Sentencing Law and Policy

"Why Has Obama Pardoned So Few Prisoners?"

The title of this post is the headline of this new commentary by Sasha Abramsky which will appear in the January 28, 2013 issue of The Nation. (Hat tip: How Appealing.) The piece gives particular attention to the sad case of my former habeas client Weldon Angelos, and here are excerpts:

Six and a half years ago, I drove out to Lompoc federal penitentiary in the hills outside Santa Barbara to interview Weldon Angelos, a young man who had received the improbable sentence of fifty-five years without parole for selling marijuana, ostensibly while carrying a small pistol in an ankle holster.

A rap artist from Salt Lake City and friend to Napoleon and other eminences of the hip-hop world, Angelos had been ensnared by an informant in a series of undercover marijuana purchases that reeked of entrapment. What might have been a two-bit state pot case became a high-stakes federal case. When Angelos — who denied carrying a gun when dealing — refused to enter a guilty plea, the feds played hardball, piling more indictments onto the original charge.  In December 2003, more than a year after he had been arrested, Angelos was found guilty on several counts, though he was acquitted on others.  Because of mandatory minimum statutes linked to the firearms charges, the presiding judge — a George W. Bush appointee named Paul Cassell — was left with no discretion at sentencing. After asking the prosecuting and defense attorneys to advise him on the constitutionality of the sentence, a distraught Cassell handed down the fifty-five-year term, a punishment he called “unjust, cruel and even irrational.”  In his opinion, he urged then-President Bush to pardon the young father of three and right a clear judicial wrong.

Angelos was 23 when he was arrested.  He was in his mid-20s when I met him. It was such an obvious injustice that I thought the odds were pretty good he’d be out of prison by the time he was 30.  Surely one or another president would pardon him or commute his sentence, either reducing it or allowing him to be released on time served.

But today Angelos is in his early 30s and fast approaching his ten-year anniversary behind bars. Bush didn’t pardon him.  Neither has President Obama — despite earlier pleas on Angelos’s behalf from several ex-governors, dozens of ex–federal prosecutors and judges, and four US attorneys general; despite growing concerns over mandatory minimum sentences from members of Congress; despite the pledge by onetime Salt Lake City mayor and civil rights lawyer Rocky Anderson to “do anything I can to remedy this unbelievable injustice”; despite The Washington Post and other leading publications urging clemency; despite the fact that, at least rhetorically, the Obama administration has moved away from the sensational, fearmongering tactics of the drug war, and that drug czar Gil Kerlikowske doesn’t even like to talk about a “war on drugs”; despite the fact that in late 2012 Obama said the feds had “bigger fish to fry” than prosecuting marijuana users in states moving toward legalization; despite the fact that one state after another has rolled back its most draconian mandatory minimum sentences for small-time drug users and dealers....

So why hasn’t Obama done the right thing? Could it be that Angelos has just gotten lost in the shuffle? Possibly — but if that’s the reason, there would be evidence that Obama has used his pardon and commutation powers wisely in other cases. Unfortunately, that’s not true....

A president who talks the talk about more sensible, nuanced drug policy, and whose oratory frequently invokes what is best in the American political imagination, has shown himself remarkably reluctant to use one of the most important of presidential prerogatives—the power to right judicial wrongs. “This president,” says Anderson, “has been unbelievably timid and disinclined to do justice in cases that scream out for commutation.  There’s not a lot of moral or political fortitude in play.”...

In the long run, when it comes to preventing future unjust sentences like the one given Angelos, Congress and state legislatures should be the ones to roll back the excesses of the drug war.  And there’s no doubt that Obama, a constitutional law scholar, understands how much more powerful legislation is than the willful, even capricious, pardon function of the president. (After all, Clinton was excoriated for what appeared to be pardons issued in exchange for campaign and other contributions.  And Bush was heavily criticized for commuting the prison term of his disgraced adviser Lewis Libby.)  But when there’s a massive miscarriage of justice — as has happened all too often during the forty years of the “war on drugs” — the president’s ability to pardon or commute sentences is vital.

How does one tell Weldon Angelos’s kids that their father will not only never walk them to school but that he will never walk their children to school?  That if he survives fifty-five years in prison, he might get out just in time to walk his great-grandchildren to school. It’s unconscionable that such a sentence should stand.  If Angelos and other drug war prisoners with absurd sentences remain in prison through Obama’s second term, it will be a stain on the president’s legacy.

"Plead Guilty or Go to Prison for Life"

The title of this post is the headline of this new commentary concerning the Chris Williams' case and authored by Jacob Sollum over at Reason.com.  The sub-headline is "The stark choice given a medical marijuana grower highlights the injustice of mandatory minimums," and here are excerpts:

Chris Williams, a Montana medical marijuana grower, faces at least five years in federal prison when he is sentenced on February 1. The penalty seems unduly severe, especially because his business openly supplied marijuana to patients who were allowed to use it under state law.

Yet five years is a cakewalk compared to the sentence Williams originally faced, which would have kept the 38-year-old father behind bars for the rest of his life. The difference is due to an extremely unusual post-conviction agreement that highlights the enormous power prosecutors wield as a result of mandatory minimum sentences so grotesquely unjust that in this case even they had to admit it....

For a while it seemed that Williams, who rejected a plea deal because he did not think he had done anything wrong and because he wanted to challenge federal interference with Montana's medical marijuana law, also was destined to die in prison. Since marijuana is prohibited for all purposes under federal law, he was not allowed even to discuss the nature of his business in front of the jury, so his conviction on the four drug charges he faced, two of which carried five-year mandatory minimums, was more or less inevitable.

Stretching Williams' sentence from mindlessly harsh to mind-bogglingly draconian, each of those marijuana counts was tied to a charge of possessing a firearm during a drug trafficking offense, based on guns at the Helena grow operation that Williams supervised and at Flor's home in Miles City, which doubled as a dispensary. Federal law prescribes a five-year mandatory minimum for the first such offense and 25 years for each subsequent offense, with the sentences to run consecutively.

Consequently, when Williams was convicted on all eight counts, he faced a mandatory minimum sentence of 80 years for the gun charges alone, even though he never handled the firearms cited in his indictment, let alone hurt anyone with them. This result, which federal prosecutors easily could have avoided by bringing different charges, was so absurdly disproportionate that U.S. Attorney Michael Cotter offered Williams a deal.

Drop your appeal, Cotter said, and we'll drop enough charges so that you might serve "as little as 10 years." No dice, said Williams, still determined to challenge the Obama administration's assault on medical marijuana providers. But when Cotter came back with a better offer, involving a five-year mandatory minimum, Williams took it, having recognized the toll his legal struggle was taking on his 16-year-old son, a freshman at Montana State University.

"I think everyone in the federal system realizes that these mandatory minimum sentences are unjust," Williams tells me during a call from the Missoula County Detention Facility. But for prosecutors they serve an important function: "They were basically leveraging this really extreme sentence against something that was so light because they wanted to force me into taking a plea deal." Nine out of 10 federal criminal cases end in guilty pleas.

The efficient transformation of defendants into prisoners cannot be the standard by which we assess our criminal justice system. If the possibility of sending someone like Chris Williams to prison for the rest of his life is so obviously unfair, why does the law allow it, let alone mandate it?

I am glad to see the Williams' case continuing to get attention and criticism, but this commentary overlooks what strikes me as one of the worst parts of the deal with federal devil that Williams was forced to accept: in the deal, Williams waived all of his appeal rights to challenge his convictions so that he would not be able to continue with his lawful and courageous challenge to the federal laws with which he was prosecuted.

Prior posts on Williams case and related prosecutions:

• Novel post-trial federal "sentencing settlement" for Montana medical marijuana provider
• Montana medicial marijuana activist gets (way-below-guideline?) probation sentence

Spotlighting connection between mental illness and extreme three-strike sentences

Yesterday's New York Times ran this interesting editorial by Brent Staples concerning the impact and import of the recent reform of California's three-strikes law.  The piece has a particular focus on the role mental illness may play in many of the most troubling sentencing outcomes resulting from extra tough recidivism sentencing enhancements.  The piece is headlined "California Horror Stories and the 3-Strikes Law," and here are excerpts:

Californians brought a close to a shameful period in the state’s history when they voted this month to soften the infamous “three strikes” sentencing law.  The original law was approved by ballot initiative in 1994, not long after a parolee kidnapped and murdered a 12-year-old girl.  It was sold to voters as a way of getting killers, rapists and child molesters off the streets for good.

As it turned out, three strikes created a cruel, Kafkaesque criminal justice system that lost all sense of proportion, doling out life sentences disproportionately to black defendants.  Under the statute, the third offense that could result in a life sentence could be any number of low-level felony convictions, like stealing a jack from the back of a tow truck, shoplifting a pair of work gloves from a department store, pilfering small change from a parked car or passing a bad check.  In addition to being unfairly punitive, the law drove up prison costs.

The revised law preserves the three-strikes concept, but it imposes a life sentence only when the third felony offense is serious or violent, as defined in state law.  It also authorizes the courts to resentence thousands of people who were sent away for low-level third offenses and who present no danger to the public.

The resentencing process is shaping up as a kind of referendum on the state’s barbaric treatment of mentally ill defendants, who make up a substantial number of those with life sentences under the three-strikes rule.  It is likely that many were too mentally impaired to assist their lawyers at the time of trial.

Mentally ill inmates are nearly always jailed for behaviors related to their illness. Nationally, they account for about one-sixth of the prison population.  The ratio appears to be higher among three-strike lifers in California.  According to a 2011 analysis of state data by Stanford Law School’s Three Strikes Project, nearly 40 percent of these inmates qualify as mentally ill and are receiving psychiatric services behind bars....

Asked about the relationship of mental illness and three-strikes prosecutions, Michael Romano, director of the Stanford project, responded, “In my experience, every person who has been sentenced to life in prison for a nonserious, nonviolent crime like petty theft suffers from some kind of mental illness or impairment — from organic brain disorders, to schizophrenia, to mental retardation, to severe P.T.S.D.,” or post-traumatic stress disorder. Nearly all had been abused as children, he pointed out.  All had been homeless for extended periods, and many were illiterate. None had graduated from high school.

In other words, these were discarded people who could be made to bear the brunt of this brutal law without risk of public backlash.... And as more cases unfold in court, judges, lawyers and Californians should look back with shame at the injustice the state inflicted on a vulnerable population that often presented little or no danger to the public.

Some recent related posts:

• California voters appear to be approving three-strikes reform, rejecting death penalty repeal
• Intriguing accounts of how California's three-strikes reform will be implemented
• Effective report on three-strikes reform implementation in San Diego
• First California prisoner released under reformed three-strikes has lots of voters to thank

Another obvious mandatory sentencing injustice in Florida "warning shot" case

As reported in this CNN story, headlined "Florida woman sentenced to 20 years in controversial warning shot case," another high-profile shooting case in Florida has produced a different kind of criminal justice controversy.  Here are the details:

Saying he had no discretion under state law, a judge sentenced a Jacksonville, Florida, woman to 20 years in prison Friday for firing a warning shot in an effort to scare off her abusive husband.

Marissa Alexander unsuccessfully tried to use Florida's controversial "stand your ground" law to derail the prosecution, but a jury in March convicted her of aggravated assault after just 12 minutes of deliberation.

The case, which was prosecuted by the same state attorney who is handling the Trayvon Martin case, has gained the attention of civil rights leaders who say the African-American woman was persecuted because of her race.

After the sentencing, Rep. Corrine Brown confronted State Attorney Angela Corey in the hallway, accusing her of being overzealous, according to video from CNN affiliate WJXT. "There is no justification for 20 years," Brown told Corey during an exchange frequently interrupted by onlookers.  "All the community was asking for was mercy and justice," she said.

Corey said she had offered Alexander a plea bargain that would have resulted in a three-year prison sentence, but Alexander chose to take the case to a jury trial, where a conviction would carry a mandatory sentence under a Florida law known as "10-20-life." The law mandates increased penalties for some felonies, including aggravated assault, in which a gun is carried or used.

Corey said the case deserved to be prosecuted because Alexander fired in the direction of a room where two children were standing. Alexander said she was attempting to flee her husband, Rico Gray, on August 1, 2010, when she picked up a handgun and fired a shot into a wall.  She said her husband had read cell phone text messages that she had written to her ex-husband, got angry and tried to strangle her.

She said she escaped and ran to the garage, intending to drive away.  But, she said, she forgot her keys, so she picked up her gun and went back into the house. She said her husband threatened to kill her, so she fired one shot. "I believe when he threatened to kill me, that's what he was absolutely going to do," she said.  "That's what he intended to do. Had I not discharged my weapon at that point, I would not be here."...

A jury convicted Alexander in March and Judge James Daniel denied her request for a new trial in April.  Daniel handed down the sentence Friday after an emotional sentencing hearing during which Alexander's parents, 11-year-old daughter and pastor spoke on her behalf.

Several people had to be escorted from the courtroom after breaking out singing and chanting about a perceived lack of justice in the case, but Daniel made a point to say that he had no choice under state law. "Under the state's 10-20-life law, a conviction for aggravated assault where a firearm has been discharged carries a minimum and maximum sentence of 20 years without regarding to any extenuating or mitigating circumstances that may be present, such as those in this case," Daniel said.

Brown, the Jacksonville congresswoman, told reporters after the sentencing that the case was a product of "institutional racism."

"She was overcharged by the prosecutor.  Period," Brown said.  "She never should have been charged."  Brown has been more complimentary about Corey's work in the Trayvon Martin case, where her office filed second degree murder charges against neighborhood watch volunteer George Zimmerman in the February 26 death of the unarmed African-American teen-ager.

It is sad, very disappointing and ultimately quite harmful that Rep. Corrine Brown is apparently so eager to assert that the injustice in this case reflects "institutional racism" and misuse of prosecutorial discretion.  It seems far more appropriate to complain that the injustice in this case reflects structural flaws in Florida's sentencing laws and mistakes by the state legislature to fail to provide a safety-valve from the application of broad mandatory sentencing provisions.

As the CNN story reveals, the prosecutor apparently had the ability and authority to prevent application of Florida's "10-20-life" sentencing law if Marissa Alexander had been wiling to forgo her constitutional right to trial to have the judicial system consider her self-defense claims.  But after Alexander decided to exercise her trial rights, then her conviction apparently deprived a judge or any other authority the ability and authority to sentence her to anything less than 20 years in prison.  Without knowing more about the case, I am not sure if the three-year term offered in the plea or even a lesser sentence would have been appropriate, but it seem obvious to me that a 20-year term is grossly excessive for Alexander's offense conduct.

Bemoaning this case as a reflection of "institutional racism" brings far more heat than light to this dark (but not uncommon) example of mandatory sentencing injustice.  A focus instead on the problems with letting only prosecutors and not judges decide if a case merits an exception to strict sentencing rules could help this case engender needed structural reforms rather than more racial polarization.  Helpfully, the folks at FAMM are effectively using this case to bring attention to these critical sentencing matters, but I fear that the eagerness of Rep. Corrine Brown to play the race card will eclipse FAMM's efforts to use this kind of case to foster sober and needed sentencing reforms.

Though I am not certain of the sentencing commutation authority of Florida's Governor, this case seems to cry out for executive clemency.  Though involving a very offense environments, I am reminded of the high-profile "border agent" case from a few years ago in which two federal border agents got saddled with a sentences of more than a decade after failed self-defenses claims due mandatory federal gun sentencing provisions.  On his last day in office, as detailed here, President George W. Bush justifably commuted the sentences of these border agents.  I hope Florida's Governor has both the power and the wisdom to use the same means to undue an obvious sentencing injustice in this case.

Notable recent state child porn sentencing developments in South Dakota

Thanks to this brief new AP article, which is headlined "South Dakota child pornography convict gets 100-year prison sentence cut about in half," I learned about a fascinating ruling from last year by the South Dakota Supreme Court in South Dakota v. Bruce, 2011 S.D. 14 (SD April 6, 2011) (available here).

Working backwards, here is the latest sentencing news in this notable case:

A 100-year prison sentence handed down to a Pierre man convicted of possessing child pornography has been cut about in half.  The South Dakota Supreme Court last year ruled that the initial sentence for 48-year-old Troy Bruce was excessive and ordered a new sentencing.

KCCR radio reports that Judge Mark Barnett on Tuesday sentenced Bruce to a total of 55 years in prison.  Bruce will be eligible for parole after serving one-fourth of the sentence. He also was given credit for about two years he already has served behind bars.

This report prompted me to wonder if the South Dakota Supreme Court had actually deemed a child porn sentence to be unconstitutional, and the Bruce ruling nearly does.  Here are notable snippets from the majority opinion in Bruce:

Bruce was convicted of possessing one DVD containing fifty-five videos of child pornography.  He received the ten-year maximum sentence on all fifty-five counts.  Forty-five of the sentences were suspended, but the sentences on the remaining ten counts were to be served consecutively resulting in a total sentence of 100 years.  Bruce contends that this sentence was cruel and unusual punishment under the Eighth Amendment....

When such statutory ranges are established, the legislative intent is that "the more serious commissions of [the] crime . . . deserve sentences at the harsher end of the spectrum.... Imposing the maximum possible term where the circumstances of the crime only justify a sentence at a lower range violates legislative intent to reserve the most severe sanctions for the most serious combinations of the offense and the background of the offender.” Bonner, 1998 S.D. 30, ¶ 25.   Further, we now adopt Justice Konenkamp’s recommendation “that courts look at two additional determinants when assessing the seriousness of a child pornography offense: (1) the specific nature of the material and (2) the extent to which the offender is involved with that material.” Blair, 2006 S.D. 75, ¶ 83....

With respect to the seriousness of this offense, the pornography involved much more than lewd images but less than the worst possible material covered by the statute....

With respect to Bruce’s involvement, he was convicted of possessing the one DVD containing fifty-five images. Although thirty other discs containing child pornography images were found, the court “consider[ed] Counts 1 through 10 as one act” for the purpose of determining parole eligibility. Additionally, there was no evidence that Bruce manufactured or distributed child pornography. Finally, there was no evidence suggesting that Bruce had ever sexually abused a child, had sexual contact with a child, or solicited a child for sexual images. This was a case of simple possession of images.

Bruce’s character and history reflect that he was a divorced forty-eight year old with three children, one who was still a minor. Other than a careless driving offense, Bruce had no prior criminal history. He was a former member of the National Guard and a veteran who had served in Saudi Arabia and Iraq during Operation Desert Storm....

Bruce’s maximum sentences were not reserved for the most serious combination of criminal conduct and background of the offender. We therefore conclude that this is the exceedingly rare case in which Bruce’s sentence was grossly disproportionate to the “particulars of the offense and the offender.” See Bonner, 1998 S.D. 30, ¶ 25. Because Bruce did not present comparative information with which to conduct an intra- and interjurisdictional analysis, we reverse and remand to the circuit court to consider that evidence on resentencing.

A concurring opinion in Bruce adds these notable observations:

In South Dakota, gross disparity in the sentence length for possession of child pornography exists.  For example, in State v. Martin, 2003 S.D. 153, 674 N.W.2d 291, the defendant’s sentence for possession of child pornography was a term of two years in the penitentiary with all but forty-five days in jail suspended subject to additional conditions. In the present case, the aggregate sentence is a term of 100 years in the penitentiary. Yet the facts of the two cases are similar: both involve the possession but not the manufacture or distribution of multiple computer-based images of child pornography. The difference in the length of the sentences for these similar crimes is shocking.

I think it is safe to assert that, not just in South Dakota, but all across this great nation, "gross disparity in the sentence length for possession of child pornography exists."  I have seen and heard of many state (and few federal cases) in which a child porn possession conviction results in only months in prison, and yet a few months ago in Florida (as reported here) Daniel Enrique Guevara Vilca received a sentence of life without the possibility of parole for mere child porn possession!  What a sad and disturbing mess.

"Mom of 4 reflects on first year in prison for $31 pot sale"

The title of this post is the headline of this new article in the Tusla World, which provides an update on a state drug sentencing story that I have previously covered.  Here are excerpts from the interesting piece:

[Patricia] Spottedcrow, 26, was arrested and charged for selling $31 in marijuana to a police informant in December 2009 and January 2010.  [Her mother, Delita] Starr, 51, was also charged. Because children were in the home, a charge of possession of a dangerous substance in the presence of a minor was added.

In blind pleas before a judge, Spottedcrow received a 12-year sentence and her mother received a 30-year suspended sentence.  Neither had prior criminal convictions. The judge sentencing the two said she allowed Starr to avoid prison so she could care for Spottedcrow's children.

When Spottedcrow was booked, after her sentence was handed down, marijuana was found in the jacket she was wearing. She pleaded guilty to that additional charge and was sentenced to two years running concurrent with the previous sentence.

After her story was published in the Tulsa World, a groundswell of support grew. Supporters expressed concern with possible racial bias, unequal punishment among crimes, women in prison, effects on children of incarcerated parents and extreme sentences for drug offenses.

Oklahoma City attorney Josh Welch has been donating his services to fight what he calls an inequitable punishment.  In October, a Kingfisher County judge took four years off her sentence. The judge issued an order rather than allow her an appearance in court. Her attorney and supporters believe it was to avoid the crowd expected to be at the courthouse that day.

Welch said he plans to file for post-conviction relief, alleging the original attorney was ineffective and had a conflict in representing Spottedcrow and her mother. He plans to make the filing in early January and submit an early parole packet at the same time. "We are grateful to get four years taken off her sentence but still believe the sentence is unjust and excessive," Welch said....

"The first eight months were a blur," Spottedcrow said. "I just cried a lot. It's like I woke up a couple of months ago." Her daily schedule starts with breakfast at 5:30 a.m., followed by her job in the laundry. At 4:30 p.m., she is released and goes to the gym, followed by dinner and then church at 7 p.m.  "You have to try and keep your mind busy," she said. "It's easy to get sad, depressed and stuck in your own head in here."

Prison is no picnic, even at a minimum-security campus like Eddie Warrior, she said. "I took for granted using the bathroom by myself, what clothes you can wear and being able to pick up and go to the store when you want," Spottedcrow said.  "I hate not being able to use your own shampoo and you are limited to spending $10 a month (in the commissary)."

But it's her kids taking up most of her thoughts.  "I was there every day taking of care of them before this," she said.  "I did everything from going to football games and PTA."

While in prison, Spottedcrow has taken parenting classes, finished her GED and participates in a grief/loss recovery program, a behavior course, Alcoholics Anonymous/Narcotics Anonymous and a faith-based program.  She is on a waiting list to begin higher education and Career Tech classes.  "The life I was living before, that's over," Spottedcrow said. "I'm not playing with my life anymore. I would never chance this again for my children."

Spottedcrow never denied she smoked pot but said she was never a drug dealer or ever used or sold marijuana in front of her children.  "I got myself in this situation, and I'm not saying I shouldn't be punished," she said.  "But I think this is a little excessive, especially looking at other cases from my county.  And I'm sleeping next to people who have killed people, and they have less time than me. There are days I really can't believe I'm in prison."

In prison, she has had three misconducts: one for bartering when she gave an inmate cigarettes, one for having contraband when cookies were found in her locker without a receipt and another for aiding and abetting when she did not tell authorities a woman put bleach in the laundry area.  "I have a big heart," she said.  "When I see someone in need, like for food, I want to help if I can.  But you can get a misconduct in here for the littlest things."...

At the Kingfisher home, it's been a tough existence and one that is relying on the generosity and help of others.  Spottedcrow's oldest child has been acting out since her incarceration.

"He's in trouble for stealing, and his mouth is real swift and sharp," Starr said.  "He blames me a lot for what happened to his mother.  The girls want to cry a lot.  They don't like to listen to me, saying, 'You're not my mother.' We struggle every day."

Related prior posts on Spottedcrow's crime and punishment:

•  "How $31 of pot gave mom a 10-year-prison sentence"
• "Mom who sold $31 in pot seeks reduction to 12-year sentence"

Eighth Circuit panel unanimously affirms Rubashkin federal convictions and lengthy prison sentence

The Eighth Circuit has handed down an opinion today in US v. Rubashkin, No. 10-2487 (8th Cir. Sept. 16, 2011) (available here), a high-profile white-collar case out of the heartland involving financial frauds at a kosher meat-packing plant.  The panel has unanimously affirmed the Sholom Rubashkin's conviction and sentence; I have followed this case closely, in part because I helped file an amicus brief complaining about what I considered to be an unreasonable of 27-year (within-guideline) federal prison sentence for the defendant's offense conduct.

Though disappointed with the ruling here, I am not especially surprised given the Eighth Circuit's history in sentencing appeals.  (That history, along with the frequency with which the Supreme Court has reviewed and reversed the Eighth Circuit's work since Booker, might well mean this case will get more appellate attention in the future).  Here is an excerpt of the Rubashkin panel's sentencing discussion:

Rubashkin argues that his 324 month sentence was substantively unreasonable given his age, nonviolence, lack of criminal history, unlikelihood of recidivism, family obligations, and the principal motives for his acts,.  We review the imposition of a sentence under "a deferential abuse-of-discretion standard."  United States v. Hayes, 518 F.3d 989, 995 (8th Cir. 2008) (quoting Gall, 552 U.S. at 41).  Sentences within the guideline range are presumed to be substantively reasonable.  United States v. Robinson, 516 F.3d 716, 717 (8th Cir. 2008).

Not only was Rubashkin's sentence of 324 months within the guideline range, it was at the low end of it.  Rubashkin argues that because of his past charitable acts and his family obligations he should have been granted a downward departure.  These are the very characteristics that the district court properly took into account when considering the § 3353(a) factors.  The court weighed Rubashkin's past charitable acts, nonviolence, and the needs of his family against his involvement in multiple fraudulent schemes and the millions of dollars in damage they caused.  The cases Rubashkin cites in favor of his unreasonableness argument illustrate instances where downward departures based on charity or family needs have been affirmed.  Nothing requires a sentencing court to depart on such grounds.  Under all the circumstances the district court did not abuse its considerable discretion in imposing a 324 month sentence.

Related posts on the Rubashkin case:

• "More Former AGs Question Sentence Sought in Bank Fraud Case"
• Can and should religious considerations influence bail decisions?
• Federal sentencing hearing starting in high-profile Rubashkin white-collar case
• Federal prosecutors now seeking 25-year prison term for Rubashkin
• Kosher plant chief Sholom Rubashkin sentenced to 27 years imprisonment
• An appellate amicus brief in the Rubashkin case on sentencing issues

"'Perfect Storm of Injustice'? N.J. Man Serving 7 Years for Guns He Legally Owned"

The title of this post is the headline of this notable story via ABC News.  Here are some of the details, which appears to involve yet another example of mandatory minimum sentencing terms producing another example of excessive over-punishment:

Brian Aitken, 25, a successful media consultant, had been in the process of selling his home in Colorado and moving to a suburban New Jersey apartment to be closer to his son, 2.   But on the afternoon of Jan. 3, 2009, the stress of a recent divorce and messy cross-country move caused him to crack.  Aitken stormed out of his parent's suburban home in Mount Laurel, N.J., hopped into his car filled with belongings and set out on a drive to cool off.

Aitken's mother, a social worker trained to be sensitive to suicidal indicators, instinctively dialed 911 but abruptly hung up, second-guessing her reaction.  But police tracked the call, came to the Aitken's home and greeted Brian when he returned to make sure he was OK. Then, they asked to search his car.

Buried in the trunk, beneath piles of clothes and boxes of dishes, was a black duffle bag holding a boot box containing two handguns; "unloaded, disassembled, cleaned and wrapped in a cloth," his father said.  There were also several large-capacity magazines and cartons of hollow-point bullets.

Aitken had legally purchased the guns at a Denver sporting goods store two years earlier, he said.  But transporting a gun without a special permit or in a handful of exempt situations is illegal in New Jersey, giving officers no choice but to arrest Aitken and charge him with a crime.  The magazines and bullets are also illegal in the state, experts said....

"For quite some time I was pretty confident as soon as intelligent people with logical minds took a look at what happened they might slap him with a fine or something," Aitken's father Larry said. "When the prosecutor came down with an indictment, I was dumbfounded."

But after a two and a half day trial in August, a jury convicted Aitken of the charges and a judge sentenced him to 7 years in prison.  So family and friends have launched a grassroots campaign to set him free, even appealing to New Jersey Gov. Chris Christie for a pardon or reprieve....

[T]he judge in the case did not allow the jury to consider the moving exemption during the trail, ruling that no evidence was presented that Aitken was actually moving at the time the guns were found.  Aitken did not testify in the trial.

"The defendant's attorneys presented evidence that his house was for sale and that at the time of arrest he was travelling from one residence in New Jersey to another," Joel Bewley, a spokesman for the Burlington County Prosecutor's Office, told ABC News.... "This sentence was entirely and statutorily mandated upon this conviction," Bewley said.

NY Times op-ed spotlights extreme jury sentences in Mississippi

Today's New York Times includes this remarkable op-ed by Bob Herbert concerning a pair of extreme sentences in Mississippi.  The piece is headlined "So Utterly Inhumane, and here are excerpts:

You have to believe that somebody really had it in for the Scott sisters, Jamie and Gladys.  They have always insisted that they had nothing to do with a robbery that occurred near the small town of Forest, Miss., on Christmas Eve in 1993.  It was not the kind of crime to cause a stir.  No one was hurt and perhaps $11 was taken.

Jamie was 21 at the time and Gladys just 19.  But what has happened to them takes your breath away.  They were convicted by a jury and handed the most draconian sentences imaginable — short of the death penalty. Each was sentenced to two consecutive life terms in state prison, and they have been imprisoned ever since.  Jamie is now 38 and seriously ill. Both of her kidneys have failed.  Gladys is 36....

The authorities did not even argue that the Scott sisters had committed the robbery.  They were accused of luring two men into a trap, in which the men had their wallets taken by acquaintances of the sisters, one of whom had a shotgun.

It was a serious crime.  But the case against the sisters was extremely shaky.  In any event, even if they were guilty, the punishment is so wildly out of proportion to the offense that it should not be allowed to stand.

Three teenagers pleaded guilty to robbing the men.  They ranged in age from 14 to 18.  And in their initial statements to investigators, they did not implicate the Scott sisters.  But a plea deal was arranged in which the teens were required to swear that the women were involved, and two of the teens were obliged, as part of the deal, to testify against the sisters in court....  The teens were sentenced to eight years in prison each, and they were released after serving just two years.

This is a case that should be repugnant to anyone with the slightest interest in justice.  The right thing to do at this point is to get the sisters out of prison as quickly as possible and ensure that Jamie gets proper medical treatment.

A number of people have taken up the sisters’ cause, including Ben Jealous, the president of the N.A.A.C.P., who is trying to help secure a pardon from Gov. Haley Barbour of Mississippi.  “It makes you sick to think that this sort of thing can happen,” he said.  “That these women should be kept in prison until they die — well, that’s just so utterly inhumane.”

I have no idea why the authorities were so dead set on implicating the Scott sisters in the crime and sending them away for life, while letting the teens who unquestionably committed the robbery get off with much lighter sentences.

Life sentences for robbery can only be imposed by juries in Mississippi, but it is extremely rare for that sentencing option to even be included in the instructions given to jurors.  It’s fair to think, in other words, that there would have to be some extraordinary reason for prosecutors and the court to offer such a draconian possibility to a jury....

The reason for giving the jury the option of imposing life sentences in this case escapes me.  Even the original prosecutor, Ken Turner, who is now retired and who believes the sisters were guilty, has said that he thinks it would be “appropriate” to offer them relief from their extreme sentences.  He told The Clarion-Ledger in Jackson, Miss., “It was not a particularly egregious case.”

The appeals process for the women has long since been exhausted. It is up to Governor Barbour, who is considering petitions on the sisters’ behalf, to do the humane thing.  A pardon or commutation of sentence — some form of relief that would release Jamie and Gladys Scott from the hideous shackles of a lifetime in prison — is not just desirable, it’s absolutely essential.

Terrific examination of prosecutorial discretion, politics and other three-strikes realities in California

Today's New York Times magazine has this must-read article by Emily Bazelon headlined "Arguing Three Strikes." Here are just a few extended excerpts that make the piece so very interesting and effective and telling:

In 2000, ... Steve Cooley became the district attorney for Los Angeles County. Cooley is a Republican career prosecutor, but he campaigned against the excesses of three strikes.  “Fix it or lose it,” he says of the law.  In 2005, Cooley ordered a review of cases, to identify three-strikes inmates who had not committed violent crimes and whose life sentences a judge might deem worthy of second looks.  His staff came up with a list of more than 60 names....

Twenty-five other states have passed three-strikes laws, but only California punishes minor crimes with the penalty of a life sentence. About 3,700 prisoners in the state are serving life for a third strike that was neither violent nor serious, according to the legal definition. That’s more than 40 percent of the total third-strike population of about 8,500. Technically, these offenders are eligible for parole after 20 years, but at the moment, the state parole board rarely releases any prisoner early....

Now California is in the midst of fiscal calamity.  Supreme Court Justice Anthony Kennedy, who had been a judge in California, recently bemoaned state sentencing and spending on prisons. In an address at Pepperdine University, he said that “the three-strikes law sponsor is the correctional officers’ union, and that is sick!”  And yet Schwarzenegger has vowed not to touch the law.  Meg Whitman and Jerry Brown, the leading Republican and Democratic contenders to succeed him in November, are just as unbending....

Cooley ran for D.A. on a platform of restrained three-strikes enforcement, calling the law “a necessary weapon, one that must be used with precision and not in a scatter-gun fashion.” In office, he turned his critique into policy....  The presumption is that prosecutors ask for a life sentence only if a third-strike crime is violent or serious. Petty thieves and most drug offenders are presumed to merit a double sentence, the penalty for a second strike, unless their previous record includes a hard-core crime like murder, armed robbery, sexual assault or possession of large quantities of drugs.  During Cooley’s first year in office, three-strikes convictions in Los Angeles County triggering life sentences dropped 39 percent.  No other prosecutor’s office in California has a written policy like Cooley’s, though a couple of D.A.’s informally exercise similar discretion....

[I]n 2006, he offered up his own bill, which tracked his policy as D.A., taking minor drug crimes and petty theft off the list of three-strikes offenses unless one of the first two strikes involved a crime that Cooley considers hard-core.  For staking out even this middle ground, Cooley became prosecutor non grata among his fellow D.A.’s.  No district attorney, not even the most liberal, supported his bill, and it died in Senate committee.

Cooley could once again pay a price for his three-strikes record.  This spring, he announced his candidacy for California attorney general. His Republican rivals have hammered him for his moderate stance.  “He’s acting as an enabler for habitual offenders,” State Senator Tom Harman told me. “I think that’s wrong. I want to put them in prison.”  The race has developed into a litmus test: for 15 years, no serious candidate for major statewide office has dared to criticize three strikes.  If Cooley makes it through his party’s primary on June 8 — and especially if he goes on to win in November — the law will no longer seem untouchable.  If he loses, three strikes will be all the more difficult to dislodge....

While 694 convicted murderers sit on the state’s death row, only 13 have been executed since the Supreme Court allowed for reinstatement of the death penalty in 1976.  The 3,700 nonviolent, nonserious three-strikers serving life in California outnumber the 3,263 death-row inmates nationwide.

By working with three-strikers, [lawyer Michael] Romano is trying to highlight the plight of criminals he sees as more pathetic than heinous.  “I think about explaining to my kids what I do, and I see no moral ambiguity,” Romano says about his work.  Capital defendants, of course, deserve representation, he explains. “But there are other lives to be saved, of people who haven’t done horrible things, who haven’t actually hurt anyone.”

In practical terms, Romano points out, the difference between being convicted of capital murder and a small-time third strike is this: a murderer is entitled to a far greater share of legal resources. California spends at least $300,000 on the defense side of a capital murder trial.  The courts give extra scrutiny to each capital appeal that comes before them.  And it’s only in death-penalty cases that the state pays lawyers to file a writ of habeas corpus, the route to challenging a conviction once direct appeal has been exhausted.

A three-strikes case, by contrast, is just one more file in the stack on a public defender’s desk and a judge’s docket.  Romano has a client whose appellate lawyer cut and pasted into her brief for him the more serious criminal history of another man — incorrectly telling the judges that her client was far more violent when he actually was.

If Steve Cooley wins the Republican primary for attorney general, on almost every issue — most visibly the death penalty — he’ll run to the right of his probable Democratic opponent, the San Francisco district attorney Kamala Harris.  But on three strikes, Cooley will run to Harris’s left. (She didn’t support his 2006 proposal, though she is one of the prosecutors who, on a case-by-case basis, refrains from seeking a life sentence for some nonviolent three-strikers.)...

Cooley is couching his support for amending three strikes statewide more carefully during campaign season. “Any changes to the three-strikes law will have to be in the context of overall prison reform,” he told me in March. At the same time, Romano and Families to Amend California’s Three Strikes, the group that fought for Proposition 66, are increasingly interested in using Cooley’s Los Angeles policy as the basis for a new statewide reform effort in 2012, because it suggests a way to reserve life sentences for the three-strikers who have committed crimes of violence.

The statistic I have highlighted above, and the astute subsequent discussion of how many more legal resources are devoted to the most heinous murderers in California and elsewhere, reinforces my own strong belief (which I have expressed in this Harvard Law & Policy Review article and elsewhere) that progressives seriously interested in serious sentencing reforms must stop obsessing about the death penalty and should start obsessing about life sentences.

Put simply, in California and throughout the nation, there are lots of legal and social and political forces that now help ensure that few "lesser" murderers ever end up on death row.  Indeed, as the plea deals for the Green River Killer and repeat sex offender killer John Allen Gardner highlight, all but the most ardent death penalty abolitionists should probably be most concerned about the worst murderers often being able to avoid ending up on death row. 

In sharp contrast, there are lots of legal and social and political forces that now help ensure that many  "lesser" offenders end up facing actual or functional life sentences.  Consider these examples from just the last few weeks: Michelle Lyn Taylor recently got a life sentence in Nevada for forcing a teenage boy to touch her breasts; Sholom Rubashkin had federal prosecutors urging a life sentence for various fraud offenses; Enrique Prieto got a life sentence in Texas for assaulting an elderly man.

As this great NYTimes article spotlights, prosecutors always can and often will mitigate the harshest realities of life sentencing statutes through the exercise of their charging and bargaining discretion.  But, for many reasons, I do not think the Framers of our Constitution would have been too pleased with the notion that the only protection that many lesser offenders may have from a lifetime loss of human liberty is merely the unregulated and unexplained discretionary judgment of an executive branch prosecutor.

"FAMM Condemns Mandatory Life Sentence for NV Woman"

The title of this post is the heading of this new press release from the folks at Families Against Mandatory Minimums in response the the remarkable Nevada sentencing story discussed in this prior post.  Here is an excerpt from the press release:

According to published news reports, a jury convicted Ms. Taylor, 34, of lewdness with a minor under 14 for forcing a 13-year-old boy to touch her breast through her clothing and soliciting him for sex.  Conviction for lewdness with a minor under 14 carries a mandatory life sentence in Nevada with parole eligibility after 10 years.

"Based on what we've learned so far, we believe the life sentence handed to Ms. Taylor is a total travesty of justice," said Julie Stewart, FAMM founder and president.  "FAMM does not condone criminal behavior, especially where a minor is the victim, but no reasonable person can believe that the punishment fits the crime in this case.  Life sentences are usually reserved for murderers and repeat violent offenders."

"FAMM opposes mandatory minimum sentencing laws that carry disproportionate one-size-fits-all sentences and enormously expensive penalties.  Keeping Ms. Taylor in jail for the rest of her life could cost Nevada taxpayers well over $1 million.  This seems like a terrible waste of a life, and limited taxpayer resources," concluded Stewart.

A life sentence for a woman who forces a teenage boy to touch her breasts!?!?!

The exclamation/question that titles this post is my initial response to this remarkable local press story that a helpful student sent my way.  This press report discussed a remarkable local sentence handed down earlier this week in Nevada under the headline "T.F. woman sentenced to life for lewdness charge." Here are the remarkable details:

A Twin Falls woman convicted of forcing a 13-year-old boy to touch her breasts was sentenced Monday to life in prison. Michelle Lyn Taylor, 34, was convicted of lewdness with a minor under 14 in November after a week-long trial in Elko County, Nev., District Judge Mike Memeo’s courtroom.

With the conviction, Taylor faced a mandatory life sentence, and Memeo set parole eligibility after 10 years, the minimum sentence. If released on parole she must register as a sex offender and will be under lifetime supervision.

The district attorney’s office did not offer a plea agreement in the case, said public defender Alina Kilpatrick, who argued the sentence is unconstitutional and doesn’t fit the crime. “The jury was not allowed to know the potential sentence in this case and the Legislature doesn’t know the facts,” she said, alluding to the minimum sentence set by the Legislature in Nevada Revised Statute.

Kilpatrick said despite the parole eligibility after 10 years, there should be no mistake that it’s a life sentence for Taylor.  “She is getting a greater penalty for having a boy touch her breast than if she killed him,” she said.

After he sentenced her, Memeo said he was bound by state statute to impose the life sentence, but said he isn’t sure why the prosecution chose to charge her under that statute. District Attorney Gary Woodbury could not be reached for comment.

Taylor, who lived in Jackpot, Nev., at the time of the crime, kissed a friend’s child, forced him to touch her breast and asked him to have sex with her in February 2008.  Taylor claimed she was intoxicated and doesn’t remember what happened that night.  She told jurors she roughhoused with the boy, but didn’t force him to touch her inappropriately.

Based on the facts stated here, this case sounds like a remarkable test case for the reach and limits of the Eighth Amendment in non-capital punishment settings.  But I cannot help but think there must be more, perhaps a lot more, to this story.

New ACS issue brief making the case against juve LWOP

I just got word of this new issue brief from the folks at the American Constitution Society, which is titled "A Just Alternative to Sentencing Youth to Life in Prison Without the Possibility of Parole." This piece is authored by Jody Kent and Beth Colgan, and here is how ACS summarizes the work:

This Issue Brief is particularly timely in light of the Supreme Court’s consideration of the constitutionality of juvenile life sentences without the possibility of parole in two cases, Sullivan v. Florida and Graham v. Florida.  Ms. Kent and Ms. Colgan examine why, in their opinion, such sentencing practices represent deeply flawed public policy.  As the authors explain:

"Regardless of whether the Court extends [its precedent acknowledging that juveniles are different from adults] to find the sentencing of youth to life in prison without the possibility of parole unconstitutional, advocates for youth have called for reform of extreme sentencing policies, on the basis that they grossly undermine rational, fair, and age-appropriate treatment of youth."

Ms. Kent and Ms. Colgan discuss the well-established principle that youth are different from adults, and explain how this principle is reinforced by adolescent brain development research. The authors address and dismiss arguments that harsh sentencing is necessary to protect public safety, as well as highlight troubling racial disparities and inconsistent sentencing application.  In addition, they describe how such sentencing functions to undermine the United States’s moral standing, given that the United States is the only country in the world to sentence offenders under the age of eighteen to life without parole.  Finally, the Issue Brief concludes with Ms. Kent and Ms. Colgan proposing an alternative to the practice of sentencing youth to life in prison without the possibility of parole --- creation of a system allowing periodic review of sentences to determine whether individuals continue to pose a threat to society or may be returned to communities as productive citizens.  In the view of the authors, this approach balances the need to hold young offenders accountable, while still recognizing their inherent capacity for change and growth.

EJI files seeks cert on claim that juve LWOP is unconstitutional for 13-year-old offender

I just received a helpful e-mail from the folks at Equal Justice Initiative informing me of a recently filed cert petition challenging under the Eighth Amendment a sentence of life without parole given to an offender who was only 13 years old(!) at the time of his crime.  The full petition can be downloaded below, and here is additional information from this EJI link about this stunning case:

Joe Sullivan is one of only two 13-year-olds in the United States to be sentenced to die in prison for an offense in which no one was killed. Both of these sentences were imposed in Florida, making Florida the only state in the country to have sentenced a 13-year-old to die in prison for a non-homicide.

A severely mentally disabled boy, Joe was blamed by an older boy for a sexual battery that was allegedly committed when they broke into a home together.  The older boy received a short sentence in juvenile detention, but Joe was tried as an adult, convicted of sexual battery, and sentenced to life imprisonment without the possibility of parole.

Only eight people in the country are sentenced to die in prison for any offense committed at age 13.

The lawyer who represented Joe in his one-day trial has since been suspended from the practice of law, and the biological evidence that could have exonerated Joe was destroyed in 1993.  The lawyer appointed to represent Joe on appeal informed the court that there were no issues in his case worth appealing. Joe was unable to challenge his conviction and sentence earlier because he could not afford legal assistance.

Joe has spent 19 years in a Florida prison, where he has been assaulted and suffered deteriorating health. He is now confined to a wheelchair. 

When I learn about cases like this, I have a hard time believing that a country founded on the principles of liberty has become so willing to be so repressive through our criminal justice systems.  Regular readers will not be surprised to hear that I hope the US Supreme Court will take up this case.  And I am discouraged that this kind of case even exists and that officials in other branches of our government cannot bring themselves to address these kinds of sad cases and instead only will react if and when courts order them to be more just and sensible in their sentencing policies. 

Download Sullivan cert petition from EJI

Georgia high court finds mandatory life term for failure to register unconstitutionally excessive

The Atlanta Journal-Constitution has this article reporting on an important ruling yesterday in Georgia. The article is headlined "State Supreme Court: Sentence for sex offenders overruled; Life in prison breaks Eighth Amendment," and its provides an effective and detailed summary of the court's work:

The Georgia Supreme Court on Tuesday struck down another provision of the state’s tough sex-offender law, calling mandatory life sentences for offenders who fail to register a second time “grossly disproportionate” punishment.

In a 6-1 decision, written by Justice Robert Benham, the court said the life sentence imposed upon 26-year-old Cedric Bradshaw of Statesboro violates the Eighth Amendment’s guarantee against cruel and unusual punishment. “We conclude the imposition of a sentence of life imprisonment is so harsh in comparison to the crime for which it was imposed that it is unconstitutional,” Benham wrote....

On Tuesday, the court ordered Bradshaw, who tried repeatedly to find a place to live without breaking the law, to be re-sentenced. His lawyer, circuit public defender Robert Persse, applauded the ruling. “The state’s penalty provision was excessive and clearly disproportionate to the offense in question,” he said....

In his ruling, Benham noted that someone convicted of voluntary manslaughter or aggravated assault with the intent to murder, rob or rape can receive a sentence as lenient as one year.

Benham also compared Georgia’s mandatory life term with punishment called for in 23 other states.  Of the others, three states call for a maximum punishment of two years; 12 call for sentences of up to five years; six provide maximum terms of 10 years; two allow up to 20 years; and New Hampshire calls for a minimum seven-year sentence, Benham wrote. “Georgia’s mandatory punishment of life imprisonment is the clear outlier, providing the harshest penalty and providing no sentencing discretion,” Benham wrote.  “This gross disparity between Georgia’s sentencing scheme and those of the other states reinforces the inference that [Bradshaw’s] crime and sentence are grossly disproportionate.”

Chief Justice Leah Ward Sears, in a concurring opinion, said life sentences “should be reserved for society’s most serious criminal offenders … Bradshaw’s failure to register as a sex offender, when his underlying crime only landed him in jail for five years, is not the kind of crime a civilized society ought to require him to pay for with his life.”

Justice George Carley issued the lone dissent, calling the decision a “monumental abuse of this court’s authority to determine the constitutionality of legislation.” The Legislature’s amendment in 2006 calling for the mandatory life term “constitutes the clearest and most objective evidence of how society views a punishment,” he wrote.

The Supreme Court of Georgia's ruling in Bradshaw v. State is available at this link.  Writing at Sex Crimes, Corey Yung here asserts that "the majority is exactly right on this one."  I concur and I hope this ruling will embolden other courts to be more deliberative in discharging the constitutional duty to assess whether and when extreme terms of imprisonment are constitutionally excessive. 

Members of Congress push for commutation of Border Agent sentences

This AP article details the latest effort to encourage President Bush to use his clemency power to do some sentencing justice for two notable federal defendants.  Here are the specifics:

A handful of lawmakers want President George W. Bush to commute the sentences of two Border Patrol agents convicted of shooting a now-convicted drug smuggler and covering it up. The House members said Thursday that Bush should commute the sentence of the two men before he leaves office to show his concern for law enforcement officers and the danger of their jobs. They asked the Justice Department to recommend the agents' cases to Bush....

The lawmakers pushing for the pardon attorney to at least commute the sentence of the Border Patrol agents or possibly pardon them say his action on their plea will be a barometer for other pardons. Ignacio Ramos and Jose Compean were sentenced to 11 years and 12 years, respectively, after being convicted in 2006 of shooting now-convicted drug smuggler Osvaldo Aldrete Davila of Mexico and trying to cover up the incident.... "If you can't do it for Ramos and Compean, how can you do it for anyone on that list?" said Rep. Steve King, R-Iowa....

Rep. John Culberson, R-Houston, said lawmakers will pressure President-elect Barack Obama to show leniency to the agents if Bush does not. Other lawmakers who had signed a letter to the Justice Department's pardon attorney by Thursday morning are Rep. William Delahunt, D-Mass. and Republican Reps. Ted Poe of Texas, Dana Rohrabacher, Howard McKeon and Ed Royce of California and Walter Jones and Sue Myrick of North Carolina.

Some prior posts about the Border Agents case:

• President-elect Obama already getting pressure to pardon the border agents
• Bipartisan call for commuting border agent sentences
• Reports on Senate hearing on Border Agent case
• The furor over border agents' long sentences
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform
• Harsh border agent sentences producing half-truths

A challenge to severe Oregon sex offense sentences worth watching

Late last year, I blogged here and here about a fascinating and sad Oregon case involving a long mandatory prison term imposed on an adult female counselor convicted of unlawful heavy petting of her underage ward.  A helpful reader sent me this local news report on the oral argument in this case that took place last week before the Oregon Supreme Court.  Here are some details:

An attorney for a former employee of the Hillsboro Boy's and Girl's Club told the Oregon Supreme Court Tuesday that six-plus years in prison for touching her clothed breasts to the back of a 12-year-old boy's head amounted to cruel and unusual punishment.

A Washington County jury found Veronica Rodriguez, now 28, guilty of sex abuse in the first degree after Hillsboro investigators saw her breasts touch the boy's head while she ran her fingers through his hair at the club in 2005.

At sentencing, now-retired Judge Nancy Campbell said the circumstances only merited one year and four months in prison instead of the prescribed sentence of six years and three months required by 1994's voter-approved Measure 11.

Rodriguez and attorney Peter Garlan concede that Measure 11 is constitutional, but claim its application against Rodriguez violates Article 1, Section 16 — the proportionality clause of the Oregon Constitution.

Rodriguez's case is combined with another appeal from Linn County, where 36-year-old Darryl Buck was convicted of first-degree sex abuse for touching a 13-year-old girl's clothed buttocks several times during a fishing trip.  Garlan said the girl overreacted to Buck's using his hands to help her remain upright, and her "histrionics" had an effect on the jury.The judge agreed, and handed down a 17-month sentence, appropriate for the action, Garlan said.

The state's Court of Appeals rejected both judge's decisions, and said both defendants should serve another five years....

Department of Justice spokesperson Jake Weigler said Wednesday voters passed the measure to eliminate judges' discretion in a range of crimes. Clearly, Rodriguez and Buck fell within that range, he said. If Measure 11 is to be changed, it should be by the will of the voters or the legislature, he said.... 

Justice Robert D. Durham asked both attorneys if it was the role of the court to make an evaluation of offenders, when the law only mentions "the offense."  Should the court treat each offense as if it were a videotape of the act that turns on when the abuse begins and turns off when it ends? "Does that imply there should be no investigation into the actor?" Durham asked. And did that also imply there should be no consideration of whether a defendant lied on the stand, or lied to the police?

Though this article does not make clear whether the defendants in this case have also presented a federal constitutional challenges as well as the state constitutional challenge.  If they have and if the defendants do not get any relief from the state supreme court, these cases could possibly present interesting and important vehicles for raising an array of constitutional issues in the Supreme Court. 

Some related posts:

• Fascinating proportionality opinion from Oregon court
• More details and insights on Rodriguez case from Oregon

UPDATE:  I found the defendant's brief to the Oregon Supreme Court at this link.  It is hard to tell from a quick scan of the brief whether a formal Eighth Amendment claim is pressed by the brief.  But one aspect of the brief that jumped out was this notable paragraph under the argument summary:

Victim’s Position at Sentencing.  Several statutory and constitutional enactments over the past several decades guarantee the victim a voice at sentencing proceedings.  The victim’s mother accepts defendant as a member of the family and supported defendant throughout the course of the prosecution, through and including the sentencing hearing.

This paragraphs confirms my long-held belief that giving all victims a more formal voice and role at sentencing could and would often prove to be catalyst for more sensible sentencing outcomes and reforms.  In extreme cases, extreme victims will sometimes be eager for extreme sentences.  But I think in most cases, many victims are often eager for moderate sentences.

Friday follies: "Woman Faces Federal Jail Time Over Spilled Soda"

Thanks to this story from FOXNews, we apparently need to thank federal prosecutors for trying to keep our country safe from radical soda-pop terrorists that have started to infiltrate parts of our military establishment:

An Idaho woman is facing federal charges and possible jail time after refusing to pay for a soda and then spilling it on a counter in a case she calls a waste of taxpayer's money.

U.S. Attorney Tom Moss plans to bring two charges against Natalie Walters, 39, stemming from an Aug. 20 incident at the Boise Veterans Affairs Medical Center, the Idaho Statesman reports.  If convicted, she could face up to six months in federal prison.

Walters, who routinely takes her father to the Boise hospital for treatment, said there is no posted price for soda refills at the center's cafeteria, and she's typically charged between $1 and $1.50 for filling her mug, according to the paper. On Aug. 20, she was charged $3.80, which lead to the dispute and Walters dumping the soda on the cafeteria counter.

Moss' office refused to speak to the Statesman about the case until after Walters' Oct. 8 arraignment. Walters didn't learn of the charges until she was contacted by a reporter for the story. "My father is a veteran. It is a federal facility for veterans. This should have been handled differently," she told the paper. "This is extreme. This is totally extreme. Well, if they have that much time on their hands, go for it."

The full story from the Idaho Statesman, which is headlined "Dumped diet pop lands Idaho woman in federal court," can be found at this link.

Doesn't Kennedy suggest life in prison for failing to register is unconstitutional?

This new Atlanta Journal-Constitution article highlights an appeal of an extreme state sentence that is another reflection of the modern sex offender panic.  The piece is entitled "Fairness of law to be judged -- Mandatory sentences: Georgia's Supreme Court will consider proportion."  Here are excerpts:

The judge had only one option when he sentenced Cedric Bradshaw: life in prison.  Bradshaw had not committed murder, rape or armed robbery.  His offense was failing to properly register as a convicted sex offender for a second time — even though he had repeatedly tried to follow the law....

On Monday, the state's highest court will consider whether the law is unconstitutional on grounds it is cruel and unusual punishment.

No other state calls for a life sentence for failing to register as a sex offender the second time, and even rape and armed robbery convictions in Georgia do not carry mandatory life terms, said Bradshaw's lawyer, Robert L. Persse, the circuit public defender in Statesboro. "The punishment for a second violation is grossly disproportionate to the offense," Persse said.  "That is particularly true when this is essentially a paperwork offense not accompanied by aggravating circumstances like violence, sexual deviance or being out in a schoolyard hunting for children."

The Bulloch DA's office is urging the state Supreme Court to uphold the life term. "The courts look at the Legislature's intent in determining the best evidence for the appropriateness of the sentence," Assistant District Attorney W. Scott Brannen said. "When they increase it [to a life term], that too is evidence of the intent and the will of the people."...

Brannen, the prosecutor, said the law is on the books and "it's not my place or the court's place to decide what we like and don't like and what we want to enforce or not enforce."  Bradshaw, Brannen said, broke the law by failing to give a valid address within the 72-hour reporting deadline.  "There are no exceptions in the law," he said.

I am not sure what I find more remarkable: the fact that Georgia punishes this regulatory offense with a mandatory life term, or the fact that in the wake of the Supreme Court's Kennedy ruling the defendant here could have sexually molested and beaten a dozen children without facing a harsher sentence.

As regular readers know, I have long been troubled that the U.S. Supreme Court's eagerness to hyper-regulate the reach of the death penalty through the Eighth Amendment has not extended to regulating extreme prison terms for relatively minor crimes.  The Georgia high court has previously shown the courage and wisdom to do something about a seemingly crazy prison sentence, and this would seem to be another case calling out for some remedy.

Further, as my post heading suggests, I think the recent Kennedy ruling from the Supreme Court provides some significant support for Bradshaw's constitutional challenge.  If life in prison is the harshest permissible sentence for the worst child rape, can the proportionality principle in the Eighth Amendment permit a regulatory offense to be subject to the same punishment?

Ohio getting tough on no-snack-sharing rules

I can sleep a little sounder after reading this local article about how tough my state is on its miscreants:

He slept through a fire drill, had loose tobacco in his possession and didn't show up for kitchen duty.  Then Timothy E. Caudill shared a Little Debbie snack cake with another inmate at a correctional facility in southeastern Ohio.  That was the last straw.

The 21-year-old was kicked out of the residential community corrections program that was a requirement of his probation.  And he could go to prison.  That is absurd, said Caudill's attorney, Claire "Buzz" Ball. "Everybody talks about prison overcrowding.  My God, you have to send some guy to prison for sharing a snack?" Ball said.

Vinton County Prosecutor Timothy P. Gleeson has asked Common Pleas Judge Jeffrey Simmons to revoke Caudill's probation and put him in prison.  Simmons is expected to rule soon on the request, which he considered at a hearing April 16.  The prosecutor wants Caudill put in prison for nine months.

With credit for 105 days served at the SEPTA Correctional Facility, he would serve nearly six more months.  Caudill's attorney has asked the judge to keep Caudill on probation or send him to the jail in Athens County, which costs $20 a day less than a state prison. Keeping Caudill out of prison would leave cell space for a more serious offender, Ball said. "My God, over a 50-cent cake, the state would spend $12,600 for six months," Ball said.

Caudill received a sentence of three years' probation Oct. 1, convicted last year of breaking and entering Krazy Katie's, a bar along Rt. 93 just south of McArthur, the Vinton County seat.  He was placed in SEPTA, a community corrections residential program in Nelsonville, on Oct. 10.  The 64-bed program, which offers drug treatment, work training and counseling, imposes strict rules.

Caudill bought the Little Debbie from the vending machine and then knowingly shared it with a fellow inmate who was on restriction and wasn't allowed access to the vending-machine snacks, said Bob Eaton, operations manager at SEPTA.

I wonder if Ohio parents and teachers realize that, when they encourage children to share at home and at school, they are preparing the kids for a life of crime.