Sentencing Law and Policy

Former NFL back Travis Henry gets 3 years in federal prison for drug dealing

From the sport desk comes this afternoon sentencing story from the federal courts in Montana:

A federal judge Wednesday sentenced former NFL player Travis Henry to three years in prison for financing a drug ring that moved cocaine between Colorado and Montana. Henry, 30, of Frostproof, Fla., was arrested by federal drug agents last October — just a few months after the running back’s release from the Denver Broncos.

He pleaded guilty in April to a single count of conspiracy to traffic cocaine. In handing down Wednesday’s sentence, U.S. District Judge Richard Cebull in Billings also gave Henry five years of probation and recommended he enter a 500-hour drug treatment program.

Completion of the treatment program could knock off up to a year from Henry’s sentence. His attorney, Harvey Steinberg, said that with additional time off for good behavior Henry could be out of prison within 16 months.

Henry has said that at the time of his arrest, he was struggling to keep up with child support payments after fathering at least nine children with nine women.  But Cebull said it was Henry’s addiction to marijuana that destroyed the his career and ultimately landed him in federal court.

“This is a unique case in that you’re a unique individual. You’re a heck of a football player,” Cebull said. “You are not unique in this sense: your drug habit.” Cebull and the defense described Henry as a minor player in the Denver cocaine ring and said he had been ensnared in the conspiracy by a friend....

Defense attorney Steinberg had asked for leniency and said Henry turned to cocaine trafficking out of desperation.  He said Henry went into a “downward spiral” after losing $40,000 in drug proceeds that were stolen from a house in Billings.

Assistant U.S. Attorney Joseph Thaggard argued for a sentence of at least 33 months. “Mr. Henry did have it all, in a sense, and he lost it. That’s unfortunate,” Thaggard said.  “The bottom line is this was a significant conspiracy to move a substantial quantity of drugs.”

"Cyberbully" Lori Drew scheduled to be sentenced in federal court this afternoon

This AP article, headlined "Sentencing scheduled for Mo. mom in MySpace hoax," reports that the rescheduled sentencing of Loi Drew is slated for this afternoon.  This ABCNews feature provides some of the pre-sentencing basics:

U.S. District Judge George Wu had earlier postponed Drew's sentencing, saying he wanted to review testimony by prosecution witnesses....

Drew was convicted in November of three misdemeanor counts of unauthorized access to computers for violating MySpace's terms of service. She was acquitted of more serious felony charges of intentionally causing emotional harm while accessing computers without authorization. She was charged in Los Angeles because MySpace's computer servers are based there.

Federal prosecutors charged Drew under the Computer Fraud and Abuse Act, which bans unauthorized access to computers and has previously been used to combat computer hacking, for violating MySpace's terms of service. Drew's lawyers and outside legal experts have argued that the unusual prosecution could broaden the scope of what's considered criminal conduct on the Internet.

As detailed in the posts linked below, there are lots of interesting issues for sentencing fans to be found in this controversial case:

• Friday forum: What sentence would you impose on Lori Drew, the MySpace bullying defendant?
• Juror says publicly that she wanted MySpace bullying defendant sent to prison
• Very different sentencing recommendations in the Lori Drew cyberbullying case
• Prosecutorial power, victims rights, sentencing judgments and judicial empathy
• Any last-minute predictions about the Lori Drew cyber-bullying case?

Judge Kent (finally!) resigns as he is served impeachment papers in prison

Thanks to this post from How Appealing linking all the press coverage, I see that convicted felon Judge Samuel Kent made some news from his prison cell this afternoon.  Here is a report from the Houston Chronicle:

U.S. District Judge Samuel Kent resigned via an unusual no-frills letter that he hand-delivered in prison to two Senate officials who had come to serve a summons on him as part of ongoing impeachment proceedings in the Congress of the United States.

The resignation of Kent, a convicted felon who had continued to collect his $174,000 a year salary in prison, was announced to the surprised participants at the first meeting of the Senate’s impeachment trial committee on Thursday afternoon in Washington D.C.  The committee is chaired by Senator Claire McMcCaskill, D-Missouri, who announced Kent had handed in a resignation, effective June 30th, 2009, on plain paper to the Senate’s sergeant-at-arms during an official prison visit.

Kent had earlier offered to resign in mid 2010 -- a move that angered officials in the House of Representatives who quickly voted to impeach him rather than let him collect his salary for the first year of his 33-month sentence. He could only be removed from office after a trial in the U.S. Senate.  Kent pled guilty earlier this year to obstruction of justice and admitted to sexually molesting two women who worked for him when he served as the lone federal judge in Galveston....

Congressman Jim Sensenbrenner, R-Wisconsin, who served as one of the House managers for Kent’s impeachment, told the Chronicle Thursday that he was “pleased to learn that Judge Kent has resubmitted his resignation, this time effective on June 30, 2009.”

“Kent’s realization that we would not allow him to take advantage of the system proves that the system works and justice has been served,” he said. “ I hope this process reminds other judges that they are not above the laws they took an oath to uphold. I hope the women Mr. Kent assaulted will find some closure in this man being behind bars and no longer being able to serve on the bench or collect a taxpayer-funded paycheck.”

Senate Majority Leader Harry Reid and Senate Republican Leader Mitch McConnell said that the original letter of resignation would be delivered to the President and a certified copy to the House of Representatives. In separate statement, House impeachment managers and Senate leaders said that after Kent’s is accepted by the President, first the House of Representatives and then the Senate would determine what -- if any -- further action is necessary.

Related posts on the Kent proceedings:

• Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)
• "Is Kent getting off easy?"
• More questions and fall-out following Judge Kent's guilty plea
• Latest notable news surrounding former judge (now felon) Sam Kent
• Any predictions on former Judge Sam Kent's sentence? UPDATE: 33 months
• Latest news on impeachment process for former Judge Kent
• Interesting materials from the hearing surrounding impeachment of Judge Kent
• Judge Kent's letter discussing judicial activism, isolation and substance abuse
• Judge Samuel Kent finally heading to prison today

Judge Kent impeached by House of Representatives

Here is an example of unique form of collateral consequences of a conviction: "The House today impeached imprisoned U.S. District Court Judge Samuel B. Kent and sent his case to the Senate for trial."  This Houston Chronicle article provides more details:

The Senate is expected to quickly convene a trial – possibly within a matter of weeks – to cut off the judge’s $174,000 annual federal salary.

The House overwhelmingly adopted four articles of impeachment against the 59-year-old jurist on rapid-fire roll call votes over the course of 30 minutes.  The vote on the first article of impeachment was 389-0. Not a single member of the House spoke on Kent’s behalf.

The charges accused Kent of abusing his power as a judge by sexually assaulting two female court employees as well as lying about his conduct to a judicial inquiry, the FBI and the Justice Department.

Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee that urged impeachment, called Kent’s conduct “shocking and shameful.”...  Rep. Louis Gohmert, R-Tyler, decried “the games that were played” by Kent as he tried to retain his post and the salary that goes with it even though he is in prison.

The House has last impeached a federal judge in 1989.  A total of 13 judges have faced impeachment proceedings in the House since 1803, seven of whom were subsequently convicted by the Senate and removed from the bench.

Kent entered a federal prison medical facility in Ayer, Mass., on Monday to begin a 33-month felony sentence on one count of obstruction of justice following a plea bargain that dropped five other charges.  Kent is the first federal judge to serve prison time since 1991.

Related posts on the Kent proceedings:

• Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)
• "Is Kent getting off easy?"
• More questions and fall-out following Judge Kent's guilty plea
• Latest notable news surrounding former judge (now felon) Sam Kent
• Any predictions on former Judge Sam Kent's sentence? UPDATE: 33 months
• Latest news on impeachment process for former Judge Kent
• Interesting materials from the hearing surrounding impeachment of Judge Kent
• Judge Kent's letter discussing judicial activism, isolation and substance abuse
• Judge Samuel Kent finally heading to prison today

One notable example of a pro athlete not getting a sentencing break (and of jury sentencing)

While lots of commentators are questioning the sentencing leniency shown to Donte Stallworth, this story from Texas provides evidence that former pro athletes do not always get sentencing breaks:

A former New York Yankees outfielder was sentenced to 45 years in prison Wednesday for sexually assaulting a 12-year-old girl in Tarrant County, ending what one prosecutor described as "a reign of terror over girls."

Although Mel Hall Jr., 48, was convicted only in the case of the 12-year-old, whom he had coached in basketball in the late 1990s, four more women testified during the trial’s punishment phase that he had victimized them, too, in the past two decades. Hall coached three in either basketball or softball. The fourth was a former Connecticut woman who had a four-year relationship with Hall that began when she was 15 and he was playing for the Yankees....

Among the interesting aspects of this story is that Texas uses jury sentencing even for a non-capital case like this one:

Jurors who had deliberated 90 minutes to find Hall guilty took even less time — 75 minutes — to decide his sentence Wednesday. Hall received 40 years in prison on each of three counts of aggravated sexual assault of a child, and five years each on the two counts of indecency with a child....

Defense attorney Brady Wyatt expressed disappointment after the trial. "For all the good that this man has done in his life, it’s an excessive sentence," he said. "For all the people he’s positively affected — it doesn’t seem the jury took that into adequate consideration."...

On Tuesday, jurors had heard from two other women — another basketball teammate of the girl, who said Hall had sex with her when she was 14 (charges are pending in that case) and a woman who said that Hall, in 1989, began a public relationship with her when she was 15. Her prom picture with Hall was featured in a Yankees player yearbook.

Several witnesses and a love letter introduced into evidence also alluded to a relationship Hall had with a 17-year-old girl after he was arrested in June 2007. "What was his weapon? Trust," D’Avignon told jurors in closing arguments. "Over and over again, he shook the hand of a parent and said, 'It’s OK. I’ll take care of them. I’ll make her a better person.’ Instead what he did was rob them of their innocence and change the scope of their lives."

Wyatt had asked jurors to sentence Hall to probation or a minimal prison sentence, reminding them of witnesses, including Hall’s ex-wife and two of his daughters, who described him as a good father, coach and man. "He’s not the guy jumping out from behind a corner with a knife and sticking it to your throat. He’s not the guy pulling the trigger in the 7-Eleven, ending somebody’s life," Wyatt said. "He’s not the guy hiding in the back seat of a woman’s car to assault her. He’s not that guy."

Then prosecutor Christy Jack rose to tell jurors that Wyatt was "exactly right." "And that is why he is so much more dangerous — because he’s Mel Hall," Jack said. "Flamboyant. Charismatic. Everybody idolizes him. "That’s what makes him so very dangerous because you don’t see him coming, and parents are unsuspecting, and he preys on that time after time after time," she said.

Lawyer for Plaxico Burress making much of sweet plea deal given to other NFL receiver

As detailed in this New York Daily News article, the lawyer for Plaxico Burress has wasted no time highlighting that his client ought to be able to get a plea deal with sentencing terms that are as sweet as the terms in Donte Stallworth's plea deal (background here):

Donte Stallworth got 30 days in jail for killing someone driving drunk, while Plaxico Burress is facing 3-1/2 to 15 years in prison for shooting himself in the leg. And Burress' attorney, Benjamin Brafman, doesn't think that's fair.

In an interview Tuesday night on Sirius NFL Radio's Late Hits, Brafman made sure to point out the "real disparity" in those two cases involving NFL wide receivers - a disparity that's now part of his argument for leniency in Burress' victimless crime.

"Donte' Stallworth, who is I think a fundamentally decent man, took a plea in a DWI case in which someone was killed and the jail sentence there was 30 days," Brafman said. "There are other components to the sentence - there'll be probation and community service and house arrest - but they gave him 30 days and someone ended up dying. "In our case there is no victim. So I think I have a powerful argument as to why there should be a lenient sentence here. I just haven't gotten the district attorney to agree with me yet."

Burress, 31, is charged with criminal possession of a loaded and unlicensed weapon in Manhattan - a crime which carries a mandatory minimum sentence of 3-1/2 years. The case was adjourned for the second time on Monday and will resume on Sept. 23. Brafman said that if a grand jury decided to indict Burress and if a plea bargain isn't reached, a trial likely won't begin any earlier than 2010.

Stallworth, a receiver with the Cleveland Browns, was also facing a possible 15 years when he was arrested and charged with DUI manslaughter after he killed Mario Reyes while driving drunk in Florida on March 14.  But yesterday, Stallworth reached an agreement to plead guilty to the charge and was sentenced to 30 days in jail, two years of house arrest (during which he can continue to play football), and eight years of probation.  He also reportedly reached a financial settlement with the victim's family.

"To suggest that in Plaxico's case he should get a two-year sentence, when in a case where someone ends up dead they OK a 30-day sentence, there just seems to be a real disparity there," Brafman said.

I am intrigued to see Brafman going on the offensive here, though I think it is a wise effort to use a potent and prominent story of (undue?) leniency from a plea deal in an effort to force NY state prosecutors to be willing to consider a good deal for his client.  More generally, because I think the Burress case can and should become a great Second Amendment test case, I am also pleased that Burress and Brafman are prepared to go to trial if they cannot get a favorable plea deal in this case.  It will be interesting to see if the Stallworth outcome now makes it easier for Brafman to get Burress a better plea deal.

Some related posts on the Stallworth and Burress cases:

• NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions
• "Main Threat to Burress Is a Sentencing Law"
• Starting to make the Second Amendment case for Plaxico Buress  
• Interesting data on the application of NY gun law for Plaxico's consideration
• Talk of a plea deal to resolve gun charges against Plaxico Burress
• NFL update: More on Vick's release ... while wondering about Plaxico's fate
• NFL receiver charged with DUI manslaughter in Florida, while MLB pitcher gets wrist slapped in Nebraska
• NFL player gets very short jail term for drunk driving killing

NFL player gets very short jail term for drunk driving killing

This updated article from the Miami Herald, headlined "Donte' Stallworth gets 1 month in jail, 2 years house arrest in DUI death," provides the latest celebrity sentencing news that gets me all riled up again about the leniency too often shown to drunk drivers.  Here are the sentencing basics:

Accepting responsibility for the drunk-driving crash that killed a pedestrian on Miami Beach, NFL player Donte' Stallworth pleaded guilty Tuesday and was sentenced to serve one month in a Miami-Dade County jail. Stallworth, 28, was immediately taken into custody.

After he gets out, Stallworth will serve two years of house arrest followed by eight years' probation, according to his plea deal. He will also lose his driving privileges for life and have to perform 1,000 hours of community service.

Stallworth has also agreed to pay an undisclosed sum to the Reyes family. ''I will continue to bear this burden the rest of my life,'' Stallworth told Miami-Dade Circuit Judge Dennis Murphy, who imposed the sentence.

The Cleveland Browns wide receiver was charged with DUI manslaughter in the death of Mario Reyes, 59, a crane operator who was crossing the MacArthur Causeway on the morning of March 14 to catch the bus home when he was struck and killed.

Stallworth, driving a black Bentley, had a blood alcohol level of .126, well above the legal limit, according to prosecutors. He had been drinking at a posh Miami Beach nightclub earlier that morning.

Prosecutors filed formal charges June 4, and Stallworth had pleaded not guilty.  The unusually speedy end to the case came at the urging of the Reyes family, which wanted to resolve the matter to avoid further emotional trauma.

In offering the deal, prosecutors considered Stallworth's clean driving record, remorse for Reyes' death and his cooperation with investigators.

This very short jail term strikes me as insufficient for killing someone while driving drunk, especially since drunk driving is a deterrable offense that ends lots of innocent lives unnecessarily.  Though the house arrest and other parts of the sentence make the sanction more severe than just a month in jail, the message that will resonate with the average citizen is that the "price" of drinking and driving and killing is merely a month in jail.  I wonder how many innocent lives this lenient sentence might cost as football fans now have even less of a reason to give much thought to finishing that extra beer before driving home after the big game.

I get aggravated about undue leniency in this context in part because because I represent clients sentenced to so much more prison time for doing what strikes me as a much less serious offense purportedly for the sake of general deterrence.  Consider, for example, my client Weldon Angelos is now serving his sixth year of his 55-year sentence for dealing marijuana.  Or consider the sentencing fate of other NFL players who committed seemingly less serious crimes: Michael Vick got years in federal prison for dog fighting and Plaxico Burress is facing years in state prison for shooting himself.  But Donte' Stallworth gets only a month for killing an innocent pedestrian while drinking and driving.

Of course, the real back-story here seems to involve the victim's family being happy to get a (huge?) pay-off rather than a long prison term.  As I often stress in other settings, some victims will prefer funds and finality to a long sentence.  I do not begrudge the Reyes family for caring more about funds and finality in this setting, but I am troubled that prosecutors and the sentencing judge did not see the potential value of sending a more potent general deterrence message through a longer jail sentence in this case.

Some related posts on sentencing drunk drivers:

• Shouldn't we be much, much tougher with drunk drivers?
• Tougher (but still not tough enough?) on DUI
• Getting tougher on drunk driving
• Why do we worry so much more about sex offenders than drunk drivers?
• Technology versus toughness to combat drunk driving
• Undue leniency for drunk drivers?
• More discussion of leniency for drunk drivers
• Is capital punishment for drunk driving morally required?
• More examples of undue leniency shown to repeat drunk drivers
• Another drunk driving sentencing story we can follow on the sports pages
• NFL receiver charged with DUI manslaughter in Florida, while MLB pitcher gets wrist slapped in Nebraska

Judge Samuel Kent finally heading to prison today

Thanks to this post at How Appealing, evenyone can catch up on all the latest news about Judge (and convicted felon) Samuel Kent, who is due to report to prison today.  This recent article by Mary Flood in the Houston Chronicle provides a glimpse into Kent's immediate future:

Disgraced federal judge Samuel Kent is scheduled to report Monday to a Massa­chusetts prison that specializes in care for felons with medical or mental health problems. He’ll join a mobster who recently appeared in court by video from a prison wheelchair, a number of child pornographers, embezzlers and drug abusers, among the 1,300 or so others.

Kent is scheduled to turn himself in to the Devens Federal Medical Center in Ayer, Mass., about 40 miles west of Boston. He’s due by 2 p.m. Monday, a week shy of his 60th birthday. The judge, who is also facing a fast-tracked impeachment by the U.S. Congress, pleaded guilty to obstructing justice by lying to a judicial panel about his repeated sexual molestation of two former female employees. Kent admitted his assaults and was sentenced to 33 months in federal prison.

Devens features a camp, which offers some sense of freedom, and a hospital built in the former military hospital in the decommissioned Fort Devens. The spot is likely most famous for being ground zero during the influenza pandemic of 1918. “As a practical matter Devens has low security people,” said Alan Ellis, a San Francisco-based lawyer who wrote the Federal Prison Guidebook. “If he needed a hospital and he were a greater risk, he’d be in Springfield, where John Gotti was at the end of his sentence.”

Devens prisoners who have made headlines in the last few years include pornographers, money-launderers, thieves and quite a few minor public officials or civic leaders sentenced for a variety of white-collar offenses.

Related posts on the Kent proceedings:

• Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)
• "Is Kent getting off easy?"
• More questions and fall-out following Judge Kent's guilty plea
• Latest notable news surrounding former judge (now felon) Sam Kent
• Any predictions on former Judge Sam Kent's sentence? UPDATE: 33 months
• Latest news on impeachment process for former Judge Kent
• Interesting materials from the hearing surrounding impeachment of Judge Kent
• Judge Kent's letter discussing judicial activism, isolation and substance abuse

Why exactly has former Gov. Spitzer avoided criminal prosecution for his many crimes?

As detailed in local coverage here and here, the last sentencing for those prosecuted for running Emperor’s Club VIP, the high-priced call-girl ring frequented by former New York Governor Eliot Spitzer, took place yesterday in federal court.  And, as detailed in this New York Times article, Spitzer’s extensive involvement with the ring’s prostitutes were revealed as part of the hearing:

Mr. Spitzer, according to the documents and the lawyer’s comments, met regularly with Emperor’s Club prostitutes, sometimes in cities outside New York and Washington, over 18 months to 2 years, using a variety of aliases and paying with postal money orders....

The records unsealed on Monday at the sentencing of the booker, Temeka Rachelle Lewis, 33, included the prosecution’s letter detailing her “substantial assistance” to their investigation and her defense lawyer’s sentencing memorandum.

In the memorandum, Ms. Lewis’s lawyer, Marc Agnifilo, wrote that she “provided the government with the names of hotels, the approximate dates of meetings, the names of women the governor saw, different names the governor utilized and different ways the governor paid for these sessions.”

The information, he wrote, also included the cities where the liaisons occurred, the period during which they occurred, the regularity with which they occurred and how he wanted the hotel rooms to be booked and reserved, “presumably to conceal his involvement.”

Ms. Lewis pleaded guilty in United States District Court in Manhattan on May 14, 2008, to conspiring to promote prostitution and to helping launder the rings proceeds. On Monday, Ms. Lewis told Judge Shira A. Scheindlin that she deeply regretted her decision to break the law, calling it “a thoughtless, careless, selfish decision.” “It was wrong,” she added, saying that she “was solely responsible for the situation.”

Judge Scheindlin responded by saying, “Thank you, Ms. Lewis; nicely put.” The judge then sentenced her to one year of probation.

After the hearing, Mr. Agnifilo spoke to reporters in the courthouse hallway and elaborated on the memorandum and his comments in court.  He said that over 18 months to 2 years, the governor had arranged “several different liaisons” with women working for the Emperor’s Club.  The assignations, he said, took place in cities other than New York or Washington, and the governor paid using postal money orders, a method he called “relatively unsophisticated” and an indication that Mr. Spitzer was spending his own money.

He said information his client had provided helped prosecutors determine that Mr. Spitzer had not used government or campaign money to pay for sex, and thus helped lead to the government’s decision not to charge him.

My understanding is that jurisdictions frequently decide to prosecute only those persons who run prostitution rings and not all of its customers.  Nevertheless, if prosecutors hope to deter this economic crime, I think a lot of good could have come from going after a high-profile, repeat customer like Spitzer. 

If the evidence showed that Spitzer had only "experimented" with the Emperor’s Club, then I suppose this prosecutorial declination would seem more reasonable.  But, given the evidence that Spitzer was a repeat long-time customer who traveled far and wide to commit his crimes, I am troubled by his ability to avoid all criminal liability.  In the end, then, I cannot help but now see this case as yet another prominent example of prosecutorial bias enabling a rich and powerful white guy to escape formal legal consequences for his egregious criminal behavior.

Latest news on impeachment process for former Judge Kent

This new story from the Texas Lawyer, headlined "House Task Force to Hold Hearing on Impeachment of Federal Judge," provides the latest news on the status of former judge, and now felon, Samuel Kent. Here is how the story starts:

Samuel B. Kent is set to report to federal prison on June 15, but even before the disgraced retired U.S. district judge begins to serve a 33-month sentence, the U.S. House will crank into high gear proceedings that could lead to Kent's impeachment.

The House Judiciary Committee Task Force on Impeachment has scheduled an evidentiary hearing on Kent's impeachment for Wednesday in Washington, D.C.  Kent as well as Cathy McBroom and Donna Wilkerson -- the two former staff members he has admitted to sexually assaulting, as part of pleading guilty to obstruction of justice -- will testify, according to two Republican staff counsel for the committee. Arthur Hellman, a professor at the University of Pittsburgh School of Law who is an expert on judicial discipline, also is scheduled to testify about the impeachment process, the staff counsel say.

Related posts on the Kent proceedings:

• Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)
• "Is Kent getting off easy?"
• More questions and fall-out following Judge Kent's guilty plea
• Latest notable news surrounding former judge (now felon) Sam Kent
• Any predictions on former Judge Sam Kent's sentence? UPDATE: 33 months

UPDATE:  This new article in the Texas Lawyer reports that Kent has now submitted a formal resignation to President Obama (but effective June 1, 2010!), apparently in the hope that impeachment proceedings will not take place:

One of the reasons the House is moving quickly to impeach Kent is because he is still receiving his $174,000-a-year judicial salary, two Republican staff counsel for the House Judiciary Committee told Texas Lawyer last week.  The only way to stop his salary is through impeachment or through Kent's voluntary resignation, they said.

[Kent's lawyer Dick] DeGuerin say Kent decided to resign "to try to save the embarrassment that these useless hearings would have. That's embarrassing for the judicial system as well as everybody involved."

An official with the House Judiciary Committee who requests anonymity says the June 3 hearing will go on as scheduled and the impeachment process will be swift.

House Judiciary Committee Ranking Member Lamar Smith, R-San Antonio, says "Judge Kent's own actions continue to prove that he is unworthy of public service.  By choosing to resign effective a year from now, Judge Kent is attempting to secure a year's salary, paid for by the American taxpayers, while he sits in a prison cell as a convicted felon.  This is an outrageous abuse of authority and defies the very principles of justice Judge Kent swore to uphold.  Ensuring that a corrupt judge does not receive another penny of taxpayer dollars is one of the most important jobs for this Congress and a priority for the Judiciary Committee."

"New Casey Anthony attorney is death-penalty expert"

The title of this post is the headline of this local article providing some interesting sentencing-related news in a high-profile murder case.  Here are the particulars:

The newest attorney to join Casey Anthony's defense team is a death-penalty expert from Chicago who has tried more than 130 homicide cases, her legal team announced today. Professor Andrea D. Lyon is a clinical professor of law at the DePaul University College of Law in Chicago, where she also directs the law school's Center for Justice in Capital Cases, according to a news release.

"Professor Lyon has tried over 130 homicide cases. A former Cook County Public Defender in Illinois, she served as chief of the public defender's homicide task force," the statement said. "In 1990 she founded the Illinois Capital Resource Center and served as its director until joining the University of Michigan Law School faculty in 1995."

Anthony's defense team needed to bring on a new attorney because her lead attorney, Jose Baez, is not qualified to try death-penalty cases under state law.

According to a profile published in the Chicago Lawyer magazine in August 2007, Lyon had a perfect record of winning life sentences in each of the capital cases she's taken through the penalty phase, which at that time was 19.

In the magazine profile, Lyon described herself as a "'naturally dramatic person.'" Lyon noted a death-penalty case she tried in which the prosecution filed a motion to preclude her from crying in front of the jury, and also from making the jury cry.

Lyon said she sees the death penalty as a "'failed program,'" the article said. "'It does not deter crime. It costs more, not less,'" Lyon was quoted as saying. "'It doesn't do any of the things it promises to do. If it brought people back to life, I could see the point of it. If it could fix something, I could see the point of it. But it doesn't fix anything. It just makes us all more barbarous.'"

Lyon has a book slated to be published in January titled "Angel of Death Row: My Life as a Death Penalty Defense Lawyer," according to her Web site. "This is my story -- the story of the first woman in the nation to serve as lead attorney on a death penalty case. And it is also the story of my clients -- their lives, not just the acts they were charged with," the Web site states.

The latest sentencing news from MTV

MTV has this new report on the start of rapper TI's federal prison sentence.  Here are some particulars:

T.I. turned himself in Tuesday (May 26) at an Arkansas federal prison, where the rapper will begin serving a 366-day sentence stemming from his 2007 arrest for attempting to illegally attempting to purchase firearms in Atlanta.

According to several reports, Tip is now in custody at the low-security wing of the Forrest City Federal Correctional Complex, where the rapper will circulate with the rest of the inmates without preferential treatment....

Last week, the rapper's lawyers had requested a two-week delay in the sentence, and hoped the rapper could serve his term at a facility closer to his home in Atlanta. That request was denied on Friday.

Are federal supermax prisons tough enough for terrorist detainees?

According to this new AP article, which is headlined "Obama says US prisons tough enough for detainees,"President Obama views federal supermax prisons to be tough enough for government work.  Here is part of an AP report on the President's security speech today:

President Barack Obama said Thursday some of the terror suspects held at Guantanamo would be brought to prisons in the United States despite fierce opposition in Congress. He promised to work with lawmakers to develop a system for imprisoning detainees who can't be tried and can't be turned loose.

"There are no neat or easy answers here," Obama said in a speech in which he pledged anew to "clean up the mess at Guantanamo" that he said the nation had inherited from the Bush administration. Obama conceded that some of the detainees would end up in U.S. prisons and insisted those facilities were tough enough to house even the most dangerous inmates....

Obama noted that roughly 500 detainees already have been released by the Bush administration. There are 240 at Guantanamo now.... "I can tell you that the wrong answer is to pretend like this problem will go away if we maintain an unsustainable status quo," Obama said. "As president, I refuse to allow this problem to fester. Our security interests won't permit it. Our courts won't allow it. And neither should our conscience."

Obama said his administration was in the process of studying each of the remaining Guantanamo detainees "to determine the appropriate policies for dealing with them."

"Nobody has ever escaped from one of our `supermax' prisons which hold hundreds of convicted terrorists," Obama said....

He described this [detainee] group as those "who cannot be prosecuted yet who pose a clear danger to the American people."

"I want to be honest: this is the toughest issue we will face," Obama said.  He said that the his administration would "exhaust every avenue that we have" to prosecute detainees but there would still be some left "who cannot be prosecuted for past crimes" yet remain a threat. Among these, he said, are prisoners who have expressed allegiance to Osama bin Laden "or otherwise made it clear they want to kill Americans."

"So going forward, my administration will work with Congress to develop an appropriate legal regime" to handle such detainees "so that our efforts are consistent with our values and our Constitution."

Though I have never actually served time either in a federal supermax facility or at Guantanamo, my sense is that inmate life at a federal supermax facility is actually tougher than inmate life at Guantanamo. But I am basing this statement on mostly third-hand reports.  Indeed, I would be grateful to hear from anyone representing persons in a federal supermax facility and/or at Guantanamo about their impressions about which locale is "tougher" for those held there.

NFL update: More on Vick's release ... while wondering about Plaxico's fate

For all you reentry fans, here is the latest news from ESPN about Michael Vick's imminent release from federal prison:

Concerned about Michael Vick's security, the federal bureau of prisons remains secretive about exactly when he will leave the federal penitentiary after serving 23 months for a dogfighting conspiracy. The suspended NFL quarterback's release could come under the cloak of darkness, sources close to Vick told ESPN's Kelly Naqi.  Paperwork is being processed Tuesday and Vick is expected to leave prison sometime Wednesday.

Upon his release, Vick will travel to his home in Hampton, Va., about a 19-hour trip if he chooses to drive. He will not be escorted by federal authorities and must report into the probation office in Norfolk on Friday, at which time he'll begin serving home confinement. For two months, the suspended NFL star will be largely confined to his home and will wear an electronic monitor that allows federal probation officials to track his movements. He is expected to be released from federal custody on July 20....

Vick will be allowed to go to his full-time construction job and will likely be allowed about five hours a week for other court-approved activities, according to Ed Bales, managing director of Federal Prison Consultants, an inmate rehabilitation advocacy group.

Permissible activities for inmates on home confinement typically include things like medical appointments, religious obligations and meetings with probation officials. No dinners out. No chilling at a friend's house. And definitely no bars. "He's going to be pretty much read the riot act: 'If we catch you in one situation like that, it's back to you know where,' " Bales said.

One restriction tailored specifically for Vick for his three years of supervised probation: He can never again own a dog.  U.S. District Judge Henry Hudson already made that decision when he sentenced Vick.

I did not realize a condition of Vick's supervised release prohibited dog ownership.  I guess Vick can have a cat, and I sure hope he does not get drawn into the ugly clandestine world of cat juggling.

Meanwhile, while looking for Vick news, I came across this articlenoting that the Chicago Bears are talking about signing Plaxico Burress, who apparently "has a June 15 hearing stemming from felony gun charges."  Given that New York state prosecutors seem disinclined to let Burress plead to anything that does not include at least a year in prison, I find it strange (and perhaps telling) that NFL teams and reporters still do not seem to fully realize that Burress could end up spending as much if not more time behind bars as Vick has simply for possessing a gun in the wrong place and the wrong time.

Any last-minute predictions about the Lori Drew cyber-bullying case?

As detailed in this new Los Angeles Times posting, Lori Drew, who was "convicted of committing a hoax on the social networking site MySpace that led to the suicide of a 13-year-old girl, is scheduled to be sentenced this afternoon in federal court in downtown Los Angeles."  As I have highlighted in prior posts, there are lots of interesting legal issues and sentencing questions raised by this case.  In addition to the basic question of what sentence Drew might/should be given for her three misdemeanor convictions, there is the preliminary issue of whether her convictions should be dismissed and the procedural issue of whether her crime has "victims" who should be permitted to testify at her sentencing hearing.

Just for kicks, I will make some last-minute predictions (that might soon look silly):  I predict that Drew's motion to dismiss is denied, that the victims get to testify at her sentencing, and that Drew gets a sentence of a few months of home confinement.  But this is just wild speculation.  Any other guesses

Some related prior posts:

• Friday forum: What sentence would you impose on Lori Drew, the MySpace bullying defendant?
• Juror says publicly that she wanted MySpace bullying defendant sent to prison
• Very different sentencing recommendations in the Lori Drew cyberbullying case
• Prosecutorial power, victims rights, sentencing judgments and judicial empathy

UPDATE:  Apparently the District Court will keep Lori Drew's legal limbo for at least another 6 weeks.  As this new Wired report now explains, following "an hour of discussion with prosecutors and Drew’s defense attorney, U.S. District Judge George Wu indicated he was still weighing a defense motion to overturn the jury verdict in the case and that he needs to review transcripts from the trial to weigh both the motion to overturn and the sentencing.  Sentencing is now set for July 2nd."

Prosecutorial power, victims rights, sentencing judgments and judicial empathy

Two very different post by Orin Kerr at The Volokh Conspiracy have me thinking this morning about all the topics in the title of this post.  Here are the links:

• Additional Sentencing Briefs in Lori Drew Case

• Legal Ambiguity, Empathy, and the Role of Judicial Power

The first post provides links to the fascinating supplemental sentencing briefs in the Lori Drew cyber-bullying case.  There are lots of remarkable aspects to those briefs, perhaps the most notable being that federal prosecutors are seeking a statutory max of 3 years in prison for Drew for three misdemeanor convictions and that they are pressing a very broad interpretation of the CVRA (no doubt because a vocal "victim" is going to support their sentencing suggestions).  In response, the defense's legal team (which includes Orin Kerr) quotes from Attorney General Robert Jackson's famed 1940 speech about abuses of prosecutorial power and complains repeatedly about the fact that "the goal of the government’s case has been to make Lori Drew the public face of cyberbullying." 

I could go on and on about these two remarkable briefs in what is a truly remarkable case, but folks should just read them here and here.  I would, of course, welcome comments on the legal specifics, as well as whether there is anything wrong with the government’s efforts "to make Lori Drew the public face of cyberbullying."

After I read these sentencing briefs and struggling with all the legal and policy issues they present, I then read the second post from Orin about legal ambiguity and the ways in which empathy is being discussed in connection with President Obama's SCOTUS nominee decision.  Especially after having my mind swimming with all the fascinating and challenging questions raised by the up-coming sentencing of Lori Drew, I was quite surprised and troubled by what a simplistic account Orin gave to the concepts of legal ambiguity and judicial power. 

Here is one part of a comment I added to the first of Orin's posts: "isn't a whole lot of sentencing debate about competing visions of empathy, with prosecutors urging empathy for the victims/society, and defense lawyers arguing for empathy for the defendant?".  Indeed, the more I think about the concept of empathy, the more I am inclined to assert that the issue is not whether a judge should be empathetic, but rather to whom that empathy should be shown in legal rulings and discretionary judgments.

Still more disturbing details emerging (and not emerging) from Kent sentencing

The more I learn about the crimes and sentencing of former federal judge Samuel Kent, the more troubled I am about how this case has been handled by federal prosecutors and the presiding federal judge.  And I remain especially aggravated that Kent will probably end up serving less than two years in federal prison while far less advantaged individuals are serving much more time for seemingly much less serious crimes.

Consider first this potent victim statement post on-line by the Houston Chronicle.  It details how extensively Kent sexually abused one particular court employee, how "he hurt so many people in so many ways," and how his decision to lie repeatedly about his criminal acts further exacerbated the harms suffered by his victims.

Now consider an excerpt from this potent post by lawyer Tom Kirkendall, who attended the sentencing and asks some keen and important questions about how this case was handled by everyone involved:

The first hour or so of the hearing was stupefying as prosecutors and Kent defense attorney Dick DeGuerin argued over objections to the government's pre-sentencing report. The main reason for the boredom was that, for the most part, no one except the lawyers in involved in the case and U.S. District Judge Roger Vinson knew what they were talking about. That vacuum of information was a direct result of Judge Vinson's dubious decision to keep a substantial amount of the information about the charges against Kent under seal and away from public scrutiny.

Judge Vinson's decision in that regard might have been somewhat defensible had the two victims of Kent's sexual assaults requested secrecy to preserve what little privacy that they could salvage from this ordeal. But neither of the victims requested such treatment, and my sense is that Kent didn't want it, either.

So, Judge Vinson decided to conduct this case largely outside the public eye for his own reasons. In my 30 years of practicing law, I have never seen the volume of information in a case placed under seal as was done in this case.

In sentencing Kent, Judge Vinson claimed that he was upholding the justice system by showing that even a powerful judge is not above the law. Unfortunately, he undermined that same system by preventing the public from learning the details of the accusations against Kent and Kent's responses to those allegations. Although the first part of the hearing could have induced a snooze, the pace picked up dramatically when the two victims of Kent's assaults made their way to the podium to make their victim statements to the court. Both victims were extremely impressive in their presentations, describing the emotional and family carnage that Kent's assaults and abuse of power caused.  We also learned tidbits of information that likely would have been already been revealed had Judge Vinson not maintained such tight control over information... [including that a] "culture of fear" existed among employees at the Galveston federal courthouse as a result of Kent's manipulative behavior and frequent drunkenness....

[N]ow it appears that Kent was drinking heavily for much of the past decade and that he was frequently intoxicated while at the courthouse.... Where were Kent's "friends" who knew about his excessive drinking and other personal problems, and were in a position to intervene and help him before it was too late?

What are we to make of the federal government's human resources apparatus that an entire federal courthouse could have been placed under a culture of fear by the abusive behavior of one man?

And doesn't the Fifth Circuit Judicial Council have some explaining to do on why it issued its agreed order of public reprimand of Kent without interviewing either of the victims during the council's investigation?

Finally what are we to conclude about our justice system that the Houston Chronicle -- which, along with its coverage of Hurricane Ike, should have been won a Pulitzer Prize for its reporting on the Kent case -- provides much more information to the public about the crimes of an abusive judge than the prosecution of that judge?

Related posts on the Kent proceedings:

• Any predictions on former Judge Sam Kent's sentence?  UPDATE: 33 months
• More (disturbing?) details emerging about crimes and sentencing of former Judge Kent
• Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)
• "Is Kent getting off easy?"
• More questions and fall-out following Judge Kent's guilty plea
• Latest notable news surrounding former judge (now felon) Sam Kent

More (disturbing?) details emerging about crimes and sentencing of former Judge Kent

The US Department of Justice has this official press release concerning today's federal sentencing of former federal judge Samuel Kent.  It provides this summary review of the charges involved in Kent's indictment and plea:

U.S. District Judge Samuel B. Kent was sentenced today to 33 months in prison for obstruction of justice related to an investigation of a judicial misconduct complaint filed against him....

On Aug. 28, 2008, a grand jury in the Southern District of Texas indicted Kent, who was at that time a sitting U.S. District Judge for the Southern District of Texas, on two counts of abusive sexual contact and one count of attempted aggravated sexual abuse for his alleged assaults in 2003 and 2007 on an employee of the Office of the Clerk of Court identified as Person A.  On Jan. 6, 2009, the grand jury returned a superseding indictment against Kent.  The superseding indictment incorporated the original charges and added three counts: one count each of abusive sexual contact and aggravated sexual abuse, based on Kent’s alleged repeated assaults on another U.S. District Court employee identified as Person B, and one count of obstruction of justice, based upon his obstruction of the Fifth Circuit’s investigation into a misconduct complaint filed by Person A.

On Feb. 23, 2009, Kent pleaded guilty to obstructing the judicial misconduct investigation into his sexual assaults. As part of his plea, Kent admitted that in both 2003 and 2007, he engaged in non-consensual sexual contact with Person A without her permission. He also admitted that he engaged in non-consensual contact from 2004 through at least 2005 with Person B without her permission.

Kent was also ordered to pay a $1,000 fine as well as restitution of $3,300 to Person A and $3,250 to Person B.  Kent was ordered to surrender on June 15, 2009.

The fact that Kent was allowed, on the eve of trial, to plead guilty to only a single obstruction count has always disturbed me.  And information emerging from this new Texas Lawyer article about the sentencing reinforces many of my concerns:

The sentencing hearing included testimony from two former courthouse employees who alleged Kent had assaulted them.  Cathy McBroom, Kent’s former case manager, told Vinson, “I will forever be scarred” by what happened to her in Galveston.

She said that she would avoid Kent at the courthouse when he was intoxicated. “Being molested and groped by a drunken giant is not my idea of an affair,” McBroom said, noting that Kent falsely told others that she was pursuing him.

 The other woman, Donna Wilkerson, who worked as Kent’s secretary, said Kent “maliciously manipulated and controlled everyone around him.” She also said, “My life is forever changed.”

Hmmm... and restitution awards of a few thousand dollars are supposed to be fitting in this case?  For that matter, while I am asking questions about the outcome here, since Kent was allowed to plead only to an obstruction count, I am not sure of the basis for awarding restitution since, technically, the two women that Kent molested were not actually victims of his act of obstruction.  In the end, though, according to the Texas Lawyer article, it seems that the victims are content with outcome:

Following the sentencing, both women said they were pleased with the sentence, with McBroom noting, “You don’t have to put up with it, no matter who the person is.”

Related posts on the Kent proceedings:

• Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)
• "Is Kent getting off easy?"
• More questions and fall-out following Judge Kent's guilty plea
• Latest notable news surrounding former judge (now felon) Sam Kent

Any predictions on former Judge Sam Kent's sentence? UPDATE: 33 months

This article in today's Houston Chronicle indicates that former federal judge Samuel Kent has his sentencing hearing today:

Samuel Kent, who wielded power as a federal judge for 18 years, is very likely to be sentenced to prison today for obstructing justice.  Kent, 59, pleaded guilty in February to obstruction of justice for lying to a judicial committee investigating an allegation he sexually harassed an employee.  The longtime Galveston judge also acknowledged that he’d had nonconsensual sexual contact with two female employees between 2003 and 2007.

Kent came to court this morning with his wife and three others.  He walked through the courthouse front door rather than using the secure back entrance for working jurists.  Prosecutors arrived in court with some of Kent's alleged victims and their attorneys.  The women who brought complaints against Kent cannot testify in court but were interviewed for the pre-sentencing report.

Five criminal charges against Kent related to the sexual contact were dropped.  But all of Kent’s actions are to be considered by Senior U.S. District Judge Roger Vinson of Pensacola, Fla., in determining Kent’s sentence.

The obstruction charge carries a maximum punishment of 20 years in prison.  Prosecutors requested that the man appointed to the bench by President George H.W. Bush in 1990 be sentenced to three years in prison, but Vinson is not bound by that recommendation.

Arthur Hellman, a Pittsburgh-based legal expert in judicial discipline, said Kent’s case will be closely watched.  “It is important because it implicates the ability of the judiciary to police itself,” Hellman said.  “If the sentence is substantially below the three years specified in the plea bargain, some people will say that the judge is going easy on a fellow judge. If the sentence is especially harsh, it will seem that Judge Kent is being made an example because of his position.”...

Judge Vinson handled Kent’s case in a very secretive manner by Houston standards.  Without being asked to do so, Vinson placed a gag order on the lawyers and witnesses to keep the jury from being tainted.  But even after Kent pleaded guilty and there would be no jury, Vinson continued the gag order until media challenged it and Kent could cite no law to keep it in place.  Vinson also had more than 20 sealed events before Kent’s plea.

As I have indicated in prior posts, I fear that former Judge Kent has already been treated too leniently given that he has admitted to illegal sexual conduct with two employees and then lied to fellow jurists when his illegal behavior started to be investigated.  I can think of few other (repeat) sex offenders who would have gotten such a sweet plea deal on the eve of trial and such respectful treatment from the court and federal prosecutors. 

In addition, I sense that the true victims here — the two women subject to former Judge Kent's sexual abuse — have been poorly treated by the federal criminal process despite the recent passage of the Crime Victim Rights Act designed to give them some statutory protections.  I sincerely hope their punishment interests are fully reflected in whatever sentence was recommended by the presentence report and whatever sentence gets imposed by Judge Vinson.

I also hope, writing now as an professor who used this case in a class as an example of the challenges of modern guideline sentencing (see here and here and here), that the guideline calculations in the case become a matter of public record at some point.  Notably, for anyone interested, the students in my class suggested sentences ranging from as low as 6 months and as high as 15 years when I urged them to consider what sentence they might impose without the aid of any guidelines or other sentencing rules beyond the statutory min and max provided for the offense of conviction.

Related posts on the Kent proceedings:

• Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)
• "Is Kent getting off easy?"
• More questions and fall-out following Judge Kent's guilty plea
• Latest notable news surrounding former judge (now felon) Sam Kent

UDPATE:  The article linked above now reports the results of the sentencing: "Samuel Kent, who wielded power as a federal judge for 18 years, was sentenced to 33 months in federal prison today for obstructing justice."  As suggested above, this seems like a pretty lenient sentence given his admitted sexual conduct, but his plea deal revealed that this was all that the federal prosecutors were looking for.  I hope to learn more about the particulars of the proceeding, and I likely will have further comments about this high-profile case if/when more details from the sentencing emerge.

Blagojevich gets a bargain rate for his defense team

This interesting article, headlined "Blagojevich Lawyers Agree to $110-an-Hour Fee Limit ," explains how former Illinois Governor Rod Blagojevich is getting some top-shelf legal help at cut-rate prices:

Ousted Illinois Gov. Rod Blagojevich's lawyers have reluctantly agreed to be paid far below the rate some of them usually charge in return for being allowed to tap his $2.3 million campaign fund.

In court papers filed Friday morning, the lawyers accepted the rate of $110 an hour, which is the legal limit court-appointed lawyers can charge in federal cases. Big-name criminal defense attorneys often work on a flat-fee basis but when computed as hourly rates, their charges can range up to $700 and beyond.

The debate over fees between prosecutors and the Blagojevich defense team headed by attorney Sheldon Sorosky has been dominating developments in the case for weeks.

Blagojevich is charged with scheming to sell or trade President Obama's U.S. Senate seat and use the muscle of the Illinois governor's office to squeeze companies with state business for campaign contributions. He has pleaded not guilty.

So far Sorosky is the only attorney to commit himself in court to represent the now-impeached governor. Others have been said to be waiting to see if they would be paid.  Attorneys say the campaign fund is the only ready source of money to pay fees.

Assistant U.S. Attorney Reid Schar and other prosecutors have argued that it might not even be proper to tap the fund which was meant to bankroll political campaigns -- not Blagojevich's defense against federal corruption charges.  Last week, however, they offered to allow defense attorneys to pay themselves out of the fund as long as they confined themselves to the $110-an-hour rate.  They said that if the attorneys billed the fund at a higher rate, it would soon be exhausted and taxpayers would have to provide the fees for the rest of the case.

U.S. District Judge James B. Zagel, who is presiding over the case, said the defense attorneys would be allowed to take that deal or ask for a hearing on why they should be allowed to bill at a higher rate. They took the $110-an-hour rate.