Sunday, January 19, 2014

Your tax dollars at work in incarceration nation

Two very different recent stories about two very different prisoners have the unifying theme of taxpayers footing the bill.  Here are the headlines and the starts of the stories:

"Federal appeals court upholds Mass. inmate’s right to taxpayer-funded sex change surgery"

A federal appeals court in Boston today upheld a judge’s ruling that a transsexual inmate convicted of murder is entitled to a taxpayer-funded sex change operation as treatment for her severe gender identity disorder. In a ruling that was a first of its kind, a three-judge panel of the US Court of Appeals for the First Circuit said courts must not shy away from enforcing the rights of all people, including prisoners. “And receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox,” the court said.

“Having carefully considered the relevant law and the extensive factual record, we affirm the judgment of the district court,” the court said in a 2-1 ruling, which could still be appealed to the full appeals court or to the US Supreme Court.

"Ex-Michigan Supreme Court Justice Diane Hathaway wants out of Camp Cupcake"

Former Michigan Supreme Court Justice Diane Hathaway, who is serving a one-year sentence for bank fraud, wants out of prison and says her unique status is keeping her confined longer than what’s normal.

Hathaway, in a self-drafted motion filed today, asks U.S. District Judge John Corbett O’Meara to let her out early or allow her to serve the rest of her sentence at home. O’Meara sentenced Hathaway on May 28 to 12 months and one day in prison, plus two years’ probation, after she pleaded guilty to one count of bank fraud in connection with the short sale of her Grosse Pointe Park home.  She reported to prison in August.

She is serving her time in Alderson, W.Va., at a federal facility sometimes referred to as Camp Cupcake because of its relatively comfortable conditions, compared with some federal prisons.  Former Detroit City Council President Monica Conyers also served time there.

In her motion, Hathaway says she would normally be eligible for a move to a halfway house at this point in her sentence, but the Bureau of Prisons won’t consider such a move because of security and safety concerns because she is a former sentencing judge. Instead, she is only eligible to serve the last 10% of her sentence at home, Hathaway said in the motion. “Defendant is being denied equal protection of the law,” Hathaway told the judge.

Lest I be misunderstood, I am not saying that the incarceration costs for these two very different offenders are not worthwhile. Rather, I am just highlighting the (annoying?) reality that just about every interesting prison story in incarceration nation is being funded and fueled by state and federal tax dollars.

January 19, 2014 in Celebrity sentencings, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Tuesday, December 31, 2013

Feds now saying Lynne Stewart should get compassionate release from prison term

This notable new AP story, headlined "Government asks NY judge to release ailing ex-terror trial lawyer from 10-year prison term," provides the grist for a useful final post for 2013. Here are the basics:

A dying former civil rights lawyer convicted in a terrorism case and sentenced to 10 years in prison is entitled to compassionate release because she has less than 18 months to live, prosecutors and the Federal Bureau of Prisons told a judge on Tuesday.

In a letter to U.S. District Judge John G. Koeltl, the government said 74-year-old Lynne Stewart was suffering from breast cancer that has metastasized to the lungs and bones. "Despite aggressive treatment, doctors have advised that her prognosis is poor," the letter said, adding she also has been diagnosed with anemia, high blood pressure, asthma and Type 2 diabetes. Stewart has been undergoing treatment at the Federal Medical Center in Carswell, Texas, as supporters have rallied to get her released. Once released, the letter said, she will live with her adult son in Brooklyn.

Stewart was convicted of helping a blind Egyptian sheik communicate with followers while he was serving a life sentence in a plot to blow up five New York landmarks and assassinate then-Egyptian President Hosni Mubarak. She has been imprisoned since 2009 and wasn't scheduled for release until August 2018.

She was first diagnosed with breast cancer in November 2005. The cancer went into remission but was discovered to have recurred after she was imprisoned. Stewart has written to the judge, saying she doesn't want to die in "a strange and loveless place" and wants to go home.

A previous compassionate-release request was denied in part on the grounds that Stewart had more than 18 months to live, though the judge said he would act promptly if the Federal Bureau of Prisons agreed she had less than 18 months to live and granted a compassionate-release application.

A federal appeals court in 2012 upheld Stewart's 10-year sentence, saying she earned it through serious crimes that she refused to acknowledge. The 2nd U.S. Circuit Court of Appeals said it was fair to boost Stewart's sentence from the two years and four months she was given in 2006. The three-judge panel that had ordered Stewart to be resentenced said it disagreed with her claim that her sentence was "shockingly high." It accused her of exhibiting a "stark inability to understand the seriousness of her crimes."

Arguably the biggest sentencing story of 2013 has been a (slight?) softening around the edges of a very harsh federal criminal justice system, largely as a product of the work of Attorney General Eric Holder. It is thus perhaps fitting that on the last day of 2013, federal officials are now supporting compassionate release for Stewart, only a few years after they succeeded in a multi-year, multi-court fight to seek to ensure she received a lengthy prison sentence that could have ensured she had to die in prison.

December 31, 2013 in Celebrity sentencings, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (33) | TrackBack

Friday, December 27, 2013

As fights over John Hinckley's fate continue three decades after his violent crime, what are enduring CJ legacies or lessons?

Reagan_assassination_attempt_3The question in the title of this post is prompted by this interesting recent Politico piece headlined "Hinckley home for the holidays."  Here are the basics:

John Hinckley will almost certainly be home for the holidays, which will bring much joy to his 86-year-old mother but not to the U.S. Justice Department.  No matter whether there has been a Democrat in the White House or a Republican, the Justice Department has argued against letting Hinckley out of the mental hospital where he has been incarcerated since 1982.

His family, lawyers and a number of psychiatrists and psychologists who have treated Hinckley over the years say he has responded successfully to treatment, is no longer a danger to himself and others, and that he should be allowed more and more days outside the hospital.

Hinckley had been allowed 10 days per month to visit his mother in Williamsburg, Va.  He is not allowed to make visits in Washington because the president of the United States lives in Washington and the last time Hinckley came across a president, Hinckley shot him. Hinckley is also not allowed to visit his sister in Dallas, because the home of former President George W. Bush is a 10-minute walk away.  Even in Williamsburg, Hinckley is trailed by Secret Service agents, and he must carry a GPS-enabled phone that tracks his whereabouts.

On average, a person convicted of a violent crime in America serves about five years in prison.  Hinckley has served 31 years in St. Elizabeths Hospital, even though he was found not guilty of any crime because a jury decided he was insane at the time he shot Ronald Reagan, press secretary James Brady, D.C. police officer Thomas Delahanty and Secret Service agent Timothy McCarthy....

Last week, a federal judge extended the amount of time Hinckley can spend outside St. Elizabeths to 17 days per month.  The seriousness with which Hinckley’s request for added visiting time was treated is indicative of how seriously the government still takes his case: Over a four-month period, lawyers battled for two weeks, and the judge’s decision was an incredible 106 pages long....

The hearing did provide some droll moments.  In arguing that Hinckley was not fit to be outside of his mental hospital for a longer period of time, the government said one of his girlfriends at St. Elizabeths was “floridly psychotic.”  To which Hinckley’s lawyer replied: “Who is he going to meet at St. Elizabeths?”

Hinckley’s case contains some valuable lessons:  The insanity defense is very rarely used in America and usually fails when it is used.  Hinckley succeeded, but what has it gotten him?  More than three decades in a mental hospital may be better than more than three decades in prison, but unlike a prisoner serving a sentence with a maximum number of years, Hinckley, 58, can be locked up in the hospital until he dies.

Before Hinckley shot Reagan, he had been stalking Jimmy Carter.  In October, 1980, Hinckley was arrested at Nashville’s Metropolitan Airport for concealing three handguns and 30 rounds of ammunition in his carry-on luggage.  He paid a fine of $62.50 and was released from custody.  Four days later, Hinckley, who had undergone psychiatric treatment for depression, went to Dallas, where he bought a gun and six bullets at a pawnshop for $47.  Hinckley used this weapon to shoot Ronald Reagan, James Brady and the two law enforcement officers.

Today’s Brady law, which was enacted in 1993 and requires background checks for some gun purchases, is named for James Brady and might have prevented Hinckley from buying that gun.  In 1988, his last full year in office, Reagan endorsed the Brady Bill, even though Reagan was not a fan of gun-control laws.  His personal affection for Brady might have had something to do with it, but Reagan also said it was a good idea to see if a potential gun buyer had “a record of any crimes or mental problems, or anything of that kind.”  The National Rifle Association condemned Reagan’s statement.

St. Elizabeths, built in 1855 as the Government Hospital for the Insane, once housed 8,000 patients.  As the hospital crumbled from neglect, and as laws and attitudes about mentally ill people changed, the population dropped to its current 300 and a new hospital was built in 2010.   St. Elizabeths no longer needs all of its vast 350 acres, where feral cats still roam, some of which are cared for by Hinckley, who often visits PetSmart on his home visits right after he goes to Wendy’s.  About 176 acres of the property will be used for the new $3.4 billion headquarters complex of the Department of Homeland Security.

As most criminal law professors know, one of the legal legacies of Hinckley's case was a significant retrenchment of insanity doctrines in many states. But as Hinckley's own case may highlight, perhaps that it is ultimately a blessing and not a curse even for mentally unstable criminal defendants. And, as most gun control advocates know, Hickley's crime created a uniquely potent person and symbol in support of gun control laws. But as recent high-profile deadly shootings highlight, there is reason to perhaps fear that the US is unable or unwilling to pursue gun control laws that would be likely able to prevent mentally unstable persons from having access to firearms.

December 27, 2013 in Celebrity sentencings, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack

Friday, December 20, 2013

Should elected officials be subject to drug tests? And then forced to resign if they fail?

The questions in the title of this post are prompted by this new Politico article headlined "Trey Radel likely won’t resign after leaving rehab." Here are excerpts:

Despite an eventful two months that saw an undercover cocaine bust and a stint in drug rehab, Florida Rep. Trey Radel (R) doesn’t sound like a man who is going to resign.

On the same day he walked out of a Naples, Fla., drug rehabilitation clinic, the freshman congressman — who pleaded guilty to possessing cocaine in November — said he is wrestling with what he describes as a problem with alcohol, and added that he loves “serving” his southwest Florida constituents.  “I’m excited to begin this process of rebuilding your trust and doing what you elected me to do,” Radel said at the news conference.

Radel, a freshman member of the House, was caught buying cocaine from an undercover federal agent near Dupont Circle in October. Radel bought what’s commonly known as an “eight ball” of cocaine from a federal agent, according to court records.  When he realized he was purchasing the drug from a federal agent, he tried to throw it away, the records detail.  When those agents entered his D.C. apartment, Radel handed over more cocaine. He pleaded guilty to possessing the drug in D.C. court in November, and entered a rehabilitation facility on Nov. 21.  He has been on leave from the House.

Radel pledged to answer all questions at the news conference, but declined to detail the timeline of his cocaine use, or answer questions about why he waited nearly a month between getting caught buying cocaine and revealing it to the public.  Radel said he was not with any other member of Congress when he was caught buying cocaine, and said elected officials should be subject to drug tests.  He said he only used cocaine a handful of times.

The court of public opinion isn’t his only judge. The House Ethics Committee is investigating the incident. Radel pledged to “cooperate” with that inquest “in every absolute possible way that I can.”

December 20, 2013 in Celebrity sentencings, Collateral consequences, Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (8) | TrackBack

Monday, December 09, 2013

Seeking pre-trial sentencing views in high-profile federal murder prosecution of homicidal bride

Graham cliffIn part because federal jury trials for traditional common-law crimes are rare, and especially because this case has already garnered considerable media attention, I am likely to follow closely the high-profile federal murder trial starting today in Montana.  This AP article, headlined "Jury selection begins in newlywed murder trial," provides the basics and sets up the sentencing query of this post:

Jury selection gets underway Monday in the murder trial of a newlywed bride accused of pushing her husband to his death in Glacier National Park just days after their wedding. Jordan Graham has pleaded not guilty to charges of first-degree murder, second-degree murder and making a false statement to authorities in the death of Cody Johnson.

Graham, 22, and Johnson, 25, had been married for eight days when they argued over her doubts about the marriage, prosecutors said.  She texted a friend that she planned to confront Johnson about those doubts the night of July 7.

Graham's trial in U.S. District Court in Missoula is expected to last one to two weeks with dozens of friends, acquaintances and expert witnesses — though no eyewitnesses — scheduled to testify.

Federal prosecutors will attempt to convince jurors that Graham deliberately pushed Johnson to his death, then made up a story about how he was last seen driving off with friends.  Graham's federal public defenders will ask jurors to believe that while Graham thought she married too young, she loved Johnson and was only trying to remove his hand from her arm when he fell off the steep cliff.

Witnesses will describe Graham as a naive, immature and shy woman who deals better with the children she watched over as a day care worker than with most adults, federal public defender Michael Donahoe wrote in his trial brief.  Johnson liked to race cars, drink beer, play softball and hang out with friends, and he changed for Graham when they began dating, Donahoe wrote.  Johnson started going to church and stopped most of his drinking, Donahoe wrote.

Graham may have had misgivings about getting married too young, but that doesn't prove she intended to kill Johnson, Donahoe wrote.  Federal prosecutors have mostly circumstantial evidence in their case to prove the killing was premeditated, he wrote.

Assistant U.S. Attorney Zeno Baucus wrote in his own brief that the killing was premeditated, which can be proven by circumstantial evidence.  That circumstantial evidence — or the "surrounding circumstances" before, during and after Johnson's death — is needed because Graham and Johnson were the only direct witnesses to what happened on the cliff, he wrote.  Graham had told Johnson before the wedding that she had a "surprise" planned for him later that day, Baucus wrote.

After she pushed him, she didn't call police or seek any assistance. Instead, she began sending text messages to friends, planting stories about Johnson's disappearance and talking about her dance moves, Baucus wrote.  Graham initially told investigators that Johnson had driven away with friends the night of July 7.  Three days later, she led park rangers to his body so the search would be called off "and the cops will be out of it," according to prosecutors' court filings....

In the recorded portion [of a police interview], Graham said she and Johnson argued about whether they should have waited longer to get married, and they took that argument from their Kalispell home to Glacier park, according to a transcript.  Graham said Johnson grabbed her arm at one point.   She said she knocked his arm off and pushed him in one motion, causing him to fall from a steep cliff near the Loop trail.  "I think I didn't realize that one push would mean for sure you were over," Graham said, according to the transcript.

As I review these facts, it seems that there is essentially no dispute that Graham pushed her husband off a cliff to his death.  At issue at trial is only what her mens rea was at the time of this push, which in turn will determine whether she is guilty of murder, manslaughter or perhaps not guilty of any homicide charge.

Given these realities, I am eager to hear now some reader perspective on what would be appropriate sentencing outcomes if we assume the best and/or assume the worst about this defendant's mens rea.  If a jury were to conclude she was a premeditated, purposeful killer of her new husband and thus convicts this defendant of first-degree murder, do folks think an LWOP sentence would be justified?  Alternatively, if a jury concludes that the cliff push was a terrible, but still blameworthy, mistake and thus convicts this defendant of involuntary manslaughter, do folks think a short or lengthy prison sentence would be appropriate?

Previous related post:

December 9, 2013 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (26) | TrackBack

Sunday, December 01, 2013

"Death penalty for Boston bomber a complicated question"

The title of this post is the headline of this new piece from USA Today.  Here are excerpts:

The high-security wing at the U.S. Penitentiary in Terre Haute, Ind., now represents an increasingly complicated backdrop for a decision Attorney General Eric Holder is set to make in the next several weeks on whether to pursue the death penalty in the federal government's prosecution of Boston Marathon bombing suspect Dzhokhar Tsarnaev.

There is little argument about the strength of the case against Tsarnaev, charged with 30 criminal counts in connection with the blasts that killed three and wounded more than 260 others.  There are photographs of Tsarnaev allegedly planting explosives at the site of one of the bombings.

Yet the government's record in carrying out the death penalty is mixed at best, and there are conflicting views about whether the often-delayed penalty is an appropriate punishment if the 20-year-old defendant is convicted in the bombing case.  Since the federal death penalty was reinstated in 1988, only three offenders have been executed and none in the past 10 years....

In the case of Tsarnaev, there are other potentially complicating factors at play for the federal government in Massachusetts, a state long opposed to the death penalty.  In September, less than six months after the attack, a poll commissioned by The Boston Globe found that 57% of Boston residents favored Tsarnaev's facing life in prison without parole, while only 33% supported death. The opposition, in the city deeply scarred by the bombing, crossed political lines with Democrats overwhelmingly favoring life in prison at 61%-28% and Republicans more narrowly supporting prison over death at 49%-46%.

"It's one thing for the government to be willing to impose the death penalty; it will be a lot harder to find people in Massachusetts to serve on a jury who would vote for the death penalty," said Andrew Smith, director of the University of New Hampshire Survey Center, which conducted the poll. "It's not terribly surprising given that it is Massachusetts."

Aitan Goelman, a former federal prosecutor who assisted in the Oklahoma City prosecutions, said the federal government's rarely used execution chamber reflects a system "slanted against" execution. From the mandatory pre-prosecution review to determine whether to pursue the maximum punishment to the actual prosecution, Goelman said, there are required thresholds in the federal system that don't exist in most states....

"The system seems to bend over backwards not to have executions,'' said Goelman, though he said he believes that "at the end of the day," Holder will likely certify the Tsarnaev prosecution as a death penalty case. "If you put a bomb down in a crowd, it becomes one of those cases where you say, 'If not now, when do you ever certify a case as a death penalty case?'" Goelman said.

Richard Dieter, executive director of the Death Penalty Information Center, which advocates against the death penalty, said possible considerations that could work in Tsarnaev's favor are his relative youth and whether Tsarnaev's older brother, Tamerlan Tsarnaev, may have pushed him to take part in bombings.... "Justice might approve seeking the death penalty just to keep their options open," Dieter said, referring to a possible strategy to exact a guilty plea from the defendant.

Among those who have little doubt that death should be pursued against Tsarnaev is a former top Boston police official who worked closely on the investigation. "I don't believe in the death penalty in most cases," former Boston Police commissioner Ed Davis said. "I believe it is appropriate in this case. I would caution everyone to wait until all of the evidence comes out. … There is no explanation for what happened here."

I would be very surprised if AG Holder does not approve seeking the death penalty in this case, and I will be similarly surprised if the case is not ultimately resolved through a plea deal providing for an LWOP sentence.

Some prior related posts:

December 1, 2013 in Celebrity sentencings, Death Penalty Reforms, Who Sentences? | Permalink | Comments (18) | TrackBack

Wednesday, November 20, 2013

Congressman pleads guilty and gets quick resolution to local DC cocaine charge

As reported in this Washington Post article, headlined "Rep. Trey Radel pleads guilty on charges of cocaine possession," a new member of Congress discovered how quick and efficient (and humane?) government in the form of the criminal justice system can sometime be.  Here are the notable details:

Freshman Rep. Trey Radel (R-Fla.) pleaded guilty in D.C. Superior Court on Wednesday to a misdemeanor charge of possession of cocaine, after buying the illegal drug outside a restaurant in Dupont Circle late last month.

According to court documents, the first-term congressman “unlawfully, knowingly and intentionally possessed” a quantity of cocaine. Radel was charged Tuesday, following an indictment by a Superior Court grand jury.

Radel and a friend of his met an undercover agent at a restaurant in Dupont Circle at 10 p.m. on Oct. 29, prosecutors said in court. Radel asked the friend and the agent to go with him to his home. The agent declined. Radel then purchased 3.5 grams of cocaine, estimated to be worth $250, from the agent in his car.

After the transaction was made, officers stormed the vehicle, and Radel dropped the drugs. He allegedly invited the officers back to his apartment to discuss the incident. When officers went to the home, they found a vial containing cocaine.

Judge Robert S. Tignor sentenced Radel to one year on probation while he undergoes treatment in Florida. Radel said he is also seeking counseling in the District. Tignor said he took into account that this was Radel’s first offense. If Radel violates the probation, he will have to serve 180 days in jail. He also had to pay a $260 fee. His attorney had sought six months probation at the court hearing.

“Your honor, I apologize for what I’ve done,” Radel told the judge. “I hit a bottom and I realize I need help.”

“I am so sorry to be here,” he said. “I have let my constituents, my country and my family down. I want to come out of this stronger and I intend to do that, to be a better man, a better husband and continuing serving this country.”

If Radel completes probation, he won’t have a conviction on his record, according to the U.S. attorney’s office.

Radel, 37, was elected last November with 63 percent of the vote. He represents Florida’s 19th Congressional District, which includes Fort Myers, Naples, Cape Coral, Bonita Springs and Marco Island. In a statement issued after he was charged Tuesday, Radel expressed profound regret for his actions and said they stemmed in part from an addiction to alcohol. “I struggle with the disease of alcoholism, and this led to an extremely irresponsible choice,” he said. “As the father of a young son and a husband to a loving wife, I need to get help so I can be a better man for both of them . . . I know I have a problem and will do whatever is necessary to overcome it.”

Michael Steel, a spokesman for House Speaker John A. Boehner (R-Ohio), said the matter will be dealt with outside the halls of Congress. “Members of Congress should be held to the highest standards, and the alleged crime will be handled by the courts,” Steel said. “Beyond that, this is between Representative Radel, his family and his constituents.”

But Radel’s case will also be examined by the House Ethics Committee. House rules require the panel to launch a preliminary investigation any time a member is indicted or charged with criminal conduct.

Radel did not participate in House votes Monday evening. But he has been casting votes in recent weeks, including on the day of and the day after the alleged cocaine purchase. He recently co-sponsored a bipartisan bill to reform the nation’s mandatory minimum sentencing laws for drug offenses.

November 20, 2013 in Celebrity sentencings, Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (10) | TrackBack

Sunday, November 17, 2013

Cyber-criminal/hacktivist gets max federal sentence of 10 years after guilty plea

As reported in this Rolling Stone piece, headlined "Cyber-Activist Jeremy Hammond Sentenced to 10 Years In Prison: The hacker, who pleaded guilty in May, is given the maximum sentence by a federal judge," a high-profile on-line criminal got a big-time sentence in federal court late last week.  Here are the details and some context:

Cyber-activist Jeremy Hammond was sentenced to 10 years in federal prison ... by Judge Loretta A. Preska in a federal courtroom in lower Manhattan for hacking the private intelligence firm Stratfor.  When released, Hammond will be placed under supervised control, the terms of which include a prohibition on encryption or attempting to anonymize his identity online.

Hammond has shown a "total lack of respect for the law," Judge Preska said in her ruling, citing Hammond's criminal record — which includes a felony conviction for hacking from when he was 19 — and what she called "unrepentant recidivism." There is a "desperate need to promote respect for the law," she said, as well as a "need for adequate public deterrence."

As Hammond was led into the courtroom, he looked over the roughly 100 supporters who had shown up, smiled, and said, "What's up, everybody?"  Prior to the verdict, he read from a prepared statement and said it was time for him to step away from hacking as a form of activism, but recognized that tactic's continuing importance.  "Those in power do not want the truth exposed," Hammond said from the podium, wearing black prison garb.  He later stated that the injustices he has fought against "cannot be cured by reform, but by civil disobedience and direct action."  He spoke out against capitalism and a wide range of other social ills, including mass incarceration and crackdowns on protest movements.

The Stratfor hack exposed previously unknown corporate spying on activists and organizers, including PETA and the Yes Men, and was largely constructed by the FBI using an informant named Hector Monsegur, better known by his online alias Sabu. Co-defendants in the U.K. were previously sentenced to relatively lighter terms. Citing Hammond's record, Judge Preska said "there will not be any unwarranted sentencing disparity" between her ruling and the U.K. court's decision....

Hammond's defense team repeatedly stressed that their client was motivated by charitable intentions, a fact they said was reflected in his off-line life as well. Hammond has previously volunteered at Chicago soup kitchens, and has tutored fellow inmates in GED training during his incarceration.

Rosemary Nidiry, speaking for the prosecution, painted a picture of a malicious criminal motivated by a desire to create "maximum mayhem," a phrase Hammond used in a chat log to describe what he hoped would come from the Stratfor hack.  Thousands of private credit card numbers were released as a result of the Stratfor hack, which the government argued served no public good.

Sarah Kunstler, a defense attorney for Hammond, takes issue with both the prosecution and judge's emphasis on the phrase "maximum mayhem" to the exclusion of Hammond's broader philosophy shows an incomplete picture. "Political change can be disruptive and destructive," Kunstler says. "That those words exclude political action is inaccurate."

Many supporters see Hammond's case as part of a broader trend of the government seeking what they say are disproportionately long sentences for acts that are better understood as civil disobedience than rampant criminality.

November 17, 2013 in Celebrity sentencings, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Saturday, November 09, 2013

You be the federal judge: should everyone claiming to be a Whitey Bulger victim get to speak at sentencing?

The question in the title of this post is prompted by this new USA Today article discussing arguably the only legal uncertainty preceding this week's coming high-profile federal sentencing. Here is the background:

When a jury in August found Boston mob boss James "Whitey" Bulger guilty in 11 murders and 31 racketeering counts, the verdict left eight families hungering for more justice. Their loved ones' deaths, the jury found, couldn't be linked to Bulger.  Now, with Bulger's sentencing hearing coming up Nov. 13 at federal court in Boston, these frustrated survivors might get the last word. Prosecutors hope at least some of them will get to tell the court how Bulger victimized them.

That prospect, however, has at least one juror crying foul, defense attorneys pushing back and legal experts warning that such an uncommon procedure could backfire by strengthening Bulger's grounds for appeal.

Judge Denise Casper is considering a prosecution request to permit "all victims" to give impact statements at the upcoming hearing. It is "beyond dispute that the criminal enterprise was responsible for the murder of all the victims specified in the indictment," says an Oct. 11 prosecution filing with the court. "Thus … family members of the murder victims clearly have a right to be heard at Bulger's sentencing."

Bulger's attorneys have fired back, urging the court to "reject the United States Attorney's Office's invitation to disrupt the findings of the jury." Meanwhile, Bulger trial juror Janet Uhlar has asked the U.S. Senate Judiciary Committee to investigate what she calls "a threat to U.S. jurisprudence."

"The verdict we carefully, dutifully, and painfully deliberated is being mocked by the US Attorney's Office," Uhlar said in an email to USA Today. If all are permitted to speak despite the jury's findings, she said, "U.S. jurisprudence will be dealt a fatal blow."

Legal experts say Casper has discretion to permit a narrow or wide range of impact statements. They add that no matter who's permitted to speak, 84-year-old Bulger is all but certain to spend the remainder of his days in prison. Prosecutors are asking for two consecutive life sentences, plus five years, in accordance with sentencing guidelines.

To allow victim impact statements from those not linked to the defendant's crimes would be extremely rare, according to Michael Coyne, associate dean of Massachusetts School of Law in Andover, Mass. He's never seen a case where it's been permitted, he said, adding that it would potentially cast aspersions on the sentence. "The appeals court could end up sending it back to her for having made a mistake," Coyne said, if the higher court finds the sentencing hearing was improperly managed.

But Casper might be weighing competing factors, according to David Frank, editor of Massachusetts Lawyers Weekly, a newspaper that covers legal affairs in the commonwealth. Among the possible concerns: Be sure no one who might count as a Bulger victim in this super-complex racketeering case is denied an opportunity to speak. "By law, victims of crime have an absolute right to address the court before sentencing," Frank said. "The judge has a difficult decision to make" as she considers, in light of conspiracy and other racketeering findings, how to define who is and who isn't a Bulger victim.

If the prosecution prevails, the government's image might get a boost among those who were hurt, especially during the 1970s and 80s by Bulger's Winter Hill Gang, Coyne says. Such victims have long resented how the government did little to bring the gangsters to justice, instead taking bribes and agreeing to generous deals with Bulger associates.

Yet the price paid for such an open forum could include an impression that the court is being used for more than justice. "It would reduce the sentencing hearing, to large extent, to a circus," said Robert Bloom, a criminal procedure expert at Boston College Law School. "It has absolutely no meaning other than some sort of cathartic relief for some of the victims."

Candidly, I find both foolish and fantastical the comments asserting there could be big legal problems resulting from the victims of "acquitted conduct" getting a chance to speak at Bulger's sentencing.  As informed folks should know, under established Supreme Court doctrine (US v. Watts) acquitted conduct can be (and still regularly does get) used by federal judges to significantly increase a defendant's sentence on other counts.  Though I view U.S. jurisprudence allowing such sentence increases to be misguided, I do not see how our justice system will be "dealt a fatal blow" from simply letting "acquitted conduct" victims speak at sentencing.  And, given that Bulger is facing mandatory life terms, even if it were somehow a procedural error to let these "victims" speak at sentencing, I am certain that the First Circuit would consider any such error harmless.

Some recent related posts:

November 9, 2013 in Celebrity sentencings, Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack

Thursday, November 07, 2013

Federal prosecutors say Whitey Bulger "richly deserves" his coming LWOP sentence

This Boston Globe article reports on the latest sentencing filing in a very high-profile federal prosecution under the headline "Whitey Bulger has no redeeming qualities and should be sentenced to life, prosecutors say." Here is how the article begins:

Federal prosecutors said today that notorious gangster James “Whitey”Bulger “has no redeeming qualities” and should be sentenced next week to life in prison for killing 11 people while running a sprawling criminal enterprise.

“There are no mitigating factors, and defendant Bulger has no redeeming qualities, which would justify any sentence below the one called for by the US Sentencing Guidelines and the applicable case law and statutes,” prosecutors wrote in a sentencing memorandum filed in federal court in Boston.

US District Court Judge Denise J. Casper will hear from the families of Bulger’s victims, defense lawyers, and prosecutors on Nov. 13 and sentence the gangster the following day. Bulger, 84, who did not take the stand during his eight-week trial last summer, will be offered an opportunity to speak before he is sentenced.

The government's six-page sentencing memorandum can be found at this link, and here is how it starts:

James “Whitey” Bulger is one of the most violent and despicable criminals in Boston history. Having now been convicted of thirty-one felonies, including RICO counts involving multiple murders, Bulger richly deserves to spend the rest of his life in jail.

November 7, 2013 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (3) | TrackBack

Tuesday, October 29, 2013

Jesse Jackson Jr. unable to check in early to federal prison system

This new story from the Chicago Tribune about the failed attempt by a fallen prominent politician provides some further evidence that few get special treatment from the federal Bureau of Prisons. The piece is headlined "Jackson Jr. turned away after showing up at prison early," and here are the (amusing?) details:

Convicted former Rep. Jesse Jackson Jr. tried to report Monday to a federal prison in North Carolina but was turned away, a prison spokesman said this morning.

Chris McConnell, executive assistant at Butner Federal Correctional Complex near Durham, declined to specify why Jackson was not allowed to surrender to the prison, but the ex-congressman did appear at Butner days earlier than expected. The sentencing judge had told Jackson to report no earlier than Friday, court documents show.

McConnell said the former lawmaker was turned away during the afternoon hours. He said press accounts in which Rep. G. K. Butterfield, D-N.C., described a paperwork problem being worked out at the prison were “very accurate.” Butterfield reportedly accompanied Jackson to the prison.

At the Bureau of Prisons in Washington, spokesman Ed Ross said this morning he could confirm that Jackson was not in bureau custody. He declined to elaborate on what occurred Monday or to say what is expected to happen next. It was not immediately clear when Jackson would be able to start his 30-month prison sentence.

Jackson was sentenced in the U.S. District Court for the District of Columbia after pleading guilty. Sheldon Snook, the administrative assistant to its chief judge, said today that he reviewed Jackson’s court docket and saw no change from a judgment entered in August indicating the former congressman shall surrender “no earlier than Nov. 1, 2013.” That is Friday....

The confusion over Jackson's whereabouts began Monday when his lawyer's spokeswoman said the ex-congressman had reported to prison. Bunnie Jackson-Ransom, an Atlanta publicist for Jackson lawyer C.K. Hoffler, said Jackson arrived at the Butner Federal Correctional Complex in North Carolina sometime after 2 p.m. Chicago time Monday. But McConnell, contacted late Monday afternoon, denied Jackson was in custody. And Ross cited the "inmate locator" on the prison system's website, which listed Jackson as "not in BOP custody" -- a status that remained as of 7 a.m. today Chicago time....

Jackson, 48, who was convicted of looting his campaign fund of $750,000, has been given an inmate number: 32451-016. Jackson is expected to join other high-profile felons at Butner. It is home to rogue financier Bernard Madoff; spy Jonathan Pollard; Omar Ahmad Rahman, the "blind sheik" convicted for plotting to blow up New York City landmarks; and Jon Burge, the former Chicago police commander under whose watch African-American suspects were tortured into making false confessions to rape and murder, records show....

Jackson, the son of civil rights leader the Rev. Jesse Jackson, reportedly has depression and bipolar disorder. Jackson Jr. pleaded guilty to stealing $750,000 from his campaign from 2005 to 2012 to pay for vacations, furs, celebrity memorabilia and even two elk heads. He was ordered to pay $750,000 in restitution. According to a court filing last week, the ex-congressman will pay $200,000 by Friday and then sell his Washington home. By May 15, attorneys will give the judge a report on how much he has paid.

Some prior related posts on Jackson prosecution and sentencing:

October 29, 2013 in Celebrity sentencings, Prisons and prisoners | Permalink | Comments (5) | TrackBack

Wednesday, October 16, 2013

Intriguing controversy over victim involvement in Whitey Bulger sentencing

This new National Law Journal piece, headlined "Judge Asked to Trim Victim Statements in Bulger Sentencing," reports on a notable legal debate in the run up to a high-profile federal sentencing scheduled for next month.  Here are the details:

Lawyers for accused mobster James “Whitey” Bulger and the Boston U.S. Attorney’s Office are facing off about whether victims of crimes for which he was acquitted should be allowed to speak out during his sentencing hearing next month.

The dispute highlights the wide discretion that federal judges hold in weighing evidence a jury rejected when passing sentence. In August, a jury found Bulger guilty of 11 of 19 murders that were predicate acts in the racketeering charges. Bulger also was found guilty of numerous additional racketeering and conspiracy offenses including extortion, narcotics, money laundering and firearms charges.

On Friday, prosecutors asked District of Massachusetts Judge Denise Casper to deny Bulger’s motion to exclude certain victim-impact statements from his November 13 sentencing hearing — specifically, those by family members of victims of crimes for which Bulger wasn’t convicted.

“Given the tumultuous history of this case and the backdrop of the inherent frailties of the Government’s witnesses, the Court should exercise its discretion by not considering acquitted conduct because to do otherwise is an insult to the jury process,” they wrote. “The jury has acquitted James Bulger of numerous murders he was accused of, and for which the government’s own cooperating witnesses are responsible. The sanctity of a jury's verdict should not suffer second guessing or be disrupted,” said Hank Brennan, of counsel to Boston’s Carney & Bassil, one of Bulger’s lawyers.

It’s relevant that Bulger was part of the criminal enterprise that killed all 19 victims, said Assistant U.S. Attorney Brian Kelly, chief of the public corruption unit in Boston.... “The fact that they found him guilty of [only] 11 murders doesn't mean that the other victims of the criminal group shouldn't have a say at sentencing,” Kelly said....

There’s very little case law on point and what there is grants courts wide discretion over what to consider at sentencing, said Jeff Steinback, a Chicago criminal defense lawyer who served on the U.S. Sentencing Commission’s practitioner advisory group between 2010 and 2012. “It’s always tricky, and there’s always a balancing act inherent in the process,” Steinback said.

This dispute seems very unlikely to have any substantive impact: given Bugler's age and the seriousness of his crimes of conviction, it is a near certainty that he will be getting a formal or functional life sentence.  But, especially for those eager to have a chance to speak out against Bulger in court, this matter is surely of symbolic and emotional importance for the victims.  For these reasons, I would be surprised if the district court precluded any victims from testifying at sentencing.

October 16, 2013 in Celebrity sentencings, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, October 11, 2013

Record-long political corruption sentence for former mayor of Detroit

As reported in this New York Times article, headlined "Kwame M. Kilpatrick, Former Detroit Mayor, Sentenced to 28 Years in Corruption Case," a remarkable case of political corruption culminated yesterday in a remarkable federal sentence.  Here are excerpts from the press account of the sentencing:

Kwame M. Kilpatrick, the former mayor of Detroit, stood before a federal judge on Thursday and apologized for putting the people of his city through a corruption scandal so vast that prosecutors say it helped accelerate Detroit’s march toward bankruptcy. “They’re hurting,” Mr. Kilpatrick said. “A great deal of that hurt I accept full responsibility for.”

They were solemn words from the formerly boisterous figure, a bear of a man at 6 feet 4 inches who many believed would lead Detroit out of its long economic downturn. But on Thursday he stood slouched, wearing a tan prison uniform instead of the flashy suits he once favored.  Court officers replaced the entourage of bodyguards that used to follow him around. The diamond that once studded his ear, an emblem of his reputation as the “hip-hop mayor,” was gone.

Then, declaring an end to the bribery and thieving that marked the Kilpatrick administration, Judge Nancy G. Edmunds of United States District Court imposed the sentence prosecutors had sought: 28 years in prison.

Mr. Kilpatrick, 43, was convicted in March of two dozen counts that included charges of racketeering and extortion, adding his name to a list of at least 18 city officials who have been convicted of corruption during his tenure. His punishment ranks among the harshest major state and local public corruption cases. Lawyers for Mr. Kilpatrick said that they intend to file an appeal of the convictions and sentence.

The hearing came at a sobering moment for the city he once led, which is now remaking itself in bankruptcy court as residents wrestle over whom to blame for the fiscal mess. For Detroiters, Mr. Kilpatrick’s meteoric fall — from potential savior of a struggling city to prison-bound symbol of financial mismanagement — may be the closest they will get to holding past leaders accountable for decades of disappointment and poor fiscal decisions....

In 2008, Mr. Kilpatrick resigned after he lied under oath during a police whistle-blower lawsuit and approved an $8.4 million settlement to try to cover it up. After pleading guilty to charges of obstruction of justice, Mr. Kilpatrick served four months in jail and was ordered to pay $1 million to the city. He was soon behind bars again for hiding assets from the court and telling a judge that he could afford to pay only $6 a month in restitution.

The former mayor and Bobby W. Ferguson, a city contractor and a friend, were indicted in 2010 on sweeping federal corruption charges. All told, prosecutors contend that Mr. Ferguson received $73 million worth of city contracts as a result of an extortion scheme that involved Mr. Kilpatrick, netting $9.6 million in illegal profit. Mr. Ferguson was convicted of nine counts and will be sentenced on Friday. “The amount of crime, it was astonishing and it had a huge impact on this city,” Mark Chutkow, one of the prosecutors, said as he left the courthouse on Thursday.

Mr. Kilpatrick’s lawyer, Harold Z. Gurewitz, who pushed for a sentence of no more than 15 years, argued in court that Mr. Kilpatrick was being unfairly targeted as a scapegoat for Detroit’s insolvency, with people trying to “send him out with the sins of the city over the last 50 years.” The sentence, he said in an interview later, was tougher than necessary and stiffer than some people get for violent crimes.

Among some of the highest penalties for recent public corruption convictions, James C. Dimora, former commissioner of Cuyahoga County in Ohio, was sentenced last year to 28 years in prison for racketeering and bribery. A year before, Rod R. Blagojevich, former governor of Illinois, was sentenced to 14 years in prison for convictions that included trying to sell the Senate seat President Obama left open when he went to the White House.

In her ruling on Thursday, Judge Edmunds said her decision was another strong warning to elected officials. “That way of business is over,” she said. “We’re done. We’re moving forward.”

October 11, 2013 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Wednesday, August 21, 2013

Bradley Manning gets 35 years from military judge for espionage convictions

As reported in this breaking news update from USA Today, "Army Pfc. Bradley Manning was sentenced to 35 years in prison after being convicted of espionage and other charges in connection with a massive leak of classified material." Here is more:

The judge in the case, Army Col. Denise Lind, announced the sentence in a military courtroom in Fort Meade, Md. He also received a dishonorable discharge, will forfeit his pay and benefits and was reduced in rank.

Manning faced a maximum of 90 years in prison after his conviction last month on charges of espionage, theft and fraud. Manning was convicted of the largest leak of classified material in U.S. history and was at the center of a growing debate over government secrecy.

Prosecutors urged the judge to sentence Manning to 60 years as a deterrent to others who might be tempted to leak secret documents. "He betrayed the United States, and for that betrayal, he deserves to spend the majority of his remaining life in confinement," Capt. Joe Morrow had said during the sentencing hearing.

Manning's defense had urged the military to sentence Manning, who served as an intelligence analyst in Iraq, to no more than 25 years in prison....

The U.S. government said his actions jeopardized U.S. interests and exposed informants and sources to danger. Manning's defense painted him as a misguided idealist who opposed the war in Iraq. "He had pure intentions at the time that he committed his offenses," defense attorney David Coombs said during the sentencing hearing. "At that time, Pfc. Manning really, truly, genuinely believed that this information could make a difference."

Manning's defense attempted to "play up the human aspect" of Manning by highlighting mental health issues, said Phil Cave, a former military lawyer now in private practice. Defense witnesses testified about Manning's "gender-identity disorder," which contributed to the mental stress he was under....

Under military law, the sentence will be automatically appealed. He would probably be eligible for parole after he served one-third or 10 years of his sentence, whichever is longer.

I have blogged very little about this high-profile sentencing case in large part because I am very ignorant about US military sentencing law and procedure. For example, I did not realize that parole remained available for lengthy military sentences (given that federal civilian law eliminated parole from the sentencing system three decades ago), nor am I conversant on what formal rules or guidelines may have impacted the seemingly broad sentencing discretion of Army Col. Denise Lind or could still play a role in the automatic appeal provided by military law.

Both due to my basic ignorance and due to the high-profile nature of this case, I welcome both informed and uninformed opinions on this sentencing outcome. Do folks think 35 years in prison (with parole eligibility in less than 12 years when Manning will still be in his mid-30s) is a fair and effective sentence in this case? Why or why not?

August 21, 2013 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (22) | TrackBack

Wednesday, August 14, 2013

"Both Jacksons get prison terms, Jackson Jr. to serve first"

The title of this post is the headline of this Chicago Tribune report on today's high-profile federal sentencing in DC.  Here are some of the details:

Former Rep. Jesse Jackson Jr. was sentenced today to 30 months behind bars and his wife, Sandi, got a year in prison for separate felonies involving the misspending of about $750,000 in campaign funds.

In addition to the 2.5 years in prison, Jackson Jr. was sentenced to three years of supervised release. Sandi Jackson was ordered to serve 12 months of supervised release following her prison term.

The judge emphasized that Sandi Jackson was sentenced to exactly 12 months, not the year-and-a-day sentence that some criminals get. Defendants sentenced to a year or less cannot qualify for time off for good behavior in prison. But those sentenced to a year and a day can qualify, which means they may end up serving only about 10 months. Under this rule, Sandi Jackson must serve the full year.

Both Jacksons wept in court as they addressed the judge before sentencing. Jackson Jr. apologized for his crimes and expressed special regrets to his mother and father. “Your honor, throughout this process I’ve asked the government and the court to hold me and only me accountable for my actions,” he said.

When Jackson Jr. spoke, he voice was firm except for the few times he wept openly and paused to dry his eyes with tissue, blow his nose and collect himself. “I am the example for the whole Congress,” he said. “I understand that. I didn’t separate my personal life from my political activities, and I couldn’t have been more wrong.”

Talking about his desire to be sent to a federal prison camp in Alabama, he said: “I want to make it a little inconvenient for everybody to get to me.” He said he hoped that his wife could earn enough money in his absence to keep the family together. “When I get back, I’ll take on that burden,” Jackson Jr. said. “By then I hope my children will be old enough that the pain I caused will be easier to bear.”

After a break in the hearing, Sandi Jackson, a former Chicago alderman, got her opportunity to address the court. She started by telling the judge: “I am a little nervous, so I have a written statement that I would like to read to you.”

She continued: “I want to begin by apologizing first to my family, to my friends, my community and my constiuents for the actions that brought me here today." She said she had caused “disappointment in my community” and had “put my family unit in peril.”

“My heart breaks every day with the pain this has caused my babies,” she continued, weeping. “I ask to be parent, provider and support system that my babies will require in the difficult months ahead.” Their children are ages 13 and 9.

Earlier, Jackson Jr.’s lawyer Reid Weingarten said his client felt “horror, shame and distress” over his crimes. But Weingarten also attempted to downplay the impact of Jackson Jr.’s actions, since he took money from his own campaign fund. It’s not as if there are widows and orphans outside the courthouse who are victims and asking for his head, Weingarten said. “This is not a Ponzi scheme,” he said.

Weingarten asked for an 18-month sentence for Jackson Jr. and noted, “He suffers from a very, very serious mental health disease.” He identified the ex-congressman’s illness as bipolar disorder, and conceded that it was relevant even though “we didn’t plead guilty by reason of insanity.”

Matt Graves, an assistant U.S. attorney, countered that Jackson Jr.’s crimes represented one of the largest cases of theft from a campaign treasury that had ever been prosecuted. Graves also took a shot at Jackson Jr.’s reported condition of bipolar disorder, saying normally when mental health issues are litigated in court, there was expert testimony, discovery and an examination of the defendant — and said none had occurred in this case.

“When one looks at the facts,” Graves said, “it’s quite clear that there’s no there there.” He decried Jackson Jr.’s “wasted talent” and “what he threw away.”

Graves said Sandi Jackson's crimes were serious and had occurred over many years. He also pointed out that defendants in federal courts across the country with children were given prison terms.

Jackson Jr., 48, and his wife, Sandi, 49, stood before federal Judge Amy Berman Jackson, who is no relation to the defendants. He pleaded guilty to a felony conspiracy count involving the $750,000 and she pleaded guilty to a related charge of failing to report about $600,000 in taxable income....

The Jacksons, both Democrats, pleaded guilty in February after a yearslong spending spree with campaign funds. Among the loot: a $43,000 Rolex watch, furs, vacations, two mounted elk heads and memorabilia ranging from a Michael Jackson fedora to an Eddie Van Halen guitar.

Prosecutors urged that he serve four years in prison and her 18 months. Defense lawyers wanted probation for her and a lighter term for him.

Jackson Jr. was in the House of Representatives from 1995 to 2012. Sandi Jackson served on the City Council from 2007 until last January. Both resigned their positions leading up to their guilty pleas.

August 14, 2013 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Saturday, July 20, 2013

"A Perfect Prosecution: The People of the State of New York v. Dominique Strauss-Kahn"

The title of this post is the title of this interesting new article about a non-prosecution by JaneAnne Murray now available via SSRN.  Here is the abstract:

The presumption of innocence may be the foundational principle of the American criminal justice system, but the presumption of guilt is its operational force. The U.S. Supreme Court acknowledged this reality in two notable criminal law decisions in 2012, Lafler v. Cooper and Missouri v. Frye, when it described the criminal process as “a system of pleas, not a system of trials”.

People v. Strauss-Kahn is an ideal lens through which to examine this process. It is both an excellent example of a transparent and objective invocation of the criminal sanction, and a sharp counterpoint to the vast majority of cases where law enforcement conclusions are trusted and rarely second-guessed. Stage by stage, the Strauss-Kahn case illustrates how to counterbalance the presumption of guilt and give expression to the presumption of innocence in the pretrial period through vigilantly-invoked and enforced due process protections.

Drawing from this examination, the paper will then explore how to approach this model process in the more standard cases, which typically see a fraction of the judicial, law enforcement, and defense resources afforded Dominique Strauss-Kahn. The Strauss-Kahn prosecution offers several insights, three of which will be sketched at the paper’s conclusion: a requirement that prosecutorial decision-making be subject to a reasonable doubt standard; early enforcement of the prosecutor’s obligation to disclose information that is favorable to the accused; and finally, a requirement that a prosecutor explain in writing any decision to dismiss the felony charges in indicted felony cases, so that the factual, legal and policy bases of these decisions (numbering almost one quarter of New York’s superior court felony cases annually) can be aggregated, analyzed and publicized.

July 20, 2013 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, July 14, 2013

Though he was found not guilty by the jury, are sentencing stories in the Zimmerman prosecution and verdict?

The question in the title of my post is my effort to provide a (final?) place for discussion of the high-profile state acquittal in Florida which a jury handed down late last night.  I suspect lots of folks are eager to talk about the substance of the prosecution and verdict, but I want to stress (and praise) the procedures in this post.  

I find quite notable and important the seemingly wide-spread acceptance by so many of the jury-based decision-making process and the use of a beyond a reasonable doubt standard of proof at Zimmerman's criminal trial.  And, as regular readers might guess, I wish to tie this reality back to my perception of the profound and enduring wisdom to be found in the Apprendi and Blakely line of cases (as for the Booker remedy, er... not so much).

Though perhaps we will see some future criticisms of the trial procedures in the Zimmerman case, my observation of early media and public reactions suggests a general acceptance of the process even among those who might profoundly disapprove of the outcome.  Indeed, I will be quite surprised if anyone — even those most bothered by the jury acquittal here such as the Martin family — will respond to the acquittal outcome by arguing that the result shows we should have professional judges rather than lay jurors resolving these kinds of cases or by advocating the use of a lesser proof standard than guilt beyond a reasonable doubt for criminal trials.  I surmise that this reality highlights just how deeply all Americans believe adjudication by lay jurors using a high standard or proof is fundamental to a fair and  criminal justice system.

And yet in sentencing in hundreds of courtrooms nationwide every day, once a guilty verdict has be entered by plea or conviction on any count, we still have what Judge Gerry Lynch once astutely called "our administrative system of criminal justice."  A lone state employee in the form of a judge uses informal and often hurried and cursory procedures to decide whether a convicted defendant will get a lenient of harsh sentence.  And the underlying facts in the Graham case (which made it to the Supreme Court for other issues) showed starkly how some judicial bureaucrats may often respond much too leniently at first and then much too harshly thereafter when administrating sentencing justice.

I do not mean this post to be a formal pitch for jury sentencing in all cases or an effort to assail the challenging and couragous decisions that federal and state sentencing judges must make every day.  Rather, I just want to highlight my belief that the apparent acceptance of the Zimmerman verdict even by those who dislike the outcome is a sign of the procedural wisdom of the Constitution's embrace of a unique and uniquely valuable set of procedures — procedures that cases like Apprendi and Blakely (and now Southern Union and Allenye) wisely seek to extend to even more and more criminal justice adjudications.

Prior posts on Zimmerman prosecution:

July 14, 2013 in Blakely Commentary and News, Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (31) | TrackBack

Thursday, July 11, 2013

With all evidence now in, are there any (sentencing?) lessons in the Zimmerman prosecution?

I have a strong feeling that lots of readers have lots of strong feelings about the on-going George Zimmerman trial.  As is my tendency, I do not post much (or even think much) about high-profile cases unless and until their is a conviction and a sentencing proceeding in the works.  But perhaps there are insights to draw from the Zimmerman-Martin events and subsequent prosecution even before we get any verdicts, and I thought it might be valuable to provide this opportunity for readers to express any such insights.

I will be off-line much of the day, so I hope commentors will try real hard to keep comments respectful and on-point, while also still feeling free to express genuine opinions and perspectives.

July 11, 2013 in Celebrity sentencings | Permalink | Comments (42) | TrackBack

Tuesday, July 02, 2013

Does postponement of Jacksons' sentencing suggest big rulings are in the works?

High-profile white-collar federal sentencing proceedings always intrigue me, especially when they involve a cocktail of dynamic doctrinal and policy issues as is the case in the upcoming sentencings of former Rep. Jesse Jackson Jr., and his wife Sandi. But , as reported here by the Chicago Tribune, it now appears we will have to all wait a bit longer for the Jacksons' day of sentencing reckoning:

The South Side Democrats had been scheduled to learn their fates Wednesday, until the delay was announced by U.S. District Judge Amy Berman Jackson, who is not related to the pair.  A court spokesman said neither the prosecution nor defense asked for the postponement.

"The matter was rescheduled to accommodate the court's schedule and workload — neither side requested a continuance," said Jenna Gatski, a spokeswoman for the U.S. District Court.

Jackson Jr. pleaded guilty to misusing about $750,000 in campaign cash. Sandi Jackson, a former Chicago alderman, pleaded guilty to failing to report about $600,000 on income tax returns over several years.

The postponement was announced after a telephone conference call between the judge and the Jacksons, the court said. Bill Miller, a spokesman for the U.S. attorney for the District of Columbia, said the sentencings would not take place this week.

Jackson Jr., 48, faces 46 to 57 months in prison under federal sentencing guidelines, which are not mandatory. His lawyers want a sentence lower than what the guidelines suggest and assert that Jackson Jr., who reportedly has bipolar disorder, could not get proper medical care in prison. Federal prosecutors want him to serve a four-year sentence and to be placed on supervised release for three years after that.

Sandi Jackson, 49, faces one to two years in prison. Her attorneys want her sentenced to probation, saying the couple's two children, ages 9 and 13, need their mother. Prosecutors want her imprisoned for 18 months and put on supervised release for a year.

The question in the title of this post is my reaction to report that neither side sought a postponement and the indication that the change was "to accommodate the court's schedule and workload."  I would be very surprised if Judge Amy Berman Jackson had a trial or lots of other litigation matters crop up in the middle of this summer holiday week; reading these latest tea leaves now has me wondering (and weirdly excited) that this postponement is based in part on the judge's plans to issue a significant written opinion on federal sentencing law, policy and practice along with her sentencing ruling. (Or maybe the judge just has tickets to see Bryce Harper back playing again for the Washington Nationals during their homestand this week, and she decided it was more fitting to catch a baseball game than to deprive liberty right before we all celebrate Independence Day.)

Related posts:

UPDATE:  This local article now reports that the Jacksons' sentencings have now been set for August 14.

July 2, 2013 in Booker in district courts, Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, July 01, 2013

"Will the Jacksons get a slap on the wrist, or will their heads be mounted?"

The question in the title of this post is the headline of this recent Chicago Tribune commentary, which gets to the heart of the highest-profile federal sentencing story for the coming holiday week.  This commentary was authored by John Kass, and he makes a sassy argument for throwing the book at the Jacksons.  Here is how his commentary gets started:

The two stuffed elk heads of Chicago politics — former U.S. Rep. Jesse Jackson Jr. and his wife, former Ald. Sandi Jackson — are scheduled for sentencing in their corruption and tax cases on July 3.

Our government often delivers bad news at the beginning of a three-day weekend, or before a long holiday like the Fourth of July, so that we taxpayers will have something else on our minds.

So what am I worried about in this case?

That Jackson Jr. gets a light kiss on the wrist and a mere few months at a Club Fed, and that upon his release, he and his father, the Rev. Jesse "King of Beers" Jackson — the hustler who made his career playing the race card — decide to open a restaurant. With Paula Deen.

What should they call it? Butter & Bud.

Prosecutors are asking for four years for Junior, and 18 months for his wife. And although all cases are different, let's not forget another case involving a guy they knew: Former Gov. Rod Blagojevich. He's rotting in prison.

It was Blagojevich who was convicted of trying to sell the U.S. Senate seat that once was held by President Barack Obama. Now Blago is sitting on 14 years. And who was supposed to be the beneficiary of the deal? None other than Stuffed Elk Head No. 1, Jesse Jackson Jr.

But Jackson wasn't charged. He walked away from it, cocky, until, finally, he was hoisted on the horns of his own elk head. Those absurd his-and-hers stuffed elk heads were just two of many ridiculous items the Jacksons purchased when he pilfered $750,000 from his campaign fund.

Most was junk, from the Michael Jackson fedora to shiny wristwatches and jewelry, a list of ostentatious nonsense demonstrating appallingly bad taste. What frosts most of us is that when he was finally caught, Jackson's camp explained it all away by saying he suffered from a bipolar condition.

Yes, he may be ill. But isn't it remarkable that crooked politicos seem to contract a terrible illness just as they're hit by the heartbreak of Feditis?

Some become alcoholics and drug addicts, others develop heart conditions. One guy even lifted his orange jumpsuit to show the judge his terrible belly rash in a plea for mercy. Most recover, miraculously, the moment they're free. And if Jackson's mouthpieces get their way, he won't do any time. They argue that he's mentally ill, but that federal prison psychiatrists aren't good enough for him.

I'm no psychiatrist, but if I were, I'd prescribe four full years in prison, with another four added to help him clear his head.

Related posts:

July 1, 2013 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack