Tuesday, March 18, 2014
Infomercial celebrity to be selling in federal prison for next decade
As reported in this local article, headlined "TV pitchman Kevin Trudeau sentenced to 10 years in prison," a salesman many have seen on late-night television will now only be seen in federal prison for a long time. Here are the sentencing details:
When TV huckster Kevin Trudeau stood in a packed federal courtroom to make one final sales pitch Monday, he hardly resembled the tanned, dapper figure seen hawking miracle diets and natural cancer cures on so many late-night infomercials. After spending four months in jail for contempt of court, Trudeau’s trademark jet black coif was thin and gray. His usual tailored suit was replaced by rumpled orange jail clothes. Even his typical air of defiance had turned to contrition, a change he said washed over him during his sleepless first night in custody.
“If I ever write a book again, if I ever do another infomercial again, I promise no embellishment, no puffery and absolutely no lies,” Trudeau told U.S. District Judge Ronald Guzman in a remorseful tone. “I know going forward I will be a better person.”
But the judge wasn’t buying a word. Moments after Trudeau’s plea for leniency, a visibly irritated Guzman sentenced the best-selling author to 10 years in prison, citing Trudeau’s decades-long history of fraud and calling him “deceitful to the core.”
“He has treated federal court orders as if they were mere suggestions...or at most impediments to be sidestepped, outmaneuvered or just ignored,” Guzman said in handing down an unusually lengthy prison term for a contempt conviction. “That type of conduct simply cannot stand.”...
Trudeau has been jailed since Nov. 12 when he was convicted by a federal jury of criminal contempt for lying in several infomercials about the contents of his hit book, “The Weight Loss Cure 'They' Don't Want You to Know About.” Prosecutors said he ignored a previous court order by describing the program as easy when it actually called for punishing calorie restrictions and a crippling list of food restrictions. Meanwhile, U.S. District Judge Robert Gettleman has repeatedly found Trudeau in civil contempt for failing to pay anything toward a $37.6 million fine imposed by the Federal Trade Commission in spite of continuing to live a lavish lifestyle.
On Monday, prosecutors cited Trudeau’s history of fraud that goes back to a state conviction in 1984. “He is a habitual liar and a fraudster,” Assistant U.S. Attorney April Perry said. As a result of the size of the fraud and Trudeau’s two previous felony convictions, federal sentencing guidelines called for 20 to 25 years in prison, a range that Guzman said he thought was “appropriate.” However, he eventually agreed with prosecutors who said a 10-year term was sufficient since -- unlike in many fraud cases -- no one who bought Trudeau’s book was financially ruined.
Trudeau’s attorneys argued that prosecutors vastly inflated the amount of harm done by Trudeau’s misleading infomercials, saying many buyers were satisfied with the weight loss book. In his lengthy statement to the court, Trudeau said he has been “completely wiped out” financially and that he and his wife Nataliya Babenko, 26, are “effectively homeless.” He said his time at the Metropolitan Correctional Center has changed his perspective and led him to realize he had made many errors. While he wouldn’t wish incarceration on anyone, the experience has wound up being “one of the best, most positive things in my life,” Trudeau said.
“In the past four months I have been stripped of all ego, defiance, arrogance and pride and for that I am thankful,” Trudeau said as he stooed at a lectern and read from typed notes.
But Judge Guzman was unimpressed, noting that in his three decades of fraud, Trudeau had taken on more than a dozen different aliases and even used his mother’s Social Security number to perpetrate a scam. “That doesn’t happen by accident, and it doesn’t happen by good intentions,” the judge said. “It is a reflection of a person’s character.”
Wednesday, February 12, 2014
Will (and should) former mayor Ray Nagin get a sentence making it likely he dies in federal prison after his corruption convictions?
The question in the title of this post is the first sentencing question that came to mind upon hearing this criminal justice news from a Louisiana federal court this afternoon:
Ray Nagin, the former two-term mayor of New Orleans indicted after he left office, was convicted Wednesday of 20 federal corruption charges for illegal dealings with city vendors, dating back to 2004. A jury delivered its verdict just before 1 p.m., after six hours of deliberations that followed a nine-day trial.
Nagin, 57, joins a list of Louisiana elected officials convicted of misdeeds while in office, but he is New Orleans' first mayor to be convicted of public corruption. Under federal sentencing guidelines, he could face a 20-year prison term, possibly more, lawyers have said.
In a case that relied heavily on the testimony of businessmen-turned-convicts -- and a paper trail that showed money changing hands and lucrative city contracts doled out -- prosecutors described a public official "on the take." Nagin was an opportunist who pursued businessmen under pressure to get government work, targeting them to line his own pockets, prosecutors said....
Nagin was somber and silent as he made his way through a crush of reporters outside of the courthouse -- a far cry from the confidence he showed when he first arrived more than two weeks ago at the start of his trial. Addressing the press, Jenkins said, "Obviously, I'm surprised. Now we're moving on to the appeal process."
Assistant U.S. Attorney Matt Coman, the lead prosecutor on the case, gave a brief statement. "We are pleased with the verdict and obviously we are very thankful to the jury and the court," he said....
Nagin, a Democrat, was the public face of the city during Hurricane Katrina, making national headlines as he lambasted the federal government for its response to the storm and subsequent flood.
He lives in Frisco, Texas, where he has avoided the spotlight, staying quiet save for an occasional tweet, since his indictment a year ago. Sentencing is set for June 11 before U.S. District Judge Ginger Berrigan.
As the title of this post suggests, I would urge now-convicted Nagin to urge his lawyers to get very focused on the federal sentencing process before they start "moving on to the appeal process." As the article above notes, federal prosecutors are likely to argue that the guidelines applicable here recommend a sentence of decades for Nagin, and judges within the Fifth Circuit tend to be drawn toward imposing within guidelines sentences. Ergo, unless and until Nagin's lawyers start developing some strong sentencing arguments on his behalf, the former mayor of New Orleans may be looking at the real possibility that he gets a federal prison sentence later this year that amounts to a functional life sentence.
Tuesday, January 28, 2014
Noting the high costs of seeking to give Jodi Arias death penalty fame rather than LWOP pain
This new AP story, headlined "Arias defense costs Ariz. taxpayers $2 million and counting," reinforces my sense that state taxpayers will often be the folks most harmed by some prosecutorial decisions to aggressively pursue the death penalty. Here are the basics:
Jodi Arias' legal bills have topped $2 million, a tab being footed by Arizona taxpayers that will only continue to climb with a new penalty phase set for March, officials said Monday.
Arias, 33, was convicted of murder in May, but the jury couldn't reach a verdict on her sentence. Prosecutors are now pursuing a second penalty phase with a new jury in an effort to get the death penalty. Trial is set for March 17. The former waitress and aspiring photographer has been held in jail in Maricopa County awaiting her fate while her legal bills continue to mount.
As of Monday, the county had paid $2,150,536.42 for her court-appointed attorneys, expert witnesses and other costs associated with her case, Maricopa County spokeswoman Cari Gerchick told The Associated Press.
Maricopa County Attorney Bill Montgomery has refused to provide a tally of how much it has cost to prosecute the case, citing a court order that attorneys not discuss Arias-related matters.
Arias admitted she killed her boyfriend, Travis Alexander, in 2008 at his suburban Phoenix home but claimed it was self-defense. He suffered nearly 30 knife wounds, had his throat slit and was shot in the forehead in what prosecutors argued was premeditated murder carried out in a jealous rage when Alexander wanted to end their affair.
The case captured headlines worldwide and became a cable television staple with its tales of sex, lies and a brutal killing while every minute of the trial was broadcast live. This time around, the judge will be limiting media coverage in hopes of avoiding the same publicity. There will be no live video coverage of the second penalty phase, and electronic devices will be banned, meaning reporters won't be able to provide real-time updates via Twitter as occurred during her first trial.
Under Arizona law, while her murder conviction stands, prosecutors have the option of putting on a second penalty phase with a new jury. If the second panel fails to reach a unanimous decision, the death penalty will automatically be removed from consideration, and the judge will sentence Arias to spend her entire life behind bars or be eligible for release after 25 years.
I have to guess that the second penalty phase now in the works and just the direct appeals if Arias gets sentenced to death will end up costing Arizona taxpayers another million or more in defense costs. And then there will surely be a number of costly habeas appeals, too, if Arias is on death row. Considering also the state court and state prosecutorial expenses, I do not think it inflated to assert that Arizona taxpayers are likely to end up spending at least $5,000,000 just to have Jodi Arias set and kept on death row.
As the title of this post highlights, this multi-million dollar expense seems like a great waste of state resources because the effort to send Arias to Arizona's death row has raised the profile of her case and helps ensure Arias is now forever a hero to the anti-death-penalty community. In addition, Arizona already has over 125 murderers on its death row but only gets around to executing a few each year, and thus Arias is likely to die of natural causes before being executed by the state even if sent to death row. Had Arizona prosecutors been able to cut a deal with Arias to take the death penalty off the table, at least after the first jury could not decide on a sentence, taxpayers would have saved a lot of money and Arias would likely now just be facing the pain of LWOP rather than the fame that comes with being a high-profile capital defendant.
I make these points not to defend Arias but rather to highlight the significant budgetary costs of seeking the death penalty in hard cases. I also could not help but research where all this Arizona taxpayer money now wasted on a fight over murderous Arias might have been better used. This lengthy Arizona budget document seems to reveal that the Arizona Crime Victims Programs -- which is under the authority of the Arizona Criminal Justice Commission and "provides support to all agencies that assist and compensate the victims of crime" -- has an annual budget of around $5,000,000. I am inclined to think that most folks, even those who support the death penalty in many cases, probably would share my view that it would have been a better use of state tax resources to double the funds for crime victims programming rather that keep seeking a death verdict that likely will never get carried out.
- After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
- Are there (and/or should there be) special death penalty rules for female murderers?
- Arizona jurors quickly make finding for Jodi Arias to be formally death eligible
- Notable developments in penalty phase of Jodi Arias' capital trial
- Jodi Arias now pleading for a life sentence before sentencing jury
- Arizona prosecutors say they are still planning to try again to get Jodi Arias sentenced to death
Sunday, January 26, 2014
Texas jury suggests it's much better for NFL players to kill pals than sell them pot and coke
I was pleased and intrigued by all the diverse comments that were part of reader reactions to my rant here last week about Justin Beiber and what I consider the harmful and dangerous leniency too often shown to serious DUI offenders. To summarize the gist of my prior rant(s), I am troubled many serious DUI offenses are punished so relatively leniently, and I fear that rich and famous DUI offenders get even extra leniency because they generally can afford the best lawyers and are generally viewed more sympathetically than most other defendants because of their fame. It was very helpful to see different folks express different reactions to these sentiments.
Intriguingly, the day after the Bieber arrest news broke, a Texas jury handed down its punishment for another rich and famous person involved in a serious DUI offense. Via this AP story, here are the details:
Former Dallas Cowboys player Josh Brent avoided prison Friday and instead was sentenced to 180 days in jail and 10 years of probation for a drunken car crash that killed his friend and teammate, Jerry Brown.
Brent was convicted Wednesday of intoxication manslaughter for the December 2012 crash on a suburban Dallas highway that killed Brown, who was a passenger in Brent's car. Brent could have been sentenced to up to 20 years in prison. He was also fined $10,000....
One of his attorneys, Kevin Brooks, described the former defensive tackle as "somber."... Brooks said, "It's kind of what we've been fighting for from Day 1. I'm happy for Josh. Josh is still sad and grieving and that's something he's going to carry with him the rest of his life."
Brown's mother, Stacey Jackson, wasn't in the courtroom when the verdict was read. She publicly forgave Brent, and said during Thursday's sentencing proceedings: "He's still responsible, but you can't go on in life holding a grudge. We all make mistakes."
Jackson was the last witness the jury heard, and lead prosecutor Heath Harris said her testimony probably helped Brent get probation. "The victim's family will always have a bearing on the punishment phase," Harris said. "Should it make a difference? What if she had been wanting the maximum? Would they have given the maximum? That's why we let the jury decide."
Prosecutors were pushing for prison time for Brent, whose trial came weeks after a teenage boy in neighboring Tarrant County received no prison time for an intoxication manslaughter conviction in a drunken crash that killed four people. In that case, a defense expert argued that the teen deserved leniency because his parents had coddled him into a sense of irresponsibility -- a condition the expert termed "affluenza."
The group Mothers Against Drunk Driving, whose headquarters isn't far from the spot where Brent crashed, said in a statement that it was "shocked and appalled" by the athlete's sentence. "This punishment sends the message that it's OK to drink and drive -- but it's absolutely not," MADD said....
Blood tests pegged Brent's blood alcohol content at 0.18 percent, which is more than twice the state's legal limit to drive of 0.08 percent. Prosecutors told jurors that the burly, 320-pound lineman had as many as 17 drinks on the night of the crash....
Judge Robert Burns scolded Brent after reading the verdict, saying his actions "bring shame to the city of Dallas." The judge also mentioned Brent's 2009 drunken-driving conviction in Illinois, which the prosecution revisited in making its case for prison time.
"The judge obviously has a right to express his opinion," said George Milner, one of Brent's attorneys. "I guess the difference is there's no one in that courtroom that knows Josh the way Kevin and I do. And so I see a different person."
Regular readers will not be at all surprised that I think a sentence of probation for 10 years and a $10K fine is far too lenient punishment for Brent's repeat and now deadly penchant for drinking and driving. (My understanding from this local report is that the Texas jury imposed only the probation term and fine, but that the trial judge added the 180 days in local jail.) And those who hope Brent will finally shape up after killing his friend might be interested in this NFL report from last year noting he failed two drug tests while on bail awaiting his trial.
Among other interesting aspects of this story is the obvious role that Brent's victims and Texas' system of jury sentencing played in the lenient sentence. As the above stories suggests, the Texas jury was likely significantly moved by statements from the victim's mother seeming to urge giving Brent a big sentencing break, whereas the local judge was apparently still eager to throw the book at Brent. I highlight these realities because far too many persons often believe or claim in far too many settings that giving voice to victims' interests and/or allowing jury sentencing will result in (too) harsh sentencing outcomes. In this notable case, giving voice to victims' interests and allowing jury sentencing result in a (too) lenient sentencing outcome.
Finally, as the title of this post indicates, what probably troubles me most about this outcome is what it says about the values and commitments of our modern criminal justice systems in the wake of last high-profile sentencing of an NFL player. As detailed in this AP article from two months ago, former NFL receiver Sam Hurd was sentenced to 15 years in federal prison for being involved in "a lot of agreements to buy and sell marijuana and cocaine." (Notably, the federal sentencing guidelines actually recommended that Hurd get a 30 year sentence, but the federal judge varied down to 15 years.)
In other words, for his first offense trying to make money by selling his pals pot and coke, Sam Hurd got a federal prison sentence 30 times longer than the jail term to be served Josh Brent for killing his pal during his second (known) offense of drinking and driving. Like the folks at MADD, I worry that these disparate punishment realities "send the message that it's OK to drink and drive" and kill your pal, just make extra sure you do not try to seel them some pot and coke or you might get in really big trouble. (And do not get me started on the additional messaging from another famous NFL player, Plaxico Burress, having to cut a plea deal to get a state prison sentence only four times longer than what Brent will serve simply for carrying a gun the wrong way and shooting himself!)
Some related posts on drunk driving leniency and NFL player sentencings:
- Why the #@$%! is Justin Beiber's sentencing exposure so low for underage DUI?
- Another young life cut short by famous drunk driver ... thanks in part to undue sentencing leniency
- How will Texas sentencing jury exercise its broad discretion after NFL player's intoxication manslaughter conviction
- Effective commentary complaining about undue leniency for drunk drivers
- Shouldn't we be much, much tougher with drunk drivers?
- Another high-profile example of undue leniency for a repeat drunk driver
- Former NFL player now a high-profile felon facing (severe?) federal sentencing realities
- Lawyer for Plaxico Burress making much of sweet plea deal given to other NFL receiver (guilty of DUI)
- Plaxico Burress cuts a plea deal requiring two-year prison term for his gun possession
Thursday, January 23, 2014
Why the #@$%! is Justin Beiber's sentencing exposure so low for underage DUI?
The foul-mouthed question in the title of this post was my reaction to reviewing the details in this AP article concerning the charges brought and sentencing ranges in play following troubled pop star Justin Beiber's arrest for drunk driving early this morning. Here are the basics:
A judge set pop singer Justin Bieber's bail at $2,500 Thursday after police say he drag-raced down a Miami Beach street while under the influence of alcohol. He was charged with DUI, driving with an expired license and resisting arrest.
Bieber was arrested after police said they saw him speeding down a residential street in Miami Beach in a yellow Lamborghini. Officers say he had an expired license, was initially not cooperative when he was pulled over and smelled of alcohol. Police say Bieber later admitted that he had been drinking, smoking marijuana and taking prescription medication....
R&B singer Khalil Amir Sharieff was arrested in the same incident. He is charged with driving under the influence, and his bond was set at $1,000. Police said Khalil was driving a Ferrari. Both Bieber and Khalil appeared briefly in court wearing bright red jail fatigues. They remained silent while defense attorney Roy Black negotiated bond.
Black, a high-profile lawyer whose clients have included Rush Limbaugh and William Kennedy Smith, said he thought the case would proceed "hopefully as any other case would" in light of Bieber's celebrity status.
Authorities say Bieber was arrested after police saw him and Khalil racing two luxury vehicles down the street at 4:09 a.m., with two other vehicles apparently being used to block off the area. Police say Bieber was clocked at 55 to 60 mph in a 30 mph zone. Earlier Thursday, police chief Ray Martinez said at a news conference that the singer was initially not cooperative when the officer pulled him over. Martinez said the singer also had an invalid Georgia driver's license and admitted to smoking marijuana, taking prescription medication and drinking.... Bieber failed a field sobriety test and was taken to the Miami Beach police station for a Breathalyzer, police said. Results haven't been released....
The street where police say Bieber was racing in mid-Miami Beach is a four-lane residential street divided by a grass median dotted with palm trees. Along one side of the street are small apartment buildings, and on the other side are a high school, a youth center, a golf course and a city firehouse....
Thursday's arrest is just the latest in a series of troubling incidents. Bieber has been accused of wrongdoing in California, but has never been arrested or charged. He is currently under investigation in a felony vandalism case after a neighbor reported the pop star threw eggs at his house and caused thousands of dollars of damage....
Under Florida law, people under the age of 21 are considered driving under the influence if they have a blood-alcohol content of .02 percent or more - a level Bieber could reach with one drink.
For a first DUI offense, there is no minimum sentence and a maximum of six months, a fine of $250 to $500, and 50 hours of community service. For anyone under 21, there is an automatic six-month license suspension. A first conviction for drag racing carries a sentence of up to six months, a fine of $500 to $1,000 and a one-year license suspension....
The Florida arrest likely won't affect Bieber's immigration status. According to U.S. immigration law, authorities do not revoke an individual's visa unless the person has been convicted of a violent crime or been sentenced to more than one year imprisonment.
Immigration attorney Ira Kurzban says neither driving under the influence nor driving without a license can make an individual eligible for deportation. Nor would either of those offenses keep Bieber from being readmitted into the U.S. "He's not subject to deportation because of a DUI offense," said Kurzban, "nor is driving with an expired license a deportable offense."
Long-time readers know that, while I think the scale of punishments for many offenses (especially nonviolent ones) in the US is often much too harsh, I have long viewed the scale of punishments for drunk driving to be way too lenient. In my view based on the innocent lives ended and permanently damaged every day by drunk drivers, the offense of DUi is one of the most persistent and enduring threat to public safety and one that I think modern criminal justice systems out to be do a heck of a lot more to deter and prevent.
For reasons that should be clear from the above description of Justin Beiber's offense conduct, it would seem as though he has committed one of the most aggravated forms of DUI here: he is an underage drinker, was in a residential neighborhood, was going twice the speed limit, resisted arrest, and (I suspect) was very drunk on numerous intoxicants while drag racing. For all those reasons, I want the book thrown at this dangerous (and famous) criminal. But apparently the worst sentence he can possibly get is "six months [in jail], a fine of $250 to $500, and 50 hours of community service." Yeesh.
As I have said before and as I know I will say again: my interest in deterring and incapacitating drunk drivers makes me eager to see rich, celebrity offenders get slammed with every reasonable shaming and alternative sanction possible ranging from having to forfeit their cars to losing driving privileges for years to paying enormous fines IN ADDITION TO whatever prison term is thought to send the right kind of message concerning these kinds of offenses. Sadly, though, I suspect Beiber will end up just getting a slap on the wrist after Roy Black trains him to say he was sorry, and we all will have to worry about whether and when there will be a next time Beiber (and maybe some of his beiliebers) spill blood rather than just oil on a neighborhood road.
Some related posts on sentencing drunk drivers:
- Effective commentary complaining about undue leniency for 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
- More examples of undue leniency shown to repeat drunk drivers
- "Some Coloradans drive until they kill"
- Another high-profile example of undue leniency for a repeat drunk driver
- Another young life cut short by famous drunk driver ... thanks in part to undue sentencing leniency
How will Texas sentencing jury exercise its broad discretion after NFL player's intoxication manslaughter conviction
As reported in this lengthy local article, the conviction of a high-profile defendant in Texas state court now presents an interesting new case study in jury sentencing discretion. Here are the detais:
Former Dallas Cowboy Josh Brent faces up to 20 years in prison after a Dallas County jury Wednesday found him guilty of intoxication manslaughter for a 2012 wreck that killed his best friend and teammate.
The verdict followed six days of testimony and arguments and approximately nine total hours of jury deliberations about whether Brent was actually drunk while driving in a Dec. 8, 2012, rollover wreck that killed 25-year-old Jerry Brown Jr., a Cowboys practice squad linebacker. The jury will now have to determine how much time — if any — Brent will spend behind bars for the felony conviction.
Brent — who served 30 days in an Illinois jail in 2009 after being arrested for driving drunk on an expired license and speeding — is eligible for probation. The punishment phase of Brent’s trial is set to begin Thursday.... The judge sent the jurors home Wednesday evening after they had been sequestered in hotel rooms Tuesday night. But they are still not allowed to talk to anyone about the case or take in media accounts until after the sentencing....
Brent was originally arrested after the early morning single-car crash on a State Highway 114 frontage road in Irving. He was driving at least 110 mph on a 45-mph stretch of road when his car hit a curb and spun out of control, according to court testimony. Neither Brent nor Brown wore their seat belts. An investigator testified during the trial that Brown’s body helped cushion Brent from more serious blows during the crash.
Tests showed Brent’s blood alcohol content after the wreck was 0.18 percent, which is more than twice the legal limit for driving of 0.08. A toxicologist testified that Brent, who weighs 320 pounds, would have had to drink 17 standard alcoholic drinks to reach that level.
Brent’s attorneys — George Milner III, Kevin Brooks and Deandra Grant — acknowledged that he was speeding, but tried to cast doubt on whether the ex-player was drunk at the time. “There is no proof in the record as to why he drove fast … He drove fast when he had nothing to drink,” Milner said in closing arguments.
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:
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.
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.
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?
The 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.
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.”
Monday, December 09, 2013
Seeking pre-trial sentencing views in high-profile federal murder prosecution of homicidal bride
In 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:
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:
- "Balancing the State and Federal Roles in Boston Bomber Case"
- Does Boston bombing provide still more support for my federal-only death penalty perspective?
- Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev
- "The Boston Bomber Should Face The Possibility Of The Death Penalty"
- How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?
- "Boston Bombing Suspect Is Indicted on 30 Counts"
- Will a jury get a chance to embrace or reject death penalty in Boston bombing case?
- Intriguing sparring over federal capital recommendation procedure in Boston bombing case
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.
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.
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:
- Intriguing controversy over victim involvement in Whitey Bulger sentencing
- Federal prosecutors say Whitey Bulger "richly deserves" his coming LWOP sentence
- Should prosecutors in Florida and Oklahoma pursue capital charges against Whitey Bulger?
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.
Tuesday, October 29, 2013
Jesse Jackson Jr. unable to check in early to federal prison systemThis 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:
- You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?
- Jacksons plead guilty and federal prosecutors recommend significant prison terms for both
- Months before scheduled sentencing, lawyers buzzing about Jesse Jackson Jr.'s mental health
- "Will the Jacksons get a slap on the wrist, or will their heads be mounted?"
- "Both Jacksons get prison terms, Jackson Jr. to serve first"
Wednesday, October 16, 2013
Intriguing controversy over victim involvement in Whitey Bulger sentencingThis 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.
Friday, October 11, 2013
Record-long political corruption sentence for former mayor of DetroitAs 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.”
Wednesday, August 21, 2013
Bradley Manning gets 35 years from military judge for espionage convictionsAs 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