Sentencing Law and Policy

"Why Does The Government Want To Shut Up Bryan Epis?"

In this recent prior post, I reported on a remarkable resolution to a remarkable federal criminal justice matter involving Bryan Epis, a California cannabis club operator.  I became aware of this story via Epis's attorney John Balazs, whom I invited to contribute additional thoughts about the case via a guest blog post.  John Balazs sent me a commentary with the heading that appears in the title of this post, and here is the interesting information and ideas that followed:

Bryan James Epis is a well-known medical marijuana activist who is believed to be the first person to be tried in federal court for cultivating marijuana for medical purposes after the 1996 ballot initiative that legalized medical marijuana in California.  Although only 458 plants were found at his residence, the government extrapolated from a disputed spreadsheet to project that his “conspiracy” to grow marijuana was for at least 1,000 plants, the threshold to trigger a mandatory minimum 10-year sentence.  Epis was found guilty at a jury trial of conspiracy to grow more than 1,000 plants and of producing more than 100 plants.  He was sentenced to 10 years imprisonment, a $15,000 fine, and 10 years of supervised release.  After multiple post-trial evidentiary hearings and extensive litigation, his conviction and sentence were upheld on appeal.

In January 2011, Epis filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. §2255, the federal equivalent of habeas corpus action to challenge a state conviction.  The motion included a number of claims for relief, including that Epis’s trial attorneys were ineffective in advising him concerning a plea offer and that the government committed misconduct in misrepresenting the nature of the spreadsheet.  The motion was supported by a 51-page Memorandum of Points and Authorities and numerous other documents.  I was Epis’s attorney in his § 2255 litigation.

Last month, the district court signed off on a rare settlement agreement in which Epis’s conviction on the conspiracy count was vacated and he was resentenced to 90 months on his conviction of growing more than 100 marijuana plants within 1,000 feet of a school. With the time he has already served, the agreement results in his remaining sentence cut by more than half.  Speaking for myself only, this blog is to comment on a couple of the more unusual and significant aspects of the settlement.

This case is one of the first after the Supreme Court’s decision in March in Lafler v. Cooper, 132 S.Ct. 1376 (2012), where a defendant obtained relief on a ground that was upheld in Lafler, i.e., that his trial attorneys rendered ineffective assistance in violation of the Sixth Amendment by providing deficient advice that resulted in him turning down a government plea offer and receiving a harsher sentence. Before the settlement, the parties deposed Epis’s trial attorneys, who did not refute the basis of Epis’s claim as neither could sufficiently recall their legal advice to Epis regarding the government’s offer. Given a likely evidentiary hearing, additional briefing, a potential appeal, and significant litigation risk on both sides, the settlement made sense for everyone.  Although the essential agreement was reached quickly after the deposition concluded and Lafler was decided, the case was delayed while the government sought guidance from the Department of Justice in D.C. concerning how to deal with the Lafler claim.  Ultimately, I was told that the DOJ would not be issuing any policy memo to U.S. Attorneys on Lafler claims and that each office should deal with such claims as appropriate on a case-by-case basis.

When the final agreement was ironed out, the government insisted on a condition barring Epis from advocating with respect to marijuana during his imprisonment and supervised release. While courts have upheld conditions of supervised release that limit First Amendment rights when reasonably related to the protection of the public, e.g., United States v. Ross, 476 F.3d 719 (9th Cir. 2007) (upholding condition barring association with neo-Nazi/white supremacy groups), I cannot comprehend what legitimate interest the government has in requiring a broad First Amendment restriction that bars lawful advocacy for the reform of our marijuana laws. The condition itself is vague and it’s unclear what actions are prohibited. Is Epis now barred from writing his Congressperson to ask that our country’s federal drug laws be amended to allow individual states to permit its residents to use marijuana for medical purposes?  And, even if the government could lawfully bar Epis from any advocacy to change our marijuana laws (which I doubt), why does it want to do so?  Putting aside the doubtful constitutional validity of a broad, no-advocacy condition, prohibiting U.S. citizens from lawfully advocating to reform our laws — on marijuana or otherwise — is bad policy and bad precedent.

Recent related posts:

• Fascinating deal cut in federal habeas action brought by California pot dispensary owner

Chief Justice Roberts says DNA collection from arrestees will soon get SCOTUS review (and perhaps approval)

As reported in this New York Times article, Chief Justice John Roberts yesterday officially granted a stay of a Maryland decision blocking state officials from collecting DNA samples from people charged with certain felonies. The short opinion explaining the ruling by Chief Justice Roberts includes these notable passages:

Maryland’s DNA Collection Act, Md. Pub. Saf. Code Ann. §2–501 et seq. (Lexis 2011), authorizes law enforcement officials to collect DNA samples from individuals charged with but not yet convicted of certain crimes, mainly violent crimes and first-degree burglary.  In 2009, police arrested Alonzo Jay King, Jr., for first-degree assault.  When personnel at the booking facility collected his DNA, they found it matched DNA evidence from a rape committed in 2003. Relying on the match, the State charged and successfully convicted King of, among other things, first-degree rape.  A divided Maryland Court of Appeals overturned King’s conviction, holding the collection of his DNA violated the Fourth Amendment because his expectation of privacy outweighed the State’s interests.  425 Md. 550, 42 A.3d 549 (2012).  Maryland now applies for a stay of that judgment pending this Court’s disposition of its petition for a writ of certiorari....

Maryland’s decision conflicts with decisions of the U. S. Courts of Appeals for the Third and Ninth Circuits as well as the Virginia Supreme Court, which have upheld statutes similar to Maryland’s DNA Collection Act....

The split implicates an important feature of day-to-day law enforcement practice in approximately half the States and the Federal Government.... Indeed, the decision below has direct effects beyond Maryland: Because the DNA samples Maryland collects may otherwise be eligible for the FBI’s national DNA database, the decision renders the database less effective for other States and the Federal Government.  These factors make it reasonably probable that the Court will grant certiorari to resolve the split on the question presented.  In addition, given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below.

And, in somewhat related news, Ted Gest in this post at The Crime Report provides a notable report on another official's views on DNA collection practices, which gets started this way:

New Mexico Gov. Susana Martinez, who served as a prosecutor for 25 years, gave a spirited pitch to criminal justice officials from around the U.S. yesterday to push for collecting DNA samples from everyone arrested for a felony.

New Mexico has been a leader in state passage of "Katie's Laws," named for Katie Sepich, who was murdered in New Mexico in 2003. Sepich's assailant, Gabriel Avila, was charged with the crime three years later --- although he had been arrested in the meantime for other offenses, and a Sepich DNA sample was available.

Martinez, who prosecuted the case, said he could have been charged with the crime much sooner had the law been in effect. She spoke to the National Criminal Justice Association's annual national forum, which is being held near Albuquerque, N.M.

New Mexico passed a law in 2006 requiring those arrested for violent felonies to yield DNA samples. The law was expanded last year to collect samples from all accused felons.

Second Circuit rejects sex offender's effort to expand Padilla to undo plea

The Second Circuit handed down an interesting panel opinion earlier this week in US v. Youngs, No. (2d Cir. July 23, 2012) (available here), which gets started this way:

Defendant Mark Allen Youngs (“Youngs”) appeals from his judgment of conviction. On August 27, 2008, Youngs waived indictment and pleaded guilty in the U.S. District Court for the Western District of New York to a two-count Superseding Information that charged him with producing child pornography in violation of 18 U.S.C. § 2251(a) (“Count One”); and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2) (“Count Two”). Youngs argues that his plea was defective because the district court did not advise him of the possibility of civil commitment as a sexually dangerous person at the end of his prison term. We hold that the district court was not required by due process or Rule 11 of the Federal Rules of Criminal Procedure (“Rule 11”) to advise Youngs of the possibility of civil commitment and affirm the conviction.

These paragraphs from the Youngs opinion explain why the Supreme Court's recent ruling in Padilla does not help carry the day for the defendant here (some cites and footnotes omitted):

While Youngs refers to Padilla as representing a “trend away from the distinction between direct and collateral consequences,” Appellant Br. at 22, Padilla’s holding was limited to the requirement of counsel to advise of deportation pursuant to their Sixth Amendment responsibilities.  These Sixth Amendment responsibilities of counsel to advise of the advantages and disadvantages of a guilty plea are greater than the responsibilities of a court under the Fifth Amendment.  See Libretti v. United States, 516 U.S. 29, 50-51 (1995) (holding that counsel, not the court, bears the responsibility of advising a defendant of the consequences of a guilty plea, apart from the “small class of rights” enumerated in Rule 11).  Thus, the Padilla Court's unwillingness to apply the direct/collateral distinction in the Sixth Amendment context does not demonstrate the Court’s intention to do away with that distinction entirely in the Fifth Amendment context....

While the Court in Padilla did not discard the direct/collateral distinction for due process, we recognize that Padilla may create some uncertainty as to the usefulness of categorizing certain consequences as either “direct” or “collateral” in the Fifth Amendment context. We nonetheless conclude that advising of the possibility of civil commitment under the Act does not fall within the scope of a district court’s due process obligations because the concerns expressed by the Supreme Court in Padilla as to deportation in the context of adequate counsel under the Sixth Amendment do not apply to such a remote and uncertain consequence as civil commitment.

In deeming deportation a “virtually inevitable” result of a noncitizen’s conviction for certain offenses, the Supreme Court pointed out in Padilla that the only way for such defendants to avoid deportation is the “possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses.”  Padilla, 130 S. Ct. at 1478, 1480.  Because deportation under these circumstances is nearly automatic, the Court concluded that deportation must be reviewed by counsel. Id. at 1482-83.  As discussed above, however, future civil commitment under the Act is not nearly as certain.  The Act provides discretion to the Government in choosing whom to certify for possible civil commitment.  Unlike deportation, the district court ultimately determines whether a defendant is civilly committed.  While the qualifying misconduct here is likely a predicate to consideration for civil commitment, once the Government decides to certify an inmate — Youngs or anyone else — for civil commitment, the Government will still have to establish by clear and convincing evidence that the inmate suffers from a condition that will make him sexually dangerous to others.  Thus, the likelihood of Youngs’s civil commitment is uncertain, both at the time of his plea and at the completion of his period of incarceration.

New York Times editorial laments increases in "Disenfranchised Felons"

Providing a fitting follow-up to a recent report by The Sentencing Project (blogged here), today the New York Times has this new editorial complaining about the continued growth of "Americans who cannot vote because they have been convicted of a felony."  Here are excerpts:

The Sentencing Project reported Thursday that in 2010 5.5 million voting-age citizens were disenfranchised because of their criminal records, up by 9 percent from 2004.

About a quarter are in prison, but the rest have completed their sentences or are on probation or parole.  The only reason not to let them vote is to stigmatize them or to continue punishing them.  Only Maine and Vermont impose no voting restrictions on felons or ex-felons. The other states impose various restrictions, with 11 states (six in the South) banning ex-felons from voting even after they have completed prison and probation or parole.

These limits are seriously counterproductive.  Former offenders who are allowed to vote are less likely to return to prison and more likely to become reintegrated into their communities. Public opinion and efforts by some states to restore voting rights to ex-felons in some circumstances reflect that view.  But because the justice system locks up so many people every year, many more people lose their voting rights than benefit from the state efforts.

The disproportionate number of blacks among the disenfranchised remains a huge racial justice problem.  Almost 7.7 percent of blacks of voting age are disenfranchised because of their criminal records, compared with less than 2 percent for non-blacks.  This stripping of black voting rights is linked to their disproportionate number in the criminal system — blacks make up 38.2 percent of the prison population, though they account for only 12.6 percent of the general population.

Recent related post:

• Big new Sentencing Project report on felon disenfranchisement

Big new Sentencing Project report on felon disenfranchisement

The Sentencing Project has just published this new report titled "State-Level Estimates of Felon Disenfranchisement in the United States, 2010." The report provides comprehensive estimates of the extent of disenfranchisement in all 50 states, and here is how it gets started:

The United States is one of the world’s strictest nations when it comes to denying the right to vote to citizens convicted of crimes.  A remarkable 5.85 million Americans are forbidden to vote because of “felon disenfranchisement,” or laws restricting voting rights for those convicted of felony-level crimes.  In this election year, the question of voting restrictions is once again receiving great public attention.  This report is intended to update and expand our previous work on the scope and distribution of felon disenfranchisement in the United States (see Uggen and Manza 2002; Manza and Uggen 2006).  The numbers presented here represent our best assessment of the state of felon disenfranchisement as of December 31, 2010, the most recent year for which complete data are available.  Our goal is to provide statistics that will help contextualize and anticipate the potential effects of felon disenfranchisement on elections in November 2012.

Our key findings include the following:

• Approximately 2.5 percent of the total U.S. voting age population -- 1 of every 40 adults -- is disenfranchised due to a current or previous felony conviction.

• Ex-felons in the eleven states that disenfranchise people after they have completed their sentences make up about 45 percent of the entire disenfranchised population, totaling over 2.6 million people.

• The number of people disenfranchised due to a felony conviction has escalated dramatically in recent decades as the population under criminal justice supervision has increased.  There were an estimated 1.17 million people disenfranchised in 1976, 3.34 million in 1996, and over 5.85 million in 2010.

• Rates of disenfranchisement vary dramatically by state due to broad variations in voting prohibitions.  In six states -- Alabama, Florida, Kentucky, Mississippi, Tennessee, and Virginia -- more than 7 percent of the adult population is disenfranchised.

• 1 of every 13 African Americans of voting age is disenfranchised, a rate more than four times greater than non-African Americans. Nearly 7.7 percent of the adult African American population is disenfranchised compared to 1.8 percent of the non-African American population.

• African American disenfranchisement rates also vary significantly by state. In three states -- Florida (23 percent), Kentucky (22 percent), and Virginia (20 percent) -- more than one in five African Americans is disenfranchised.

"Jerry Sandusky Could Get Pension in Prison Unless Bill Passes"

The title of this post is the headline of this ABC News story, which gets started this way:

Former Penn State football coach Jerry Sandusky will likely receive his $58,898-a-year state pension while in prison, unless a bill stalled in Pennsylvania's senate finance committee is quickly passed by the legislature and signed by the governor.

The bill would prevent employees convicted of sexual offenses related to their jobs from receiving their state pensions, said Cameron Kline, a spokesperson for State Sen. Larry Farnese, D-Philadelphia, who introduced the bill before Sandusky was charged with sexually abusing boys in his Second Mile program.

"This was introduced on Oct. 18, 2011, well before Sandusky's crimes came to light," Kline said. "It's something we think would be very appropriate for a case such as this. Now that it's over, we're a little concerned, confused and angry it's still stuck there. Apparently it's not a priority so the legislation still stays in committee."

Under current law, the pensions of public employees can be seized when a member is convicted of an Act 140 crime. That act includes crimes such as extortion, perjury and bribery but does not include sexual abuse, according to the Pennsylvania State Employees Retirement System website.

Pam Phile, spokesperson for the Pennsylvania State Employees Retirement System, said she could not speculate on whether Sandusky will have to forfeit his pension under the existing law, which was passed in 1978. "SERS reviews the sentencing documents in reaching a forfeiture determination and there has been no sentencing yet in this particular case," Phile said.

Kline said there are potentially other ways Sandusky could be stripped of his pension, but said passing a law at the state level would probably be the most logical. "There could be things at the Penn State level," he said. "[But] I really think it has to be a state law issue. This is the only thing that is at the ready to move. To my knowledge this is the best option."

Ohio's Republican legislature, prodded by Republican gov, enacts major felon reentry reforms

This local story from my own Columbus Dispatch, which is headlined "Bill signings include help for freed felons," effectively highlights not only that bipartisanship remains vibrant on some "smart" criminal justice reforms, but also that having Republicans in charge of a state's political branches may be essential to moving these reforms from good ideas to enacted legislation.  Here is how the piece starts:

A bill that will reduce barriers to employment and education for felons when they leave prison was among the 13 pieces of legislation that Gov. John Kasich signed yesterday.

Deemed the “collateral sanctions” bill, Senate Bill 337 will make it easier for people getting out of prison to get jobs cutting hair, working construction, selling hearing aids and working as security guards. Judges will be able to award certificates to remove job barriers and protect employers from potential liability. Also, courts can order community service instead of fines or driver’s-license revocation for non-driving offenses, and child-support orders can be modified when inmates are in jail or have a felony record.

It was a truly bipartisan bill introduced by Democratic Sen. Shirley Smith of Cleveland and Republican Sen. Bill Seitz of Cincinnati — and championed by Kasich — that the House passed unanimously.

On issues key modern state criminal justices ranging from sentencing reform to collateral consequences to use of clemency powers, Ohio's Governor John Kasich has been, in my view, one of the most engaged and effective chief executives in the nation.  (For this reason, I may now have to start rooting for Mitt Romney to pick Gov Kasich as his running mate, though I doubt he is on any realistic short lists.)  And the Ohio General Assembly, perhaps because it is dominated by members of the same party as Governor Kasich and has a number of real thoughtful members on both sides of the aisle, merits great credit for not turning any of these issues into a political football to kick around seeking polling points.

Though sometimes I fear that praise from the ivory tower might hurt rather than help some politicians, I still must give a proud shout-out and hearty praise to Gov Kasich and the Ohio legislature.  I hope they keep up the great work and keep trying to make sure my Ohio tax dollars are not wasted on unduly harsh and ineffective criminal laws and policies.

Dharun Ravi sentenced to only 30 days in jail in NJ webcam case

As reported in this ABC News piece, "former Rutgers student Dharun Ravi was sentenced to 30 days in jail by a New Jersey judge today for spying on his roommate's gay tryst."  Here are more about the basics:

"I do not believe he hated Tyler Clementi," Judge Glenn Berman told the court.  "He had no reason to, but I do believe he acted out of colossal insensitivity."... "I heard this jury say, 'guilty' 288 times--24 questions, 12 jurors.  That's the multiplication," Berman said. "I haven't heard you apologize once."

The prosecution, which sought a significant prison term, indicated it will appeal the judge's sentence.

Before the judge's sentencing, Ravi's mother delivered an emotional plea for leniency during which she and her son both broke into tears. At the end of her plea, Ravi's mother threw herself on her son, sobbing and hugging him.

In March, Ravi was found guilty of a bias crime for using a webcam to spy on his gay roommate Tyler Clementi.  The family of Tyler Clementi, the Rutgers freshman who committed suicide after his roommate broadcast a gay sexual tryst, bitterly asked the judge today to sentence Ravi to prison time.

Clementi's father, Joseph Clementi, told the judge, "One of Tyler's last actions was to check Ravi's Twitter page" and noted that his son checked his roommate's Twitter page 37 times before leaving the Rutgers campus and driving to the George Washington Bridge where he jumped to his death....

Ravi was convicted of invasion of privacy, bias intimidation, witness tampering and hindering arrest, stemming from his role in activating the webcam to peek at Clementi's date with a man in the dorm room on Sept. 19, 2010.

I think this sentence is a bit light, all things considered, but the many direct and indirect consequences of the prosecution and convictions that Ravi has endured and will continue to face (including potential deportation) arguably is greater punishment than any jail term.  These varied criminal justice consequences ought also help in some small way deter others from similar acts of "colossal insensitivity," though nobody should really expect this case (or any punishment for Ravi) to really impact the tendency of young people to be insensitive sometimes.

I have no idea if NJ state prosecutors have much chance of getting a longer sentence through an appeal; perhaps some local NJ lawyers might report if they do.  Especially in these lean budget times, I do not quite see why an appeal here would be a wise use of limited resources unless prosecutors can identify some legal error in the sentencing process for Ravi.

"Beyond 'Life and Liberty': The Evolving Right to Counsel"

The title of this post is the title of this new piece by John Derek King now available via SSRN. Here is the abstract:

The majority of Americans, if they have contact with the criminal justice system at all, will experience it through misdemeanor courtrooms.  More than ever before, the criminal justice system is used to sort, justify, and reify a separate underclass.  And as the system of misdemeanor adjudication continues to be flooded with new cases, the value that is exalted over all others is efficiency.  The result is a system that can make it virtually painless to plead guilty (which has always been true for low-level offenses), but that is now overlaid with a new system of increasingly harsh collateral consequences.  The hidden consequences of a conviction may never be explained to the person choosing to plead guilty, leading to unjust results that happen more regularly and with more severe consequences than ever before.

This Article argues that current Sixth Amendment jurisprudence on the right to counsel has not adequately adapted to the changed realities within which misdemeanor prosecutions take place today.  Because of the dramatic changes in the cultural meaning and real-life consequences of low-level convictions, there is no longer a useful or constitutionally significant line between those cases resulting in actual imprisonment and those cases not resulting in imprisonment.  Two years ago in Padilla v. Kentucky, the Supreme Court recognized that the line between the direct and collateral consequences of a conviction has no constitutional significance in defining the effective assistance of counsel.  Recognizing that the Sixth Amendment right to counsel has evolved throughout its history to accommodate the changing cultural context of criminal prosecutions, this Article calls for a robust expansion of the right to counsel in all criminal cases.

The Sentencing Project provides "Felony Disenfranchisement: An Annotated Bibliography"

I received an e-mail earlier this week from The Sentencing Project announcing this new publication, titled "Felony Disenfranchisement: An Annotated Bibliography," which "provides an overview of more than 80 journal articles and books on felony disenfranchisement over the past two decades." Here is the introduction of the document:

While the right to vote is a cornerstone of American democracy, a substantial and growing population of citizens is restricted from participation in the electoral process.  Current estimates suggest that about five million Americans are ineligible to vote as a result of having a felony conviction.  Depending on the state in which they have been convicted, these people may be disenfranchised while incarcerated, on probation or parole, or even after completing a sentence.  As a result of the dramatic expansion of the criminal justice system in recent decades, the number of people with convictions, and hence disenfranchised, is at a record high.

Since the first modern-day estimates of the disenfranchised population were developed in the late 1990s, there has been a surge of policy reform activity around the country.  Two dozen states have enacted various policy and practice reforms designed to either scale back the number of persons disenfranchised or remove some of the barriers to rights restoration.

Along with this movement has come a new generation of scholarship on the issue of felony disenfranchisement.  A wealth of studies and analyses have been produced in recent years that examine disenfranchisement from a variety of perspectives -- law, social science, history, and journalism.  Overall, these writings provide new estimates of the statistical impact of disenfranchisement, assess legal and moral perspectives on the policy, and place the issue in a comparative international context.

This bibliography provides an overview of the scholarship on felony disenfranchisement over the past two decades.  We hope that it will prove useful to policymakers, scholars, journalists, and others engaged in examining this fundamental issue of democratic participation.

"Battling Collateral Consequences: The Long Road to Redemption"

The title of this post is the title of this new and timely article by Joann Sahl, which is available via SSRN.  Here is the abstract:

Mississippi Governor Haley Barbour issued 193 controversial pardons on January 10, 2012, his last day in office. Former Ohio Governor Ted Strickland, who left office in January 2011, also faced criticism when he granted 280 pardons.  Both governors publicly acknowledged that they granted most of their pardons to rehabilitated ex-offenders who sought to overcome the civil consequences of their criminal convictions.  These consequences, known as collateral consequences, impede the ability of millions of ex-offenders to find employment, housing or other important benefits.

This Article explores the increasingly important, but controversial, role that governors play in the battleground of collateral consequences.  Their use of their redemptive pardon power has become critical to ex-offenders to overcome the collateral consequences of their convictions so they may reintegrate into society.  This Article examines the redemptive pardon process through the lens of two ex-offenders who made the journey from conviction to pardon.  As their stories reveal, the pardon process is long and arduous.  This Article recommends that governors adopt an expedited process for redemptive pardons so ex-offenders may have more timely relief from the burden of their collateral consequences.

The redemptive pardon serves an important role for ex-offenders who seek a second chance, but it is impossible for governors to consider and to grant the pardon applications of millions of ex-offenders. States must offer other remedies to ex-offenders that can also serve to ameliorate the impact of collateral consequences.  This Article recommends changes to judicial expungement statutes, using Ohio as a model, to offer this needed relief.

The redemptive pardon and judicial expungement process will help ex-offenders in their ongoing struggle with the collateral consequences of their convictions, but true relief can only occur if there is an end to collateral consequences.  This Article urges states to abolish collateral consequences and it highlights Ohio’s efforts as a model for this change.

"Ravi found guilty on 24 of 35 charges in webcam case"

The title of this post is the headline of this local report on the high-profile state criminal trial of a Rutgers student that has been taking place in New Jersey.  Here are the basics:

Dharun Ravi has been found guilty of 24 of 35 separate charges by a Superior Court jury here. Following three days of deliberation, the jurors found Ravi guilty of invasion of privacy, bias intimidation, attempted invasion of privacy, tampering with physical evidence, hindering apprehension or prosecution, witness tampering and tampering with physical evidence.

Three of the counts carry a possibility of jail time; they are the bias intimidation charges as well as the hindering apprenhension count.  Sentencing has been scheduled for May 21.

In all, the former Rutgers student was charged with 15 counts for using a webcam to spy on his gay roommate’s encounter with another man in their college dorm room in September of 2010.

Media attention at the Middlesex County Courthouse is intense, with more than 100 news gatherers covering the trial. The 12 jurors with three alternates worked their way through a verdict sheet that asked them to decide Ravi’s guilt on 35 different separate questions regarding the 15 counts.  The charges included invasion of privacy, attempted invasion of privacy, bias intimidation, tampering with physical evidence, hindering apprehension or prosecution, witness tampering and tampering with physical evidence....

On Sept. 19, 2010 Ravi was alleged to have briefly spied on Clementi and a man known only as M.B. for a few seconds with Molly Wei, a dorm mate who was a resident across the hall from Ravi.  Ravi was charged with making a second attempt to spy on them two days later. Clementi jumped off the George Washington Bridge on Sept. 22, 2010.  The trial has drawn national media attention because of discussions it has raised regarding cyber-bullying, misuse of social media and anti-gay bias.

Because New Jersey sentencing law is complicated (thanks in part to Apprendi, which notably came out of New Jersey and involved judicial fact-finding about racial bias to increase a sentence), I have no idea what kinds of sentence(s) Dharun Ravi might be facing.  Because I have seen reports that Ravi might now also need to fear deportation, constitutional gururs can already begin spotting Padilla-related issues along with Apprendi issues in this high-profile case.

Free from even knowing yet what applicable state sentencing law provides, I am very eager to hear from readers about what kind of sentence they think should (or will) be imposed upon Dharun Ravi following these convictions.  I have not followed the case closely enough to have a sense of all the relevant sentencing consideration, but I do sense that the forthcoming sentencing could end up raising a lot of interesting legal and policy issues.  Thus, I suspect this may be just the first post in a series as this case turns toward sentencing.

"What’s In a Name? A Lot, When the Name is 'Felon'"

The title of this post is the title of this interesting new commentary by Margaret Colgate Love now up at The Crime Report.  Here are excerpts from a piece which merits a full read:

“Felon” is an ugly label that confirms the debased status that accompanies conviction.  It identifies a person as belonging to a class outside many protections of the law, someone who can be freely discriminated against, someone who exists at the margins of society.

In short, a “felon” is a legal outlaw and social outcast.  But the word “felon” does more work than that.  It arouses fear and loathing in most of us.  I confess that it arouses those visceral feelings in me.  I do not want to live or work around felons.  I do not want to socialize with them....

I make a living representing people who have been convicted of a crime.  They are, for the most part, very interesting and thoughtful people who have a great deal to offer society. In many cases, it is precisely their experience in the criminal justice system that has made them this way.

So it is hard for me to think of my clients as “felons.”  And yet that is the label they must bear, in the workplace, in their communities, and in society at large.  It is an unhelpful label and in many cases it is deeply unfair.  My clients come to me because they hate the label, because they want it removed, because they think they don’t deserve it.  And they are right.  They are all right.

In the Middle Ages, and even in the early days of our own Republic, felony convictions were hanging affairs, and civil death statutes simply anticipated the impending corporal end.  After the Civil War, felonies expanded to include many minor property crimes (Mississippi’s infamous “pig law” is illustrative), and prosecution became a convenient way of disenfranchising and re-enslaving the recently-freed black population.

In the late 20th century, the war on crime made conviction an industry, and reinforced status as punishment.  These days, you don’t have to do anything particularly evil to be condemned to what sentencing scholar Nora Demleitner has called “internal exile.”  The “felon” label now applies to more than 20 million Americans.

A journalist friend at the John Jay conference pointed out that “felon” is convenient shorthand, helpful for headlines, certainly evocative. How could I argue?  But labeling people as “felons” is also fundamentally at war with efforts to reduce the number of people in prison, to facilitate reentry, and to encourage those who have committed a crime, or even many crimes, to become law-abiding and productive citizens....

Skilled writers can find ways to avoid using words that are toxic.  Even headline writers can be weaned from them.  Journalists play a key role in advancing the cause of social justice, and they do it through the language they use.  It is time to junk the label “felon” and restock our language toolkit.

"Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments"

The title of this post is the title of this notable new paper by Richard Re and Christopher Re, which is now available via SSRN.  Here is the abstract:

The Reconstruction Amendments are justly celebrated for transforming millions of recent slaves into voting citizens.  Yet this legacy of egalitarian enfranchisement had a flip side. In arguing that voting laws should not discriminate on the basis of morally insignificant statuses, such as race, supporters of the Reconstruction Amendments emphasized the legitimacy of retributive disenfranchisement as a punishment for immoral actions, such as crimes. Former slaves were not just compared with virtuous military veterans, as commentators have long observed, but were also contrasted with immoral criminals.  The mutually supportive relationship between egalitarian enfranchisement and punitive disenfranchisement — between voting and vice — motivated and shaped all three Reconstruction Amendments. Counterintuitively, the constitutional entrenchment of criminal disenfranchisement facilitated the enfranchisement of black Americans.  This conclusion complicates the conventional understanding of how and why voting rights expanded in the Reconstruction era.

Criminal disenfranchisement’s previously overlooked constitutional history illuminates four contemporary legal debates.  First, the connection between voting and vice provides new support for the Supreme Court’s thoroughly criticized holding that the Constitution endorses criminal disenfranchisement.  Second, Reconstruction history suggests that the Constitution’s endorsement of criminal disenfranchisement extends only to serious crimes. For that reason, disenfranchisement for minor criminal offenses, such as misdemeanors, may be unconstitutional.  Third, the Reconstruction Amendments’ common intellectual origin refutes recent arguments by academics and judges that the Fifteenth Amendment impliedly repealed the Fourteenth Amendment’s endorsement of criminal disenfranchisement.  Finally, the historical relationship between voting and vice suggests that felon disenfranchisement is specially protected from federal regulation but not categorically immune to challenge under the Voting Rights Act.

"Will Ex-Inmates Who Get Jobs Commit Fewer Crimes?"

The question in the title of this post is the headline of this new entry by Ted Gest over at The Crime Report. Here is how it starts:

The poor national economy has thwarted the notion that most of the 700,000 people released from prison each year can find employment, but criminologists believe it's still important to track who finds work and who doesn't.

In a briefing this week for congressional staff members and others in Washington, D.C., Robert Apel of New Jersey's Rutgers University suggested that success in getting jobs could serve as a "signal to identify people who will desist from crime."

Apel and fellow criminologist Shawn Bushway of the University at Albany wrote the lead article in the new issue of the American Society of Criminology's Journal Criminology & Public Policy.

Bushway, who also spoke at the briefing in the U.S. Capitol Visitors Center, said that employment of former inmates, even if it is not always successful, can serve an important function as a "risk predictor."  The same offender who is motivated enough to find a job may also be one who will stop committing crimes, Bushway explained.

In their paper, Apel and Bushway write that their review of studies done on the subject suggests that employers should not automatically reject all offenders for jobs. Some employers, they said, "may already be using completion of employment training programs (either pre-release or post-release) to identify 'good employees' from the pool of low-skill labor."  The criminologists questioned state laws that ban offenders from entire categories of work.

The article from Criminology & Public Policy referenced in this piece is available at this link.

"From 'Collateral' to 'Integral': The Seismic Evolution of Padilla v. Kentucky and Its Impact on Penalties Beyond Deportation"

The title of this post is the title of this notable piece authored by J. McGregor Smyth Jr., which is now available via SSRN.  Here is part of the abstract:

From the moment of arrest, people charged with crimes find themselves caught in a web of punitive sanctions, in danger of losing their jobs, homes, children, and right to live in this country.  Politicians over the past thirty years, eager to be “tough on crime” at the expense of being smart on crime, have piled layer upon layer of these “collateral” consequences on even a person’s most minor involvement in the criminal justice system.

As this web grew to overshadow the traditional criminal sanctions for most offenses, criminal courts and practitioners struggled to create legal justifications for ignoring it. The “collateral consequences” doctrine resulted.  Arising out of Fifth Amendment challenges to convictions on the theory that courts had not adequately notified people of this web at plea or sentencing, this doctrine draws a sharp but false distinction between “direct” consequences of criminal proceedings (such as incarceration) and “collateral” consequences (such as deportation).

In a move last Term that shocked commentators and practitioners alike, the Supreme Court ignored decades of lower court case law to effectively repudiate this doctrine — which has been one of the most dominant (and most harmful) legal fictions of the criminal justice system.  In Padilla v. Kentucky, the Court held that to provide effective assistance of counsel, a criminal defense attorney has an affirmative duty to give specific, accurate advice to noncitizen clients of the deportation risk of potential pleas. The majority’s analysis, however, reaches far beyond advice on immigration penalties, extending to any and all penalties intimately related to criminal charges.  The Court’s recasting of Sixth Amendment jurisprudence will have significant ripple effects, leaving a rich set of legal issues for the courts to resolve in the coming years.  These issues include those related to post-conviction relief, the Ex Post Facto Clause, Eighth Amendment definitions of punishment, the adequacy of defense funding, the expansion of the right to a jury trial, and the extension of the right to counsel.

This Article examines the practical effect of Padilla for criminal defense attorneys currently working with clients on pending cases....  This Article uses the legal reasoning of Padilla to outline a structure for approaching the daunting process of identifying and adequately advising clients about the wide range of penalties resulting from criminal justice involvement. The Article focuses not on post-conviction relief, but on productive and proven strategies for improved trial level advocacy going forward.

"Paying a Price, Long After the Crime"

The title of this post is the headline of this New York Times op-ed by Professors Alfred Blumstein and Kiminori Nakamura.  Here are excerpts:

A stunning number of young people are arrested for crimes in this country, and those crimes can haunt them for the rest of their lives.  In 1967, President Lyndon B. Johnson’s Crime Commission found that about half of American males could expect to be arrested for a nontraffic offense some time in their lives, mostly in their late teens and early 20s. An article just published in the journal Pediatrics shows how the arrest rate has grown — by age 23, 30 percent of Americans have been arrested, compared with 22 percent in 1967. The increase reflects in part the considerable growth in arrests for drug offenses and domestic violence.

The impact of these arrests is felt for years. The ubiquity of criminal-background checks and the efficiency of information technology in maintaining those records and making them widely available, have meant that millions of Americans — even those who served probation or parole but were never incarcerated — continue to pay a price long after the crime.  In November the American Bar Association released a database identifying more than 38,000 punitive provisions that apply to people convicted of crimes, pertaining to everything from public housing to welfare assistance to occupational licenses.  More than two-thirds of the states allow hiring and professional-licensing decisions to be made on the basis of an arrest alone.

Employers understandably want to protect their employees and customers from risk.  Yet at the same time, there is a growing public interest in facilitating job opportunities for those who have stayed crime-free for a reasonable period of time.... Last April, Attorney General Eric H. Holder Jr. urged state attorneys general to review laws and policies “to determine whether those that impose burdens on individuals convicted of crimes without increasing public safety should be eliminated.”

It is well established that the risk of recidivism drops steadily with time, but there is still the question of how long is long enough.  By looking at data for more than 88,000 people who had their first arrest in New York State in 1980, and tracking their subsequent criminal histories over the next 25 years, we estimate the “redemption time” — the time it takes for an individual’s likelihood of being arrested to be close to that of individuals with no criminal records — to be about 10 to 13 years.  We also found that about 30 percent of the first-time offenders in 1980 were never arrested again, in New York or anywhere else.

Employers could apply their own judgments around those estimates, but the real problem is the state and local rules — often embedded in statutes — that restrict employment or licensing for the rest of the individual’s life.  In New York, former offenders can be forever denied licenses for certain jobs, ranging from beer distributor to real estate broker.  Such “forever rules” — which fall heavily on minorities, who are particularly likely to be arrested — are inherently unfair.

We propose that the “forever rules” be replaced by rules that provide for the expiration of a criminal record.  We believe it is unreasonable for someone to be hounded by a single arrest or conviction that happened more than 20 years earlier — and for many kinds of crimes, the records should be sealed even sooner.  The state, as well as private employers, should face a heavy burden to demonstrate the need for any rule that imposes consequences on someone who has remained crime-free decades after a single offense....

Policies that encourage employers to hire people who made a mistake in the past but have since rebuilt their lives would not only help those people, but also our economy and our society.  With unemployment so high, we need to make it easier, not harder, for people to find jobs.  And by embracing the principle that having paid the price for crime, there should be a limit on the time they are made to suffer, we would be giving true meaning to the ideals of rehabilitation and redemption.

Notable new data on the "crimmigration" front

The linkages between criminal justice law and policy and immigration law and policy has generated a new term, "crimmigration," and there are some notable blogs covering these intersecting issues (see here and here).  And this news report from USA Today, headlined "Most illegal immigrants deported last year were criminals," adds some interesting data to these discussions. Here are the basics:

The U.S. deported nearly 400,000 illegal immigrants last year, and an increasing number of them were convicted criminals, according to figures set for release Tuesday by the Department of Homeland Security.

Deportations have been on the rise for the past decade, and the 396,906 illegal immigrants deported in fiscal year 2011 is the highest number yet, according to the figures.

Under the Obama administration, Homeland Security issued new priorities to focus deportations on convicted criminals, people who pose threats to national security and repeated border-crossers. Last year, 55% of those deported were convicted criminals, the highest percentage in nearly a decade.

Immigration and Customs Enforcement Director John Morton said the numbers reflect the administration's "focus on sensible immigration."... Critics say the numbers illustrate that the administration is intent on finding ways for illegal immigrants to stay in the country.

Obama last year endorsed the DREAM Act, which would have granted legal status to some children of illegal immigrants, but it failed to pass Congress. And Rep. Lamar Smith, R-Texas, chairman of the House Judiciary Committee, has questioned the reprioritizing of deportations, arguing that it amounts to a free pass for illegal immigrants who have not committed major crimes....

Others look at the numbers and wonder how they could be interpreted as leniency. "For billions of dollars to be spent so that 45% of the people we're deporting are not convicted criminals is not a good use of our enforcement dollars," said Ali Noorani, executive director of the National Immigration Forum, which supports a path for some of the nation's 11 million illegal immigrants to become citizens.

Of the convicted criminals deported last year, 1,119 were convicted of homicide, 5,848 of sexual offenses, 44,653 of drug-related offenses and 35,927 of driving under the influence, according to the Homeland Security figures. The number of illegal immigrants deported has risen from 116,782 in 2000. The percentage of criminal deportations was at 31% when Obama assumed office.

Sex offender standing before SCOTUS this morning in Reynolds

As explained in this helpful SCOTUSblog post, the Supreme Court is hearing arguments this morning in a sex offender case to kick of the start of its new Term, but what is at issue seems quite narrow and of limited long-term consequences.  The case is Reynolds, and here are the essentials:

In Reynolds v. United States, the Court will consider a surprisingly narrow issue: standing. In particular, the case asks whether a sex offender who was convicted before SORNA’s enactment has standing to challenge the Attorney General’s rule that applies SORNA’s registration requirement to pre-enactment offenders.

SORNA requires every sex offender to register, and to keep the registration current, in each jurisdiction where the offender lives, works, or studies. It provides that a sex offender’s failure to register, or to keep registration current, itself constitutes a federal crime. Section 16913(d) delegates to the Attorney General the authority to say whether and how SORNA’s registration requirements apply to sex offenders who were convicted before SORNA’s enactment...

The petitioner in this case, Billy Joe Reynolds, was convicted of a sex crime in Missouri in 2001 and sentenced to imprisonment.   Upon his release in 2005, he registered under Missouri law and subsequently updated and verified his registration as required by Missouri law.

In November 2007, Reynolds was charged and indicted with violating SORNA’s registration requirements after he moved to Pennsylvania without updating his registration. He moved to dismiss the indictment, arguing — among other things — that the Attorney General’s rule violated the APA.   The district court denied the motion, and Reynolds entered a conditional plea, reserving the right to appeal the denial of his motion to dismiss.   The Third Circuit affirmed, ruling that SORNA’s registration requirements applied to pre-enactment offenders by their own force, even without the additional rule by the Attorney General.  The court concluded that Reynolds therefore had no stake in the rule and no standing to challenge it.  (It is not clear if this case involves formal Article III standing, or “standing" in its more colloquial sense.   But it doesn’t matter: either way, Reynolds has to show that he had some stake in the Attorney General’s rule.)  This appeal followed....

[T]his case is not framed to present the more interesting constitutional issues around SORNA. The Court will almost surely limit its ruling to the precise standing issue here. Given all this, we might wonder why the Court even agreed to hear the case. It’s likely that the Court just needed to resolve a circuit split — a simple explanation for a surprisingly narrow case.

I share the view that Reynolds is a "surprisingly narrow case" — I am even inclined to call it annoying narrow given all the broader constitutional and statutory issues that surround SORNA.  That said, I suspect today's oral argument and the ultimate ruling in Reynolds could provide some hints as to how various Justices view SORNA and its many notable "big federal government" elements.

Plans for modern leper sex offender colony in Florida

A helpful reader alerted me to this local story from Florida, which is headlined "Sex offender village planned for Lake County" and starts this way:

A Central Florida woman wants to house hundreds of sex offenders in rural Lake County. The planned sex offender village would start with 288 predators and offenders in a leased facility, but could expand to 1,100 on 500 acres.

Barbara Farris, head of a new organization called S.O Solutions, Inc., sees the remote spot as a solution to housing sex offenders she's been fighting to keep out of neighborhoods. "It's not right in city limits.  We're miles away between Sorrento and Sanford," she said.

The goal of the facility would be to take offenders away from the temptation to offend again by living near children. "They have an atmosphere where they're not looking out their window at kids in a park, not a mile away from your school," said Farris. She also says they would offer not only housing, but monitoring, counseling, help finding a job, and transportation.

"Honestly, I wanted to cry. I was absolutely furious," said mother of a year old girl Victoria Morris, who lives just outside Sorrento. "This can't happen to our neighborhood." The mother started a Facebook page and a petition she's just started to circulate online to fight the plans of a sex offender village.