Wednesday, September 10, 2014

"Misdemeanor Decriminalization"

The title of this post is the title of this notable and interesting new paper by Alexandra Natapoff now available via SSRN. Here is the abstract:

As the U.S. rethinks its stance on mass incarceration, misdemeanor decriminalization is an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jail time for minor offenses such as marijuana possession and driving violations, and replacing those crimes with so-called “nonjailable” or “fine-only” offenses. This form of reclassification is widely perceived as a way of saving millions of state dollars — nonjailable offenses do not trigger the right to counsel — while easing the punitive impact on defendants, and it has strong support from progressives and conservatives alike.

But decriminalization has a little-known dark side. Unlike full legalization, decriminalization preserves many of the punitive features and collateral consequences of the criminal misdemeanor experience, even as it strips defendants of counsel and other procedural protections. It actually expands the reach of the criminal apparatus by making it easier — both logistically and normatively — to impose fines and supervision on an ever-widening population, a population who ironically often ends up incarcerated anyway when they cannot afford the fines or comply with the supervisory conditions.

The turn to fine-only offenses and supervision, moreover, has distributive implications. It captures poor, underemployed, drug-dependent, and other disadvantaged defendants for whom fines and supervision are especially burdensome, while permitting well-resourced offenders to exit the process quickly and relatively unscathed. Finally, as courts turn increasingly to fines and fees to fund their own operations, decriminalization threatens to become a kind of regressive tax, turning the poorest populations into funding fodder for the judiciary and other government budgets. In sum, while decriminalization appears to offer relief from the punitive legacy of overcriminalization and mass incarceration, upon closer inspection it turns out to be a highly conflicted regulatory strategy that preserves and even strengthens some of the most problematic aspects of the massive U.S. penal system.

September 10, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Saturday, August 30, 2014

"The criminalisation of American business"

20140830_cna400The title of this post is the headline of this notable new Economist cover story, which carries the subheadline "Companies must be punished when they do wrong, but the legal system has become an extortion racket." Here are excerpts:

Who runs the world’s most lucrative shakedown operation? The Sicilian mafia? The People’s Liberation Army in China? The kleptocracy in the Kremlin? If you are a big business, all these are less grasping than America’s regulatory system. The formula is simple: find a large company that may (or may not) have done something wrong; threaten its managers with commercial ruin, preferably with criminal charges; force them to use their shareholders’ money to pay an enormous fine to drop the charges in a secret settlement (so nobody can check the details). Then repeat with another large company.

The amounts are mind-boggling. So far this year, Bank of America, JPMorgan Chase, Citigroup, Goldman Sachs and other banks have coughed up close to $50 billion for supposedly misleading investors in mortgage-backed bonds. BNP Paribas is paying $9 billion over breaches of American sanctions against Sudan and Iran. Credit Suisse, UBS, Barclays and others have settled for billions more, over various accusations. And that is just the financial institutions. Add BP’s $13 billion in settlements since the Deepwater Horizon oil spill, Toyota’s $1.2 billion settlement over alleged faults in some cars, and many more.

In many cases, the companies deserved some form of punishment: BNP Paribas disgustingly abetted genocide, American banks fleeced customers with toxic investments and BP despoiled the Gulf of Mexico. But justice should not be based on extortion behind closed doors. The increasing criminalisation of corporate behaviour in America is bad for the rule of law and for capitalism (see [companion] article)....

The drawbacks of America’s civil tort system are well known. What is new is the way that regulators and prosecutors are in effect conducting closed-door trials. For all the talk of public-spiritedness, the agencies that pocket the fines have become profit centres: Rhode Island’s bureaucrats have been on a spending spree courtesy of a $500m payout by Google, while New York’s governor and attorney-general have squabbled over a $613m settlement from JPMorgan. And their power far exceeds that of trial lawyers. Not only are regulators in effect judge and jury as well as plaintiff in the cases they bring; they can also use the threat of the criminal law.

Financial firms rarely survive being indicted on criminal charges. Few want to go the way of Drexel Burnham Lambert or E.F. Hutton. For their managers, the threat of personal criminal charges is career-ending ruin. Unsurprisingly, it is easier to empty their shareholders’ wallets. To anyone who asks, “Surely these big firms wouldn’t pay out if they knew they were innocent?”, the answer is: oddly enough, they might.

Perhaps the most destructive part of it all is the secrecy and opacity. The public never finds out the full facts of the case, nor discovers which specific people—with souls and bodies—were to blame. Since the cases never go to court, precedent is not established, so it is unclear what exactly is illegal. That enables future shakedowns, but hurts the rule of law and imposes enormous costs. Nor is it clear how the regulatory booty is being carved up. Andrew Cuomo, the governor of New York, who is up for re-election, reportedly intervened to increase the state coffers’ share of BNP’s settlement by $1 billion, threatening to wield his powers to withdraw the French bank’s licence to operate on Wall Street. Why a state government should get any share at all of a French firm’s fine for defying the federal government’s foreign policy is not clear....

In the longer term, two changes are needed to the legal system. The first is a much clearer division between the civil and criminal law when it comes to companies. Most cases of corporate malfeasance are to do with money and belong in civil courts. If in the course of those cases it emerges that individual managers have broken the criminal law, they can be charged.

The second is a severe pruning of the legal system. When America was founded, there were only three specified federal crimes — treason, counterfeiting and piracy. Now there are too many to count. In the most recent estimate, in the early 1990s, a law professor reckoned there were perhaps 300,000 regulatory statutes carrying criminal penalties—a number that can only have grown since then. For financial firms especially, there are now so many laws, and they are so complex (witness the thousands of pages of new rules resulting from the Dodd-Frank reforms), that enforcing them is becoming discretionary.

This undermines the predictability and clarity that serve as the foundations for the rule of law, and risks the prospect of a selective — and potentially corrupt — system of justice in which everybody is guilty of something and punishment is determined by political deals. America can hardly tut-tut at the way China’s justice system applies the law to companies in such an arbitrary manner when at times it seems almost as bad itself.

August 30, 2014 in Fines, Restitution and Other Economic Sanctions, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (9) | TrackBack

Friday, August 22, 2014

"The Debt Penalty: Exposing the Financial Barriers to Offender Reintegration"

The title of this post is the title of this intriguing new paper authored by Douglas Evans with the Center for Research and Evaluation at the John Jay College of Criminal Justice.  Here is the paper's summary:

Financial debt associated with legal system involvement is a pressing issue that affects the criminal justice system, offenders, and taxpayers.  Mere contact with the criminal justice system often results in fees and fines that increase with progression through the system.  Criminal justice fines and fees punish offenders and are designed to generate revenue for legal systems that are operating on limited budgets.  However, fines and fees often fail to accomplish this second goal because many offenders are too poor to pay them.

To compound their financial struggles, offenders may be subject to other financial obligations, such as child support payments and restitution requirements.  If they do not pay their financial obligations, they may be subject to late fees and interest requirements, all of which accumulate into massive debt over time.  Even if they want to pay, offenders have limited prospects for meaningful employment and face wage disparities resulting from their criminal history, which makes it even more difficult to pay off their debt.

An inability to pay off financial debt increases the possibility that offenders will commit new offenses and return to the criminal justice system.  Some courts re-incarcerate offenders simply because they are unable to settle their financial obligations.  Imposing financial obligations and monetary penalties on offenders — a group that is overwhelmingly indigent — is not tenable.  States often expend more resources attempting to recoup outstanding debt from offenders than they are able to collect from those who pay.  This report explores the causes and effects of perpetual criminal debt and offers solutions for encouraging ex-offender payment.

August 22, 2014 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (3) | TrackBack

Third Circuit finds "reprehensible" conduct regarding victim restitution not grounds for revoking supervised release

A Third Circuit panel yesterday handed down an interesting ruling in US v. Bagdy, No. 13-2975 (3d Cir. Aug. 21, 2014) (available here), reversing the revocation of supervised released despite calling the defendant's conduct "reprehensible." Here is how the Bagdy opinion starts:

At issue on this appeal is whether supervised release may be revoked and an offender sent to prison based upon a District Court’s finding that the offender acted in bad faith in relation to his obligation to make restitution to the victims of his criminal conduct.  In this case, although Appellant David Bagdy complied with the letter of the District Court’s restitution order by ultimately paying more than one-third of a $435,000 inheritance he had received while on supervised release, he engaged in a lavish spending spree that dissipated the balance of the inheritance while delaying the proceedings intended to modify the restitution order.  Like the District Court, we find Bagdy’s conduct reprehensible.  We conclude, however, that the District Court could not revoke supervised release for such bad faith conduct because Bagdy did not violate a specific condition of supervised release in relation to the restitution obligation.  Accordingly, we will vacate the judgment and remand for further proceedings.

August 22, 2014 in Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (0) | TrackBack

Wednesday, August 20, 2014

Pennsylvania Supreme Court declares $75K mandatory fine constitutionally excessive for $200 theft

Images (2)Thanks to How Appealing, I just saw this fascinating new unanimous ruling by the Supreme Court of Pennsylvania in Pennsylvania v. Eisenberg, No. (Pa. Aug. 19, 2014) (available here). Here is how the lengthy opinion gets started:

The controlling issue in this unusual direct appeal from a conviction arising under the Gaming Act is whether imposition of a mandatory minimum fine of $75,000 for a conviction of a first-degree misdemeanor theft of $200 violates the prohibition of Article I, Section 13 of the Pennsylvania Constitution against excessive fines.  For the reasons set forth below, we conclude that, under the circumstances, the fine imposed indeed is unconstitutionally excessive. Accordingly, we vacate that portion of the judgment of sentence involving the mandatory fine and we remand to the trial court to determine, in its discretion, the appropriate fine to be imposed commensurate with appellant’s offense.

The full ruling is worth a full read by anyone interested in constitutional review of sentences, especially because the ruling turns in part on the fact that the punishment here involved a statutory mandatory term.  Here is an excerpt from the heart of the opinion's analysis:

In our view, the fine here, when measured against the conduct triggering the punishment, and the lack of discretion afforded the trial court, is constitutionally excessive. Simply put, appellant, who had no prior record, stole $200 from his employer, which happened to be a casino.  There was no violence involved; there was apparently no grand scheme involved to defraud either the casino or its patrons.  Employee thefts are unfortunately common; as noted, appellant’s conduct, if charged under the Crimes Code, exposed him to a maximum possible fine of $10,000. Instead, because appellant’s theft occurred at a casino, the trial court had no discretion, under the Gaming Act, but to impose a minimum fine of $75,000 – an amount that was 375 times the amount of the theft....

The Commonwealth argues that the mandatory fine is not constitutionally excessive because a fine serves both to punish and to deter, and in the Legislature’s judgment, the amount here was necessary to accomplish both in light of the public perception of the gaming industry and the significant amount of money exchanged in casinos.  We acknowledge that all fines serve the twin purposes of punishment and deterrence.  At the same time, however, we note that the extension of the mandatory fine to this offense was adopted in 2010, and it was accompanied by no separate legislative statement of purpose. The only statement of purpose is that attending the initial Gaming Act legislation, i.e., the general statement of purpose to protect the public through regulation of the gaming industry.  The Commonwealth cites nothing in the later legislation, its legislative history, or logic to explain the sheer amount of this fine for this particular added offense, and the reason for making the offense subject to a mandatory fine....

[T]he Commonwealth’s reliance on cases in which courts have upheld substantial criminal administrative penalties in light of the Legislature’s dual objectives of punishment and deterrence, is misplaced. In those cases, the fines were tailored, scaled, and in the strictest sense, calculated to their offenses.  It is undoubtedly within the Legislature’s discretion to categorize theft from a casino differently than other theft crimes in Pennsylvania, and, in turn, to fashion different penalties.  However, the prohibition against excessive fines under Article I, Section 13 requires that the Legislature not lose sight of the fact that fines must be reasonably proportionate to the crimes which occasion them.  We hold that, as imposed here, the mandatory fine clearly, palpably and plainly violates the Pennsylvania Constitution.

August 20, 2014 in Fines, Restitution and Other Economic Sanctions, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (9) | TrackBack

Thursday, July 24, 2014

"Paying for Gideon"

The title of this post is the headline of this notable new essay by Beth Colgan now available via SSRN. Here is the abstract:

To protect the “noble ideal” that “every defendant stands equal before the law,” Gideon v. Wainwright guaranteed the right to defense counsel for those who cannot afford it. Gideon’s concept is elegantly simple: if you are too poor to pay for counsel, the government will provide.  The much more complicated reality, however, is that since Gideon, courts have assigned counsel to millions of American defendants too poor to pay for an attorney, have required those defendants to pay for their counsels’ services, and have punished those unable to do so.

This essay examines how we moved from Gideon’s guarantee to this reality.  I assert that Gideon’s protection against recoupment for those with no ability to pay has remained hidden in plain sight due to misinterpretations in two lines of cases.  The first line involves a series of cases in which the Court held that the Due Process and Equal Protection Clauses of the Fourteenth Amendment required the waiver of financial barriers to accessing the courts.  The second line involves the misapplication of the Fifth Amendment’s collateral consequences doctrine to the Sixth Amendment’s effective assistance of counsel jurisprudence, leading to a misunderstanding that to be constitutionally effective, counsel need not advise a client about collateral consequences.

I posit that the intersection of these two lines of cases has obscured the unconstitutional nature of today’s recoupment schemes, pushing Gideon out of the picture.  The more or less successful attempts by advocates, academics, and the courts to squeeze recoupment into a due process/equal protection/effective assistance of counsel frame misses the fact that today’s version of recoupment is itself a Gideon problem.

July 24, 2014 in Fines, Restitution and Other Economic Sanctions, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, June 27, 2014

A 22-year-old driving his parents' RV from Colorado to Wisconsin with $50K, pot and a pit-bull gets pulled over in Nebraska...

The title of this post might make for the start of a great joke about modern America circa 2014.  But, in fact, it is the factual basics of a fascinating little ruling today by the Eighth Circuit in US v. Nelson, No. 13-1902 (8th Cir. 2014) (available here).

In an effort not to "give away the joke," I am not going to say anything more about this case others that to suggest that those concerned about excessive police powers will be pleasantly surprised by the ending to this story provided by the Eighth Circuit panel's opinion.

June 27, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (19) | TrackBack

Thursday, June 26, 2014

"What Is Criminal Restitution?"

The title of this post is the title of this notable new article by Cortney Lollar now available via SSRN. Here is the abstract:

A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore no longer serves its traditional purpose of disgorging a defendant’s ill-gotten gains. Instead, restitution has become a mechanism of additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections normally attaching to criminal proceedings.

This Article deploys a novel definition of punishment to situate restitution alongside other forms of punishment. Like all forms of punishment, restitution is imposed subsequent to a criminal allegation, pursuant to a statute motivated by morally condemnatory intent, and resulting in a substantial deprivation or obligation. Because restitution has become a form of punishment, this Article argues that judges should recognize criminal restitution for what it is — victim compensation imposed at the state’s request as condemnation for a moral wrong — and extend to defendants in restitution proceedings all the constitutional protections they enjoyed in earlier criminal proceedings. This means submitting restitution to a jury for determination pursuant to the Sixth Amendment, and subjecting it to the excessive-fines analysis of the Eighth Amendment.

June 26, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Thursday, May 29, 2014

"Funding Favored Sons and Daughters: Nonprosecution Agreements and 'Extraordinary Restitution' in Environmental Criminal Cases"

The title of this post is the title of this recent article authored by Paul Larkin that a helpful reader altered me. Here is the abstract:

Over the past eight years, the federal government has entered into more than two hundred nonprosecution agreements with corporations in white-collar crime cases.  In such agreements the government promises to cease its investigation and forego any potential charges so long as the corporation agrees to certain terms.  And there’s the rub: given the economic realities of just being charged with a white-collar crime these days, corporations are more than willing to accept nonprosecution agreements.

Prosecutors are cognizant of this willingness, as well as of the fact that these agreements are practically insulated from judicial review.  This results in the prosecution possessing a seemingly unfettered discretion in choosing the terms of a nonprosecution agreement.  The breadth of this discretion is nowhere more apparent than in environmental criminal cases. Nonprosecution agreements in such cases have begun to require corporations to donate monetarily to a nonprofit of the government’s choosing.  Indeed, in 2012 British Petroleum agreed to pay more than $2.394 billion to nonprofit agencies.

This Article critiques this practice by highlighting the inconsistencies between nonprosecution agreements and plea bargaining — the latter are subject to judicial review while the former are not — and unearthing the differences between these payments and any common-law understanding of restitutionary principles.  The Article then suggests that the practical result of these nonprosecution agreements is that prosecutors are diverting money that ought to be paid to the Treasury to government-chosen nonprofit agencies, a power constitutionally granted to legislative actors.  Finally, the Article concludes by suggesting a modest reform: judicial review by a United States magistrate judge, so as not to run into any Article III concerns, to ensure that prosecutors do not take advantage of the nonprosecution agreement process.

May 29, 2014 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, May 26, 2014

California DA tries to make sure marijuana crime does not pay by making the criminals pay for reduced charges

La-me-g-mendocino-potwebThe Los Angeles Times has this fascinting new article on a fascinting drug war innovation being utilized by a local districy attorney in California.  The article is headlined "Mendocino County D.A. takes a new approach to marijuana cases," and here are excerpts: 

When David Eyster took over as Mendocino County district attorney, felony marijuana prosecutions were overwhelming his staff and straining the public coffers.

With hundreds of cases active at any one time, taking an average 15 months to resolve, there were few victories to show for all the effort. "The system hadn't broken yet," Eyster said, "but it was dangerously close."

That was a little over three years ago. These days marijuana cases clear in about three months and the Sheriff's Department is flush with cash, thanks to what some are calling "the Mendocino model." To others, it's the Mendocino shakedown.

The transformation began when Eyster dusted off a section of the California health and safety code, intended to reimburse police for the cost of cleaning up meth labs and pot grows, and retooled it for a modern Mendocino County. In exchange for paying restitution, which Eyster sets at $50 per plant and $500 per pound of processed pot seized, eligible suspects can plead to a misdemeanor and get probation. (The law says restitution is reimbursement for actual enforcement costs, but defendants waive an itemized accounting and state the amount owed is "reasonable.")

The relinquishing of allegedly ill-gotten gains seized in separate civil forfeiture actions — cash, trucks and the occasional tractor — also might be part of the deal offered under Eyster's "global resolutions."

The restitution program is available only to those without troublesome criminal backgrounds who have not wildly overstepped California's somewhat gray laws on medical marijuana. Those who trespass, grow on public lands or degrade the environment need not apply.

Eyster said it's a complex calculation that he jots out himself, by hand, on the back of each case file. The size of a grow is not necessarily the deciding factor: In one current case, the defendants have records indicating they are supplying 1,500 medical users, Eyster said. Another case involved just four pounds of processed marijuana, but evidence indicated the defendant was selling for profit. Participants must agree to random searches while on probation, comply with medical marijuana laws and grow only for personal use.

Restitution funds, which have topped $3.7 million since early 2011, go directly to the investigating agencies. Asset forfeitures — the $4.4 million in cash and goods seized in 2013 was nearly double the previous year — are shared by the state, the district attorney's office and local law enforcement.

Among those who have criticized the program is Mendocino County Superior Court Judge Clay Brennan, who during a restitution hearing last year for a man with an 800-plant grow blasted it as "extortion of defendants."

A federal grand jury investigating county programs that derive revenue from marijuana enforcement has subpoenaed accounting records on the restitution program, Eyster confirmed. The reason is unclear, as the U.S. attorney's office declined to comment on the probe.

Legal analysts also have raised concerns about the potential for unequal treatment of defendants and the incentive for officers to focus on lucrative targets at the expense of those more menacing to public safety....

Eyster teamed with Assemblyman Tom Ammiano (D-San Francisco) in 2011 to try to make pot cultivation a "wobbler," prosecuted as either a felony or misdemeanor. The effort failed, but he had devised another way to thin the caseload.

He drew on past experience with welfare fraud, where considering restitution before making a filing decision was routine. Convinced that not all defendants were created equal — the mastermind behind a for-profit grow is more culpable than hired trimmers — he decided to evaluate each case, consider potentially exculpatory evidence and cut deals as he saw fit.

He offers defendants guidance on how to stay within the law, and said paying restitution "shows a step toward rehabilitation." "A month doesn't go by when someone doesn't say: 'Thank you for handling it this way,'" Eyster said.

Since he took office, 357 defendants have decided to pay restitution. About 20 of those violated their probation, resulting in 180-day jail stints and new charges. (On a second round, a straight misdemeanor charge is off the table.)

Eyster never accepts seized cash as payment of restitution, but his approach does throw such assets into the bargaining mix. It is unclear how many probationers paid restitution and forfeited seized cash or goods, but Eyster conceded the practice is common. "One hundred percent of the time, the defense wants to do a global resolution," he said. "It's saving a lot of time and costs."...

Defense attorney Keith Faulder, who practices in Mendocino County, is circumspect when discussing Eyster's program.  The district attorney, Faulder said, is "an innovator" who he believes is "operating in good faith when it comes to settling marijuana cases." However, Faulder said, Eyster "has a real policy of settling cases for civil forfeiture ... I think it gets a lot of dolphin with the tuna." That program has exploded in recent years, with law enforcement officials attributing the increased seizures to a pot trade that permeates the county....

Mendocino County Sheriff Tom Allman said his deputies do not have the time or inclination to police for profit: "If I wanted to use this as a business plan, I'd have 12 people on my eradication team," he said.  He has two.  But he credits restitution and forfeitures for a sheriff's budget that is $600,000 in the black, and said he has also been able to expand a resident deputy program and purchase a new fleet of cars.

Despite the criticism, Eyster said he was confident in the legality and effectiveness of his approach. He said that he had offered Melinda Haag, U.S. attorney for the Northern District, "first dibs on the prosecution of all marijuana cases in Mendocino County" but that she declined.  So "they should please leave us alone and let local enforcement tackle our own marijuana problems."

Regular readers should not be at all surprised that I am inclined to praise Mendocino County DA for engineering a seemingly more efficient and perhaps more effective way to wage the modern drug war. Indeed, given the muddled mess that is both California's medical marijuana laws and the opaque federal enforcement of prohibition in that state, this "Mendocino model" for modern marijuana enforcement for lower-level marijuana cases strikes me as a very wise way to use prosecutorial discretion and triage prosecutorial resources.

I would like to believe that the federal grand jury investigating the "Mendocino model" is focused on seeing if a local success story can be turned into a national program. But I fear that the feds are looking into what DA Eyster is doing because they fear even the prospect of somebody inventing any better drug war mousetraps.

Finally, though I suppose I should be concerned about the potential for prosecutors extorting criminal defendants in this setting, this form of extortion troubles me much less that when prosecutors demand that defendants give up various rights to avoid a crazy-long mandatory prison sentences in traditional plea bargaining. When DA Eyster seeks money from marijuana defendants as part of the plea process, it seems he is only seeking to have them relinquish what were likely ill-gotten gains (much of which might end up going to defense attorneys' pockets without such a deal available); when other prosecutors seek pleas and cooperation from other defendants facing extreme prison terms, these prosecutors are demanding that defendants relinquish constitutional and statutory rights created specifically to limit and check the power of government officials.

Cross-posted at Marijuana Law, Policy and Reform

May 26, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, May 21, 2014

Should I be hopeful Amy can now recover more restitution after major child porn bust in NYC?

The question in the title of this post is my (perhaps weak) effort to put some kind of positive spin on this depressing new story from CNN headlined "Cop, rabbi, scoutmaster among arrests in child porn bust."  Here are just some of the ugly basics:

They are people children are supposed to trust: A New York Police Department officer, a Fire Department of New York paramedic, a rabbi and a scoutmaster were among more than 70 people arrested in a major child porn bust, authorities said Wednesday.

One of those arrested -- a supervisor with the Transportation Security Administration -- allegedly traveled to the Dominican Republic to have sex with children, a law enforcement official said. He allegedly made more than 50 trips there.

The investigation, involving agents from U.S. Immigration and Customs Enforcement as well as New York authorities, began as part of an undercover operation into peer-to-peer networks, authorities told reporters Wednesday.  The suspects, who do not appear to know one another, were able to search files using graphic terms and descriptions. Software continuously scanned files and automatically uploaded images to personal computers, laptops and mobile phones.

Special Agent in Charge James Hayes, head of Homeland Security Investigations New York, called the arrests the largest enforcement operation in New York "targeting predators (who) possess, produce or distribute sexually explicit images of children." The activity, he said, has "reached epidemic proportions."

"The backgrounds of many of the individuals ... is shocking," Hayes said. "These defendants come from all walks of life ... This operation puts the lie to the classic stereotypical profile that child predators are nothing more than unemployed drifters. Many of the defendants are, in fact, well-educated and successful in private and professional lives. They work as registered nurses, paramedics, caretakers for mentally ill adults, computer programers and architects."

The continuing operation resulted in 71 arrests -- including one woman -- and the seizure of nearly 600 devices, including desktop and laptop computers, tablets, smartphones and thumb drives with tens of thousands of sexually explicit images and videos of children, Hayes said.

The pornographic images of children were shared at no charge, authorities said. About a third of the suspects remain in custody, and the others were released on bonds ranging from $30,000 to $500,000. Hayes said the January arrest of Brian Fanelli, chief of the Mount Pleasant Police Department in upstate Valhalla, New York, on child pornography violations helped lead to the other defendants.

A few months ago, I asked in the title of this post a serious question that comes to mind now again: "Just how many prominent, successful men are child porn fiends?".  As the title of this post suggests, following the Supreme Court's messy "split-the-difference" approach to child porn restitution in its recent Paroline ruling (basis here), I am hoping a silver lining to this dark cloud might be that CP crimes committed too often by persons "well-educated and successful in private and professional lives" might now mean more restitution getting paid to the unfortunate victims of these crimes.

A few (of many) prior posts on Paroline and child porn issues:

May 21, 2014 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (11) | TrackBack

"Guilty and Charged": NPR investigation of charges and fees imposed on criminal defendants

As detailed in this series of new pieces, National Public Radio has conducted an in-depth investigation of how states charging criminal defendants and convicted offenders a range of fees. The start of this lead piece for the special series, headlined "As Court Fees Rise, The Poor Are Paying The Price," provides this description of the NPR efforts and findings:

In Augusta, Ga., a judge sentenced Tom Barrett to 12 months after he stole a can of beer worth less than $2.  In Ionia, Mich., 19-year-old Kyle Dewitt caught a fish out of season; then a judge sentenced him to three days in jail.

In Grand Rapids, Mich., Stephen Papa, a homeless Iraq War veteran, spent 22 days in jail, not for what he calls his "embarrassing behavior" after he got drunk with friends and climbed into an abandoned building, but because he had only $25 the day he went to court.

The common thread in these cases, and scores more like them, is the jail time wasn't punishment for the crime, but for the failure to pay the increasing fines and fees associated with the criminal justice system.

A yearlong NPR investigation found that the costs of the criminal justice system in the United States are paid increasingly by the defendants and offenders.  It's a practice that causes the poor to face harsher treatment than others who commit identical crimes and can afford to pay. Some judges and politicians fear the trend has gone too far.

A state-by-state survey conducted by NPR found that defendants are charged for many government services that were once free, including those that are constitutionally required.  For example:

  • In at least 43 states and the District of Columbia, defendants can be billed for a public defender.
  • In at least 41 states, inmates can be charged room and board for jail and prison stays.
  • In at least 44 states, offenders can get billed for their own probation and parole supervision.
  • And in all states except Hawaii, and the District of Columbia, there's a fee for the electronic monitoring devices defendants and offenders are ordered to wear.

These fees — which can add up to hundreds or even thousands of dollars — get charged at every step of the system, from the courtroom, to jail, to probation.  Defendants and offenders pay for their own arrest warrants, their court-ordered drug and alcohol-abuse treatment and to have their DNA samples collected.  They are billed when courts need to modernize their computers.  In Washington state, for example, they even get charged a fee for a jury trial — with a 12-person jury costing $250, twice the fee for a six-person jury.

There are already six stories assembled on this topic available here under the special series heading "Guilty and Charged." Particularly valuable for researchers may be this chart reporting the results of NPR's state-by-state survey of common fees charged to defendants.

May 21, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (17) | TrackBack

Thursday, May 08, 2014

Bipartisan statutory fix after SCOTUS Paroline mess for child porn restitution introduced in Congress

This new Washington Times article, headlined "Bill would address Supreme Court ruling on porn victims; Effort seeks 'full restitution' from porn viewers," details that a legislative fix to the Supreme Court's ruling last month in Paroline is in the works. Here are the details:

Reacting to a recent Supreme Court decision, a bipartisan group of senators introduced a bill that, in certain cases, would force people convicted of possessing child pornography to pay at least $25,000 in restitution to the victim.

The measure would rewrite a section of the Violence Against Women Act and make it easier for victims of child pornography to be granted “full restitution” from felons who have made, distributed or viewed images of their sexual abuse online.

The push follows an April 23 Supreme Court ruling in Paroline v. United States that, in essence, told federal courts to figure out how to assign a nontrivial amount of restitution to child-pornography victims. Currently, with little guidance from the law, courts have set awards ranging from zero to millions of dollars in restitution for victims of child pornography from those who collect and pass along their images.

Child pornography “is one of the most vicious crimes, one of the most evil crimes, in our society,” Sen. Orrin Hatch, Utah Republican, said on the Senate floor Wednesday to introduce the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014. “Victims of child pornography suffer a unique kind of harm and deserve a unique restitution process,” said Mr. Hatch, who sponsored the legislation with Sen. Charles E. Schumer, New York Democrat, and six other colleagues.

Under the bill, the law and its penalties are clarified, including minimum payments of $250,000 for production of child pornography, $150,000 for distribution of child pornography and $25,000 for possession of child pornography.

“The tragic effect of the Supreme Court’s decision in Paroline was this: The more widely viewed the pornographic image of a victim, and the more offenders there are, the more difficult it is for the victim to recover for her anguish and her damages,” said Mr. Schumer. There “should not be safety in numbers,” he added.

The restitution bill would require a court to consider the “total harm” to the victim, including harm from individuals who have not been identified; mandates “real and timely” restitution; and allows defendants to “spread the restitution costs” among themselves, Mr. Hatch and Mr. Schumer said.

May 8, 2014 in Fines, Restitution and Other Economic Sanctions, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, May 05, 2014

SCOTUS unanimously rejects defendant's effort to reduce restitution owing under MVRA

The Supreme Court handed down a unanimous ruling in a restitution case this morning. Here is how the opinion for the Court in Robers v. US, No. 12-9012 (S. Ct. May 4) (available here), gets started:

The Mandatory Victims Restitution Act of 1996 requires certain offenders to restore property lost by their victims as a result of the crime. 18 U. S. C. §3663A. A provision in the statue says that, when return of the property lost by the victim is “impossible, impracticable, or inadequate,” the offender must pay the victim “an amount equal to . . . the value of the property” less “the value (as of the date the property is returned) of any part of the property that is returned.”  § 3663A(b)(1)(B).  The question before us is whether “any part of the property” is “returned” when a victim takes title to collateral securing a loan that an offender fraudulently obtained from the victim.

We hold that it is not. In our view, the statutory phrase “any part of the property” refers only to the specific property lost by a victim, which, in the case of a fraudulently obtained loan, is the money lent.  Therefore, no “part of the property” is “returned” to the victim until the collateral is sold and the victim receives money from the sale. The import of our holding is that a sentencing court must reduce the restitution amount by the amount of money the victim received in selling the collateral, not the value of the collateral when the victim received it.

May 5, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Saturday, April 26, 2014

Will Congress fix (quickly? ever? wisely?) the "puzzle of paying Amy" after Paroline?

The questions in the title of this post is a by-product my reaction to the Supreme Court's work this week in Paroline (basics here) and draws from the title of this Slate essay by Eric Posner headlined "The Puzzle of Paying Amy: Congress has to fix the problem with restitution for child pornography victims that stumped the Supreme Court."   The analysis of the Paroline issues in this article is effective (though I disagree with some of it), and I recommend a full read.  Here are brief excerpts to set up the question in the title of this post, with a key issue and concern emphasized at the end:

The Violence Against Women Act provides for restitution for child pornography victims, so Amy sought payment from the people convicted of possessing her images.  She proved that she had lost almost $3.4 million in therapy expenses and future income as a result of the abuse and the viewing of the images, but because of the collective nature of the wrongdoing that caused her harm, she could not prove how much of the loss could be attributed to any specific defendant.  Doyle Randall Paroline was convicted of possessing two images of Amy.  This week’s puzzle for the Supreme Court: How much should he have to pay her?

Zero, three of the conservative justices argued in dissent Wednesday.  All $3.4 million, argued Justice Sonia Sotomayor, also in dissent.  Something, held the majority, in an opinion written by Justice Anthony Kennedy.  The conservatives got the law right, Sotomayor got the morality right, and Kennedy — characteristically trying to have it both ways — created a muddle....

The problems with Kennedy’s and Sotomayor’s approaches stem from the same source: When Congress drafted the provision about restitution in the Violence Against Women Act, it thought about traditional types of harms — when one person directly injures another — and not the unusual collective injury in this case.  That’s why the justices’ efforts to twist the statutory language lead to unfair and bizarre outcomes.

Congress created this mess, and only Congress can fix it.  Every person who is convicted of child pornography should pay a large fine into a government trust.  The fine would be tailored to the wealth of the defendant and the magnitude of his wrongdoing.  Then this fund would be used to compensate all the identified victims of child pornography, who would share it in proportion to the severity of their injuries.  That way, not Kennedy’s or Sotomayor’s, lies fairness.

Two quick responses right away, with a lot more to write on this topic in the days and weeks and months ahead:

1. Ironically, the basic substantive proposal for a statutory Paroline fix emphasized above is, in many significant respects, really something of a variation of the new judicial restitution doctrine functionally embraced/created by the Paroline court through Justice Kennedy's majority opinion, though it changes the key sentencing term a fine rather than restitution and would presumably require every CP defendant to pay rather than just the (vast majority of) defendants who have a picture of an identified victim.

Consequentially, I believe DOJ can (and should) on its own operationalize the post-Paroline restitution sentencing process somewhat along the lines Posner suggests: DOJ could (and should) announce formal guidelines concerning the amount of restitution it will request in each CP downloading case involving Amy (or Vicky or other victims) based on the the wealth of the defendant and the magnitude of his wrongdoing (with some reference to factors mentioned by the Paroline majority).  With such a restitution schedule created, Amy and other victims can reasonably expect DOJ will be mostly responsible for making sure she and other identified victims collects restitution reasonably efficiently and effectively without actually requiring these victims and their lawyers to be actively involved in every CP case.

2. Though there are lots of good reasons to contend that Congress should try to fix Paroline in some way via statutory reform, the fact that some (many? most?) proposals for such reform may look similar to the new judicial restitution doctrine functionally embraced/created by the Paroline court, I am not at all confident that Congress will get around to enacting a wise statutory fix anytime soon.  If the statutory interpretation proposed by CJ Roberts in dissent, which concluded Amy and other victims get nothing based on the existing statute, then I suspect even our divided/dysfunctional Congress would have gotten a lot of pressure from both victims and DOJ to enact a statutory fix.  But with the split-the-difference outcome (which was urged by DOJ) now the new post-Paroline status quo, I am not at all confident there will be the same momentum to push Congress to act.

Notably, one of Amy's lawyer, Professor Paul Cassell, has been talking up a legislative fix in posts here and here at The Volokh Conspiracy since Paroline was handed down.  In the first of these posts he states that he and "crime victims’ advocates around the country ... intend to take up with Congress the cause of Amy and the many other child pornography victims who suffer real, quantifiable losses from these serious crimes." Because Paul and other "crime victims’ groups can be very effective advocates, I certainly believe it may be possible that Congress will respond in some way after Paroline. But if (when?) the Justice Department is disinclined to join the call for statutory reform, I would predict that the post-Paroline status quo is could stay in place for some time.

A few (of many) prior posts on Paroline and child porn restitution issues:

April 26, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (30) | TrackBack

Wednesday, April 23, 2014

SCOTUS splits the difference for child porn restitution awards in Paroline

The Supreme Court handed down two criminal law opinions this morning, and the big one for sentencing fans is Paroline v. US, No. 12-8561 (Apr. 23, 2014) (available here). Intriguingly, Justice Kennedy authored opinion of the Court with Justices Ginsburg, Breyer, Alito and Kagan joining.. Chief Justice Roberts, Jr. issued a dissenting opinion joined by Justices Scalia and Thomas, while Justice Sotomayor issued a distinct a dissenting opinion. Here is the heart of the majority's ruling:

In this special context, where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but but where it is impossible to trace a particular amount of losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §2259 should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses. The amount would not be severe in a case like this, given the nature of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim’s general losses from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount. The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role. This would serve the twin goals of helping the victim achieve eventual restitution for all her child-pornography losses and impressing upon offenders the fact that child-pornography crimes, even simple possession, affect real victims.

There remains the question of how district courts should go about determining the proper amount of restitution. At a general level of abstraction, a court must assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses.

Good luck with that, district courts! Snide comments aside, this ruling confirms my sense that these are really hard issues and that a majority of the Justice were uncomfortable with either a complete victory (which Justice Sotomayor urges) or a complete loss (which CJ Roberts urges) for child porn victims. Lots more on this ruling after I have a chance to process it fully.

April 23, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Sunday, April 06, 2014

"Reviving the Excessive Fines Clause"

The title of this post is the title of this notable new paper by Beth Colgan now available via SSRN. Here is the abstract:

Millions of American adults and children struggle with debt stemming from economic sanctions issued by the criminal and juvenile courts.  For those unable to pay, the consequences — including incarceration, exclusion from public benefits, and persistent poverty — can be draconian and perpetual.  The Supreme Court has nevertheless concluded that many of these concerns lie outside the scope of the Eighth Amendment’s Excessive Fines Clause. In interpreting the Clause, the Court relied upon a limited set of historical sources to restrict “fines” to sanctions that are punitive in nature and paid exclusively to the government, and to define “excessive” as referring to — either exclusively or primarily — the proportionality between the crime’s gravity and the amount of the fine.

This Article takes the Court at its word by assuming history is constitutionally relevant, but it challenges the Court’s limited use of history by providing the first detailed analysis of colonial and early American statutory and court records regarding fines.  This robust historical analysis belies the Court’s use of history to announce historical “truths” to limit the scope of the Clause, by showing significant evidence that contradicts those limitations.

The Article uses the historical record to identify questions regarding the Clause’s meaning, to assess the quality of the historical evidence suggesting an answer to such questions, and then to consider that evidence — according to its value — within a debate that incorporates contemporary understandings of just punishment.  Under the resulting interpretation, the historical evidence articulated in this Article would support an understanding of a “fine" as a deprivation of anything of economic value in response to a public offense.  “Excessive,” in turn, would be assessed through a broad understanding of proportionality that takes account of both offense and offender characteristics, as well as the effect of the fine on the individual.  The proposed interpretation more faithfully reflects the history and its limitations, and broadens the Clause’s scope to provide greater individual protections.

April 6, 2014 in Fines, Restitution and Other Economic Sanctions | Permalink | Comments (4) | TrackBack

Monday, March 17, 2014

You be the federal sentencing judge: months, years or decades in prison for notable Medicaid fraudsters?

White-collar crimes, especially when there are few if any individual victims, oft raise especially tough and dynamic issues concerning how to weigh and balance offense- and offender-related sentencing consideration. These realities seem especially true in an interesting federal health care fraud case from South Carolina described in this local article. The piece is headlined "As Medicaid fraud sentencing nears, SC youth agency founder seeks leniency so he can be positive role model for his children," and here are excerpts:

The founder of the Helping Hands Youth and Family Services agency, guilty of bilking the federal Medicaid program for millions of dollars, has asked a federal judge for leniency when he is sentenced Wednesday for six felony charges related to health care fraud.

Truman Lewis — who founded the for-profit youth mentoring agency that had offices in Conway, Georgetown, Columbia and Rock Hill — said in court documents that he still maintains his innocence and deserves no more than a six-month prison sentence.

Lewis and his brother, Norman Lewis, were found guilty in an August jury trial of conspiracy to commit health care fraud, conspiracy to commit money laundering and four counts of wire fraud.  They each face up to 10 years in prison for committing health care fraud and up to 20 years in prison for the money laundering and wire fraud charges. Both men will be sentenced Wednesday in Charleston by Judge Richard Gergel.

The jury found that the Lewises billed Medicaid for $8.9 million — much of it fraudulent  — over a nearly two-year period starting in 2009, and then used the money to buy luxury cars, a beachfront condominium and homes.  At the time of their indictment in June 2012, the Lewises had $1 million in certificates of deposit and bank accounts.  The jury determined that all of those assets can be seized to help pay back the money taken through fraudulent billings.

Helping Hands — which was supposed to provide mentoring services to low-income children with family or behavioral problems — had hundreds of youth clients in Horry and Georgetown counties.  Those clients were referred to the agency by the state’s Department of Social Services and area school officials, even though the agency’s counselors were not licensed.

Truman Lewis, in a court document filed on Friday, said he “may have made mistakes along the way but does not believe he did so with a malevolent intent and is wanting to work his way out of this position he finds himself in.”

At age 35, Truman Lewis is the oldest of 14 siblings who were “sometimes forced to live on food stamps,” the court document states, adding that the youth mentoring agency he founded allowed him “to pave the way for his siblings in school and work to show them there was a way out of poverty.”  Truman Lewis said he never should have faced criminal charges because his agency had entered into a repayment plan with state officials who oversee the Medicaid program before any charges were filed.  He said a long prison sentence would be detrimental to the government because he would not be able to work and pay restitution.

If the court allows Truman Lewis “to serve a sentence below the guidelines range, he may be able to seek employment to help work on restitution to the government,” the court document states.  Truman Lewis said he also wants a minimum prison sentence so he and his wife can continue to be positive influences on their four children.  “The entire family is extremely religious and attend church regularly, sometimes four to five times weekly as a family,” the court document states, adding that Truman Lewis and his wife “have a deep abiding belief in their religious convictions and are trying to pass their beliefs on to the children.”

David McCann, a court-appointed lawyer representing Norman Lewis, filed a document Monday asking for leniency for his client, but the filing does not recommend a specific prison sentence.  A lengthy sentence for the 32-year-old Norman Lewis “interrupts his young family and presents the unnecessary cost to taxpayers for confinement and treatment, if available,” McCann said in the court filing.

Norman Lewis’ previous court appearances have been marred by outbursts and repeated requests to represent himself at trial.  Norman Lewis initially told Gergel he wanted to be represented by God and Jesus rather than a court-appointed defender.  He also spoke during an arraignment hearing about more than 100 songs and poems he has written about his work with Helping Hands, “doing so in a manner that left the court concerned with the defendant’s mental capacity.”

A psychiatric exam in December 2012 showed Norman Lewis was competent to stand trial, prompting Gergel to approve his request to represent himself. Gergel rescinded that request in February 2013 after Norman Lewis repeatedly refused to accept boxes of discovery documents needed for trial preparation.  Norman Lewis’ refusal to meet with a probation officer led to his incarceration three months later and he was charged with contempt of court in July for speaking to potential jurors.

Norman Lewis’ wife, Melanie Lewis, pleaded guilty last year to one conspiracy charge in a plea agreement to avoid a trial.  That charge carries a maximum five-year prison sentence. Melanie Lewis will be sentenced on Thursday in Charleston.

Testimony during the August trial showed Helping Hands officials — most of them Lewis family members — falsified records and submitted bills for ineligible or non-existent clients in order to boost Medicaid payments.  Lewis family members then transferred that money to personal bank accounts and purchased items such as 10 automobiles, including an $89,000 Bentley and a $55,900 Mercedes....

Bank records included in court documents show Helping Hands billed Medicaid a steadily increasing amount starting in January 2009, when the agency received $13,500 from the federal health program.  By April 2010, Helping Hands was billing Medicaid for $1 million per month.  The agency closed for good in 2011.

Based on the amount of money apparently involved in this federal fraud (as well as enhancements for leadership role and other aggravating guideline factors), I would guess that the guidelines recommend a sentence of a decade or more for Truman and Norman Lewis. But would it be more effective and efficient for them to get a shorter prison sentence coupled with a rigorous set of restitution obligations to help ensure federal taxpayers are made whole?

You be the judge (and, ideally, propose in the comments a sentence that makes a clever pun about Helping Hands).

March 17, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, February 21, 2014

SCOTUS permits additional briefing on CP restitution issues in light of Burrage

The Supreme Court issued a notable two-sentence order today in Paroline v. US, the pending case on child porn restitution sentences.  Here is the text of the order:

The motion of respondent Amy Unknown for leave to file a supplemental brief after argument is granted.  The other parties may file supplemental briefs, not to exceed 3,000 words each, addressing the effect of our decision in Burrage v. United States, 571 U. S. ___ (2014), on this case, on or before Friday, March 7, 2014.

Lyle Denniston over SCOTUSblog has an extended discussion of this intriguing new development, which includes these passages:

The Court, it appears, did not stir up this new issue on its own.  The day after the Burrage decision had been issued, counsel for Doyle Randall Paroline sent a letter to the Court suggesting that this ruling should apply to his client’s case.  The new “Amy Unknown” brief came in response to that, and argued that there were fundamental differences involved.

Two different laws are at issue in the two cases, but the Court’s new action seemed to suggest that there may be some overlap in how to interpret them....

In a letter to the Court Clerk on January 29, Houston attorney Stanley G. Schneider noted the new Burrage ruling, and said he believed it “should apply to the arguments made on behalf of Mr. Paroline.”  The letter offered to submit a brief on the point.

In the supplemental brief, filed on February 11, lawyers for “Amy Unknown” disputed that suggestion, saying that the Court was obliged to interpret a criminal law like the heroin sentence enhancement law in a strict way, but that there is a long tradition of interpreting remedies for torts (legal wrongs) more expansively.  In particular, the new brief said, there is strong authority for the concept of assessing the full amount of damages for a tort to those who had contributed to the harms done.

The supplemental filing accepted by the Supreme Court today from lawyers for “Amy Unknown” is available at this link.

A few (of many) prior posts on Paroline and child porn restitution issues:

February 21, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, February 06, 2014

"Profiting from Probation: America's 'Offender-Funded' Probation Industry"

The title of this post is the title of this notable new report from Human Rights Watch. Here is the start of the report's summary:

The United States Supreme Court has ruled that a person sentenced to probation cannot then be incarcerated simply for failing to pay a fine that they genuinely cannot afford. Yet many misdemeanor courts routinely jail probationers who say they cannot afford to pay what they owe — and they do so in reliance on the assurances of for-profit companies with a financial stake in every single one of those cases.

Every year, US courts sentence several hundred thousand people to probation and place them under the supervision of for-profit companies for months or years at a time.  They then require probationers to pay these companies for their services.  Many of these offenders are only guilty of minor traffic violations like speeding or driving without proof of insurance.  Others have shoplifted, been cited for public drunkenness, or committed other misdemeanor crimes.  Many of these offenses carry no real threat of jail time in and of themselves, yet each month, courts issue thousands of arrest warrants for offenders who fail to make adequate payments towards fines and probation company fees.

This report, based largely on more than 75 interviews conducted with people in the states of Alabama, Georgia, and Mississippi during the second half of 2013, describes patterns of abuse and financial hardship inflicted by the “offender-funded” model of privatized probation that prevails in well over 1,000 courts across the US.  It shows how some company probation officers behave like abusive debt collectors.  It explains how some courts and probation companies combine to jail offenders who fall behind on payments they cannot afford to make, in spite of clear legal protections meant to prohibit this.  It also argues that the fee structure of offender-funded probation is inherently discriminatory against poor offenders, and imposes the greatest financial burden on those who are least able to afford to pay.  In fact, the business of many private probation companies is built largely on the willingness of courts to discriminate against poor offenders who can only afford to pay their fines in installments over time.

The problems described in this report are not a consequence of probation privatization per se.  Rather, they arise because public officials allow probation companies to profit by extracting fees directly from probationers, and then fail to exercise the kind of oversight needed to protect probationers from abusive and extortionate practices.  All too often, offenders on private probation are threatened with jail for failing to pay probation fees they simply cannot afford, and some spend time behind bars.

February 6, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (4) | TrackBack