-powder ratio is appropriate to calculate the guideline sentencing range for crack cocaine offenses, or should now adopt the roughly 18:1 ratio adopted by the Sentencing Commission on November 1, 2010, pursuant to a congressional mandate in the Fair Sentencing Act of 2010. When I first learned that the 2010 FSA was about to be passed, I just assumed that I would change my opinion from a 1:1 ratio to the new 18:1 ratio, because I assumed that Congress would have had persuasive evidence — or at least some empirical or other evidence—before it as the basis to adopt that new ratio. I likewise assumed that the Sentencing Commission would have brought its institutional expertise and empirical evidence to bear, both in advising Congress and in adopting crack cocaine Sentencing Guidelines based on the 18:1 ratio. Failing that, I assumed that the prosecution would present at the presentencing hearing in this case some evidence supporting the 18:1 ratio. This Memorandum Opinion And Order addresses whether my modest expectations have been fulfilled and whether I should now also adopt the 18:1 ratio adopted in the amended Sentencing Guidelines....
Make no mistake: I believe that the replacement of the 100:1 crack-to-powder ratio of the 1986 Act and associated Sentencing Guidelines with the 18:1 crack-to-powder ratio of the 2010 FSA and the November 1, 2010, amendments to the Sentencing Guidelines was a huge improvement, in terms of fairness to crack defendants. While such incremental improvement is often the nature of political progress on difficult social justice issues — and, in this instance, the increment is perhaps unusually large — an incremental improvement is not enough to make me abdicate my duty to “[c]ritically evaluat[e] the crack/cocaine ratio in terms of its fealty to the purposes of the Sentencing Reform Act.” See Whigham, ___ F. Supp. 2d at ___, 2010 WL 4959882 at *7.
Performing that duty here, I must reject the Sentencing Guidelines using the “new” 18:1 ratio, just as I rejected the Sentencing Guidelines using the “old” 100:1 ratio, based on a policy disagreement with those guidelines, even in “mine-run” cases, such as this one. I must do so, because I find that the “new” 18:1 guidelines still suffer from most or all of the same injustices that plagued the 100:1 guidelines, including the failure of the Sentencing Commission to exercise its characteristic institutional role in developing the guidelines, the lack of support for most of the assumptions that crack cocaine involves greater harms than powder cocaine, the improper use of the quantity ratio as a “proxy” for the perceived greater harms of crack cocaine, and the disparate impact of the ratio on black offenders. I also find that the “new” guidelines suffer from some additional concerns, in that they now create a “double whammy” on crack defendants, penalizing them once for the assumed presence of aggravating circumstances in crack cocaine cases and again for the actual presence of such aggravating circumstances in a particular case.
In one respect the “new” 18:1 guideline ratio is more irrational and pernicious than the original 100:1. When the 100:1 ratio was enacted, Congress and the Sentencing Commission did not have access to the overwhelming scientific evidence that they now have. This overwhelming scientific evidence now demonstrates that the difference between crack and powder is like the difference between ice and water — or beer and wine. Can anyone imagine a sentence that is many times harsher for becoming legally intoxicated by drinking wine rather than beer? Of course not.
I also reiterate that the proper methodology, in light of my policy-based rejection of the 18:1 ratio in the Sentencing Guidelines, is to calculate the guideline range under existing law (i.e., using the 18:1 ratio) and any appropriate guideline adjustments or departures, including the “new” adjustments for aggravating and mitigating circumstances, but then to calculate an alternative guideline range using a 1:1 ratio, again including appropriate guideline adjustments or departures, again including the “new” adjustments for aggravating and mitigating circumstances. The court must ultimately use or vary from that alternative guideline range based upon consideration of the 18 U.S.C. § 3553(a) factors in light of case-specific circumstances.
I will sentence defendant Billy Williams, Sr., accordingly.
April 8, 2011 in Booker in district courts, Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (11) | TrackBack
Wednesday, April 06, 2011
Fifth Circuit makes former Enron CEO Skilling's SCOTUS victory Pyrrhic
As detailed in this Reutersreport, "[f]ormer Enron Chief Executive Jeffrey Skilling was unsuccessful in his latest bid to overturn his criminal conviction as a U.S. appeals court called any errors in his trial 'harmless.'" Here is how the Fifth Circuit's opinion in US v. Skilling, No. 06-2088 (5th Cir. April 6, 2011) (available here), gets started:
Former Enron Corporation CEO Jeffrey K. Skilling was convicted of conspiracy, securities fraud, making false representations to auditors, and insider trading. After we affirmed his convictions, the Supreme Court invalidated one of the objects of the conspiracy charge — honest-services fraud — and remanded, instructing us to determine whether the error committed by the district court in submitting the honest-services theory to the jury was harmless as to any of Skilling’s convictions. Because we find that the error was harmless, we affirm the convictions. In addition, for the reasons stated in our previous opinion, we vacate the sentence and remand for resentencing.
So while Skilling's trip to the Supreme Court created some important new federal criminal law, it appears that he will get no substantive relief from the SCOTUS ruling in his favor last year. That all said, Skilling's High Court success might not end up being completely for naught, as he still has a resentencing ahead and perhaps he can contend that he deserves some measure of sentencing credit for his troubles.
Meanwhile, I would be surprised if resentencing is the next development in the long-running Skilling saga. I would expect Skilling's lawyers to seek en banc and/or certiorari review of today's Fifth Circuit panel holding. But if further review of his convictions are not forthcoming, then Skilling's case will become a high-profile resentencing proceeding; as some may recall, the Fifth Circuit reversed in a prior opinion a key guideline determination that led in part to Skilling's original 24+ year (within-guideline) prison term.
UPDATE: Over at White Collar Crim Prof blog, Ellen Podgor has this lengthy new post titled "Commentary on Skilling Remand Decision."
Sunday, April 03, 2011
Detroit's Granny Valjean gets probation and home confinement for Social Security fraud
Last week I asked in this post what would seem a fitting federal sentence for an elderly woman who fraudulently received nearly $120,000 in Social Security benefits over a 20-years period and used the funds to raise and support her grandkids. Here is the news report on her actual sentencing:
In the end, the judge showed her mercy. Mary Alice Austin, a Detroit grandmother who admitted she stole from the government because she needed money to help raise her five grandchildren, avoided a prison sentence Friday when a federal judge gave her probation instead. But Austin will have to pay back $119,000 in restitution and will serve four months in home confinement on a tether.
U.S. District Judge Victoria Roberts issued the sentence after Austin, 67, pleaded for her freedom. She faced 10-16 months in prison for unlawfully receiving her son's disability checks while he was in prison. "Please understand me. Please," a frail-looking Austin said at her sentencing.
Austin told the judge she still has a mentally ill son in an institution to look after. She also talked about the struggles she faced in raising five grandchildren and said desperate times forced her to make a bad choice. "I am remorseful," Austin said. "I got scared. I got very scared."
According to court records, Austin paid someone to pose as her mentally ill son so she could continue receiving his disability benefits while he was in prison. From 1990 to 2009, Austin received nearly $120,000 in benefits -- about $6,000 a year, records show....
At Austin's sentencing, Assistant U.S. Attorney Blondell Morey conceded Austin doesn't present a threat to the public but pushed for prison time. "I think basically Ms. Austin is a good woman, but she did some bad things. ... And she needs to be punished."
Friday, April 01, 2011
Another extraordinary sentencing opinion from Judge Jack Weinstein in multi-defendant crack case
A number of helpful readers have made sure that I did not miss yet another extraordinary sentencing opinion from the desk of US District Judge Jack Weinstein. The opinion in United States v. Bannister, No. 10-CR-0053 (E.D.N.Y. Mar. 24, 2011) (available for download below), runs over 125 pages and here are excerpts from the conclusion (with cites omitted):
Several of the sentences in this case, imposed only because of statutory minima, are disproportionate to the crimes committed and the backgrounds of the defendants. Their excess causes particular concern when applied to youthful defendants. That concern is multiplied by their imposition upon young defendants subject to abuse, poverty, drug and alcohol addiction, unemployment, illiteracy, and learning disability, largely attributable to their backgrounds.
Had the defendants been raised by cohesive, adequate families, most of the difficulties they encountered would probably never have come to pass. Well-resourced, attentive parents would have had the knowledge, ability, and insight to protect their children from many of the difficulties that befell these defendants in their youth, to obtain assistance to deal with their psychological and physical problems, and to obtain crucial opportunities for education, work, and personal growth. Even those with learning disabilities would likely have been provided available resources to overcome their impairments at public expense. That the defendants were born into circumstances without such support is at the center of this tragedy.
As part of defendants‘ sentences, it has been ordered that every reasonable effort be made to provide counseling, drug and alcohol treatment, gambling rehabilitation, anger management therapy, education, and job training while defendants are incarcerated and during supervised release.
Considering the limited resources devoted to such rehabilitative measures, however, it is by no means clear that these aids will be effectively provided. When the defendants are released from prison, they will probably have to return to all of the problems that led them to engage in crime. Whatever tenuous connection they retain to the lawful, supportive world will likely be diminished after years of forced separation in prison. Incarceration will make entry into the job market more difficult. Remaining will be the root problems that have largely brought them to this pass: poverty; dysfunctional families; mental and physical problems; legal and de facto housing segregation; segregated and inferior schools; and an economy that appears to have little need or concern for low- and semi-skilled workers. Such individuals constitute a permanent underclass with almost no opportunity to achieve economic stability, let alone the American dream of upward mobility.
These problems are concentrated among low-income African Americans, but they affect the country as a whole. Our rates of imprisonment, income inequality, and unemployment are either the highest or among the highest of the world's advanced economies, while our rates of food security and life expectancy are among the lowest.
Significant reforms are needed in our sentencing regime. The Fairness in Sentencing Act of 2010 reduced the dubious 100:1 powder/crack ratio to a 17.8:1 ratio. It did nothing to remove the sentencing regime's dependence on arbitrary drug quantities — not just with regard to crack cocaine but other drugs as well — that bear little relationship to the harm a defendant has done to society or to the danger of his inflicting further harm. Harsh, disproportionate mandatory sentences impose grave costs not only on the punished but on the moral credibility upon which our system of criminal justice depends.
Judges approach the grave responsibility of sentencing criminals with all the thoughtfulness and limited insight that their knowledge and wisdom can muster.... Mandatory minimum sentencing provisions, leaving no alternative but lengthy incarceration, prevent the exercise of this fundamental judicial duty. Such laws are ― overly blunt instruments, bringing undue focus upon factors (such as drug quantities) to the exclusion of other important considerations, including role in the offense, use of guns and violence, criminal history, risk of recidivism, and many personal characteristics of an individual defendant. It is difficult to conceive of a system of mandatory minimum sentences that could effectively anticipate and provide for such factors.
For nonviolent, low-level drug crimes, the goals of incarceration — general and specific deterrence, incapacitation, retribution, and rehabilitation — could in most cases be achieved with limited incarceration, through a system of intense supervised release utilizing home visits; meetings with parole officers; a combination of counseling, drug and alcohol treatment, education, job training, and job placement; and electronic monitoring to prevent flight, promote positive choices, and deter and detect incipient crime. Such a regime would likely be more effective in reducing crime and much less costly than imprisonment. Given discouraging economic, social, and psychological conditions, it seems doubtful that the long sentences of incarceration imposed will appreciably reduce crime.
Pragmatism and a sense of fairness suggest reconsideration of our overreliance on incarceration. Though defendants are hemmed in by circumstances, the law must believe that free will offers an escape. Otherwise, its vaunted belief in redemption and deterrence — both specific and general — is a euphemism for cruelty. These defendants are not merely criminals, but human beings and fellow American citizens, deserving of an opportunity for rehabilitation. Even now, they are capable of useful lives, lived lawfully.