Sunday, August 16, 2015

New York Times magazine highlights link between bail and pleas

Images (10)This cover story from today's New York Times magazine is headlined "The Bail Trap," and this pull-out quote appearing in the article captures why sentencing fans ought to pay attention to bail reform efforts: "Across the criminal-justice system, bail acts as a tool of compulsion, forcing people who would not otherwise plead guilty to do so."  Here is a bit more from a lengthy article that merits a full read:

In 1689, the English Bill of Rights outlawed the widespread practice of keeping defendants in jail by setting deliberately unaffordable bail, declaring that "excessive bail shall not be required, nor excessive fines imposed."  The same language was adopted word for word a century later in the Eighth Amendment to the United States Constitution.

But as bail has evolved in America, it has become less and less a tool for keeping people out of jail, and more and more a trap door for those who cannot afford to pay it. Unsecured bond has become vanishingly rare, and in most jurisdictions, there are only two ways to make bail: post the entire amount yourself up front — what’s called "money bail" or "cash bail" — or pay a commercial bail bondsman to do so. For relatively low bail amounts — say, below $2,000, the range in which most New York City bails fall — the second option often doesn’t even exist; bondsmen can’t make enough money from such small bails to make it worth their while.

With national attention suddenly focused on the criminal­-justice system, bail has been cited as an easy target for reformers.  But ensuring that no one is held in jail based on poverty would, in many respects, necessitate a complete reordering of criminal justice. The open secret is that in most jurisdictions, bail is the grease that keeps the gears of the overburdened system turning.  Faced with the prospect of going to jail for want of bail, many defendants accept plea deals instead, sometimes at their arraignments.  New York City courts processed 365,000 arraignments in 2013; well under 5 percent of those cases went all the way to a trial resolution.  If even a small fraction of those defendants asserted their right to a trial, criminal courts would be overwhelmed.  By encouraging poor defendants to plead guilty, bail keeps the system afloat....

In early 2013, Jonathan Lippman, chief judge of the State of New York, decided that the business­as­usual approach to setting bail could not be tolerated any longer. "We still have a long way to go before we can claim that we have established a coherent, rational approach to pretrial justice," he said in his annual State of the Judiciary address. "Incarcerating indigent defendants for no other reason than that they cannot meet even a minimum bail amount strips our justice system of its credibility and distorts its operation." Lippman sent a package of proposed legislation to reduce the reliance on cash bail to lawmakers in Albany, and he lobbied for the reforms hard in the press. His efforts went nowhere. "Zero," Lippman says, shaking his head. "Nothing." Lawmakers had no appetite for bail reform.

Two years later, that may be changing. This summer, the New York City Council took a tentative step toward reform by earmarking $1.4 million for a citywide fund to bail out low­-level offenders. The fund, proposed with much fanfare by Speaker Melissa Mark-­Viverito in her State of the City address in February, is modeled on a number of smaller bail funds around the city. The oldest of these, the Bronx Freedom Fund, was established in 2007 in association with the Bronx Defenders, a public­-defender organization. The founders shut down the fund after only a year and a half, after a judge argued that it was effectively operating as an unlicensed bail­bond business. But before they did, the fund bailed out nearly 200 defendants and generated some illuminating statistics. Ninety-­six percent of the fund’s clients made it toevery one of their court appearances, a return rate higher even than that of people who posted their own bail. More than half of the Freedom Fund’s clients, now able to fight their cases outside jail, saw their charges completely dismissed. Not a single client went to jail on the charges for which bail had been posted. By comparison, defendants held on bail for the duration of their cases were convicted 92 percent of the time. The numbers showed what everyone familiar with the system already knew anecdotally: Bail makes poor people who would otherwise win their cases plead guilty.

August 16, 2015 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing | Permalink | Comments (1)

Tuesday, May 26, 2015

"Charging Inmates Perpetuates Mass Incarceration"

The title of this post is the title of this notable new Brennan Center white paper authored by Lauren-Brooke Eisen.  Here is its introduction (with endnotes omitted):

The American criminal justice system is replete with fees that attempt to shift costs from the government to those accused and convicted of breaking the law.  Courts impose monetary sanctions on a “substantial majority of the millions of U.S. residents convicted of felony and misdemeanor crimes each year.”  Every aspect of the criminal justice process has become ripe for charging a fee.  In fact, an estimated 10 million people owe more than $50 billion in debt resulting from their involvement in the criminal justice system. In the last few decades, additional fees have proliferated, such as charges for police transport, case filing, felony surcharges, electronic monitoring, drug testing, and sex offender registration.  Unlike fines, whose purpose is to punish, and restitution, which is intended to compensate victims of crimes for their loss, user fees are intended to raise revenue.  The Justice Department’s March 2015 report on practices in Ferguson, Mo. highlights the overreliance on court fines as a primary source of revenue for the jurisdiction.  The New York Times noted that the report found that “internal emails show city officials pushing for more tickets and fines.”

Fees and debts are increasing partially because the criminal justice system has grown bigger.  With 2.2 million people behind bars, courts — and all the relevant agencies — have expanded as well.  Since the 1970s, incarceration in the U.S. has risen steeply, dwarfing the incarceration rate of any other nation on Earth.  The U.S. added about 1.1 million incarcerated people, almost doubling the nation’s incarcerated population, in the past 20 years.  The fiscal costs of corrections are high — more than $80 billion annually — about equivalent to the budget of the federal Department of Education.6 A recent report by the Center on Budget and Policy Priorities finds that corrections is currently the third-largest category of spending in most states, behind education and health care.  In fact, somewhat disconcertingly, 11 states spent more of their general funds on corrections than on higher education in 2013.

Fees already on the books have increased.  And, these fees are extending into state and local corrections.

As a result of these runaway costs, counties and states continue to struggle with ways to increase revenue to pay for exorbitant incarceration bills.  In 2010, the mean annual state corrections expenditure per inmate was $28,323, although a quarter of states spent $40,175 or more.  Not surprisingly, departments of corrections and jails are increasingly authorized to charge inmates for the cost of their imprisonment.  Although this policy is alarming, less widely understood but equally troubling is the reality that these incarceration fees perpetuate our nation’s addiction to incarceration.  This policy brief exposes how the widespread nature of charging fees to those who are incarcerated connects to the larger problem of mass incarceration in this country.

May 26, 2015 in Fines, Restitution and Other Economic Sanctions, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Wednesday, May 20, 2015

Spotlighting who profits from "Piling on Criminal Fees"

Professors Ronald Wright and Wayne Logan have this important new Huffington Post article summarizing the important themes from their important article titled "Mercenary Criminal Justice." Here are excerpts:

Criminal courts sometime function as fee-generating machines....  The problem here is not any single criminal fee; the problem is how they stack up to create injustice.  That's why we are calling for a statewide Commission on Criminal Fees.

In a recent law review article, "Mercenary Criminal Justice," we chronicled the historically central role of fee-generation in U.S. criminal justice systems, a tendency that became even more pronounced as a result of the recent fiscal crisis.  We call this system "mercenary" because the revenues affect the enforcement decisions of actors in the justice system, who start to depend on that revenue, and put their own job security above the job of doing individual justice.  As the Justice Department's report on Ferguson noted, city officials there asked the police and courts to increase ticket collection, explicitly to increase their revenue, basically treating minor criminal offenders as ATM machines.  This mistreatment is all the more troubling when the fees and fines land most heavily on racial minorities and the poor, as they routinely do...

The beneficiaries of the revenue hail from diverse and powerful institutions. Courts, crime labs, prosecutors, and even public defenders all see the dollar signs and make their requests.  What's the harm, after all, in asking for another $100 from an arrestee, convict, or probationer?

And it is not only government employees who have their hands out: private sector actors (with profit motives) have increasingly gotten a piece of the action. Courts, for instance, ask private contractors to collect fees and fines, allowing them to add their own service charges to the total bill.  Private companies, moreover, have been active in probation services. More recently, the American Legislative Exchange Council (or ALEC) started promoting a variation on this theme -- called "post-conviction bail" -- that empowers private bail bond dealers to monitor defendant compliance with post-release conditions. If the released inmate does not comply, the dealer tracks him down and collects a new financial penalty.

Any one of these fees or fines might be a reasonable part of a non-prison punishment, promoting public safety and the interests of defendants alike.  The trouble comes when nobody minds the total effects of all these fees on individuals.  Taken together, even the most modest and well-justified fees can trap the indigent in the control of criminal courts, always paying but never paying their debt down to zero.  We believe that a statewide Commission on Criminal Fees can see the big picture and prevent this piling-on effect. Before authorizing a new fee to support the state crime lab, for instance, the Commission would ask how that fee interacts with the public defender's application fee, the probation supervision fee, and all the other fees currently imposed on individuals ensnared in the justice system.

May 20, 2015 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, April 27, 2015

Is US push for sentencing reform progressive enough to embrace progressive "day fines"?

The question in the title of this post is prompted by this notable New York Times article about fine punishment for speeding in Finland.  The piece is headlined "Speeding in Finland Can Cost a Fortune, if You Already Have One," and here are excerpts:

Getting a speeding ticket is not a feel­good moment for anyone. But consider Reima Kuisla, a Finnish businessman.  He was recently fined 54,024 euros (about $58,000) for traveling a modest, if illegal, 64 miles per hour in a 50 m.p.h. zone.  And no, the 54,024 euros did not turn out to be a typo, or a mistake of any kind.

Mr. Kuisla is a millionaire, and in Finland the fines for more serious speeding infractions are calculated according to income.  The thinking here is that if it stings for the little guy, it should sting for the big guy, too.  The ticket had its desired effect. Mr. Kuisla, 61, took to Facebook last month with 12 furious posts in which he included a picture of his speeding ticket and a picture of what 54,024 euros could buy if it were not going to the state coffers — a new Mercedes.  He said he was seriously considering leaving Finland altogether....

The Nordic countries have long had a strong egalitarian streak, embracing progressive taxation and high levels of social spending.  Perhaps less well known is that they also practice progressive punishment, when it comes to certain fines.  A rich person, many citizens here believe, should pay more for the same offense if justice is to be served. The question is: How much more?...

At the University of Helsinki, Jussi Lahti, 35, a graduate student in geography, said that he could understand why Mr. Kuisla was upset, but that he considered the principle of an equal percentage fair. And, he added, Mr. Kuisla “had a choice when he decided to speed.”

The size of Mr. Kuisla’s ticket nonetheless drew considerable attention here as television shows and newspapers debated the merits of Finland’s system, which uses a complex formula based on income to calculate an individual’s fines.  Some wondered whether the government should stop imposing such fines for infractions at relatively low speeds. Some suggested that a fine so big was really a form of taxation.  But the idea that the rich should pay heavier fines did not seem to be much in question. “It is an old system,” said Pasi Kemppainen, chief superintendent at the National Police Board. “It may lead to high fines, but only for people who can afford it.”

In fact, the Finnish “day fine” system, also in use in some other Scandinavian countries, dates to the 1920s, when fines based on income were instituted for all manner of lesser crimes, such as petty theft and assault, and helped greatly reduce the prison population. The fines are calculated based on half an offender’s daily net income, with some consideration for the number of children under his or her roof and a deduction deemed to be enough to cover basic living expenses, currently 255 euros per month.

Then, that figure is multiplied by the number of days of income the offender should lose, according to the severity of the offense.  Mr. Kuisla, a betting man who parlayed his winnings into a real estate empire, was clocked speeding near the Seinajoki airport.  Given the speed he was going, Mr. Kuisla was assessed eight days.  His fine was then calculated from his 2013 income, 6,559,742 euros, or more than $7 million at current exchange rates.

Someone committing a similar offense and earning about 50,000 euros a year, or $54,000, none of it capital gains, and with no young children, would get a fine of about 345 euros, or about $370.  Someone earning 300,000 euros ($322,000), would have to pay about 1,480 euros ($1,590).  When the “day fine system” was devised for petty crimes, Finland did not even have any speed limits on its roads. Those did not arrive until the 1970s....

Until he was issued the speeding ticket, Mr. Kuisla used his Facebook page largely to post pictures of his winning horses or the lobbies and bars of the hotels he owns.  But the ticket seemed to focus his attention on Finnish policies that he said discouraged entrepreneurs, apparently a reference to the country’s progressive tax system and its high inheritance taxes. High earners can face an income tax rate of more than 50 percent.  “Finland is now an impossible country to live in for people with a large income and wealth!” he posted on March 2.

But online comments in newspapers suggested a strong showing for the other side. “This says a lot about the times when the stinkingly rich can’t even take their fines for crimes, but are immediately moving out of the country.  Farewell, we won’t miss you,” said one post in The Helsingin Sanomat, a daily newspaper and website....

Mr. Kuisla’s $58,000 ticket is not even the most severe speeding ticket issued in recent years.  According to another daily newspaper, Ilkka, Mr. Kuisla himself got an even bigger fine in 2013 when he was going about 76 m.p.h. in a 50 m.p.h. zone.  That ticket was for 63,448 euros, about $83,769 at the time.  Bigger yet was the ticket issued to a 44-­year-­old Nokia executive in 2002, when he was caught blowing through Helsinki on his Harley motorcycle and was hit with a $103,600 fine, based on a $12.5 million yearly income.  

Both tickets were appealed and in the end reduced.  Usually, appeals are based on financial issues, such as a one­-time sale of stock that year. But judges have great leeway, experts said. Mr. Kuisla ended up paying 5,346 euros for the 2013 ticket.

Long-time readers know that I am a huge fan of economic sanctions, and I have long thought that the Scandinavian "day fine" approach to punishment for lower-level crimes to be much more fair and effective than short terms of incarceration. I think it is fair to claim (and perhaps complain) that these kinds of day fine operate more like taxes than like traditional punishments; whatever label is attached, I suspect that defendants (especially rich ones) drive much more carefully in jurisdictions where an infraction is likely to have a real financial bite. Among other potential benefits, a "day fine" approach to certain lower-level "quality of life" offenses might prompt law enforcement to concentrate more of their policing resources in richer rather than poorer neighborhoods.

Perhaps needless to say, I doubt the billionaires who support sentencing reform in the US on both the left (George Soros) and the right (the Koch brothers) are likely to get behind a progressive "day fine" approach to devising effective alternatives to prison. But maybe all the folks now protesting police abuses in Baltimore and elsewhere might consider urging police department to adopt such an approach to police discipline (with the monies, I would urge, going to victim restitution funds).

April 27, 2015 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentencing around the world | Permalink | Comments (4) | TrackBack

Wednesday, April 15, 2015

New York State court concludes multiple mandatory minimum fines constitutionally excessive

Thanks to this post by Eugene Volokh, I discovered an interesting New York trial court Excessive Fine ruling in Pujols v. City of New York, No. 103637/12 (N.Y. Sup. Ct. April 2, 2015) (available here). Here is the heart of the ruling concerning an attack on a $11,175 fine for illegally posting 149 flyers advertising babysitting services:

It is undisputed that petitioner violated the relevant Administrative Code provision and substantial evidence supports ECB's determination that petitioner is liable for violating § 10-119 of the New York City Administrative Code, which generally prohibits the posting or other placement of handbills, posters, notices, signs and other written materials on certain public property.  Nonetheless, this Court finds that under the specific circumstances presented herein, the imposition of the mandatory minimum of $75.00 per violation for a total penalty of $11,175.00, amounts to an unconstitutionally excessive fine, and cannot be viewed as solely remedial.

Moreover, this Court, in considering the seriousness of the offense, the severity of the harm caused to petitioner, and the City's objective to deter posting of materials on public property, we find that the fine imposed is "grossly disproportional" to the gravity of petitioner's offense.

April 15, 2015 in Fines, Restitution and Other Economic Sanctions, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

Wednesday, March 18, 2015

"Law & Tactics for a Market-Reality Narcotics Policy"

The title of this post is the title of this notable new article by Mark William Osler now available via SSRN. Here is the abstract:

The War on Drugs seems to be ending, leading to a crucial question: What comes next? Legalization of narcotics (marijuana aside) is unlikely, and the pursuit of broad incarceration to create deterrence or incapacitation has been largely disavowed.  However, drug use continues to be a profound social problem that must be confronted.

This article argues for the aggressive use of asset forfeiture to capture cash flow to core sources in order to systemically disrupt narcotics networks.  Importantly, such a project would steer police efforts away from capturing people, drugs, or the profits retained by drug dealers and instead target the lifeblood of the narcotics business, which is proceeds flowing back to mass producers, importers, and major wholesalers of drugs.

This tactic would address the continuing narcotics problem without mass incarceration or the problems associated with seizing small amounts of profit through forfeitures. Fortunately, the necessary tools are already embedded in existing federal statutes; all that is left to do is to use them wisely in a new and more effective way.

March 18, 2015 in Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Monday, February 23, 2015

"What rights do felons have over their surrendered firearms?"

The question in the title of this post is the substance of the title of this helpful SCOTUS argument preview of Henderson v. US authored by Richard Re over at SCOTUSblog.  Here are excerpts which highlight why I think of Henderson as an interesting and dynamic sentencing case:

Tuesday, the Court will hear argument in Henderson v. United States, a complex case that offers a blend of criminal law, property, and remedies, with soft accents of constitutionalism. The basic question is this: when an arrested individual surrenders his firearms to the government, and his subsequent felony conviction renders him legally ineligible to possess those weapons, what happens to the guns?

The petitioner, Tony Henderson, was a Border Patrol agent convicted of distributing marijuana, a felony offense. Shortly after being arrested in 2006, Henderson surrendered his personal collection of firearms and other weapons to federal agents as a condition of release during the pendency of his criminal case. According to Henderson, his weapons collection included valuable items that had long been in the family, as well as an “antique.” Moreover, the collection was and remains Henderson’s lawful property. So, starting in 2008, Henderson asked authorities to transfer his weapons collection to someone else. But prosecutors and courts alike declined. Understandably enough, Henderson didn’t want his collection to escheat to the government like so much feudal property. So he’s pressed his rights to the Supreme Court.

The legal issues start with a conflict between a procedural rule and a federal statute. Under Federal Rule of Criminal Procedure 41, the government usually has to “return” a defendant’s lawful property. But that can’t happen in Henderson’s case because a federal criminal law (18 U.S.C. § 922(g)(1)) prohibits convicted felons, including Henderson, from possessing firearms. So if Rule 41 were allowed to operate according to its terms, Henderson would instantly be in violation of Section 922(g)(1). The courts below recognized that result as contrary to federal law and policy. (In a footnote in its merits brief, the federal government acknowledges that some of Henderson’s long-withheld weapons collection actually doesn’t consist of firearms at all. The government accordingly assures the Court that the “FBI is making the necessary arrangements to return the crossbow and the muzzle-loading rifle to petitioner.”)

To get around Section 922(g)(1), Henderson asked the government to transfer his firearms to third parties who are permitted to possess such items – specifically, either his wife or a friend who had promised to pay for them. Those proposed transfers, Henderson points out, wouldn’t result in his own possession of the firearms. And, critically, the proposed transfers would honor Henderson’s continued ownership of the weapons.... While Rule 41 by its terms may authorize only the “return” of property, Henderson argues that the federal district courts have “equitable” authority to direct transfers to third parties....

Without questioning that federal equitable authority operates in this area, the courts below apparently rejected Henderson’s transfer request in part based on the ancient rule of “unclean hands.” Under this venerable maxim, a wrongdoer (whose hands are figuratively dirty) may not seek relief at equity in connection with his own wrongful act. Based on a broad view of that precept, the courts below seemed to say that convicted felons are categorically barred from equitable relief as to their government-held property. Henderson contends that this holding revives ancient principles of “outlawry,” whereby criminals lose the protection of the law, while also running afoul of the Due Process Clause, the Takings Clause, and other constitutional provisions. However, the Solicitor General disputes that the decision below actually rested on this ground and — more importantly — has declined to defend it.

Instead, the federal government defends the result below on the ground that Section 922(g)(1) should be read to prohibit not just felons’ actual possession of firearms, but also their “constructive possession” of such weapons. On this view, impermissible constructive possession occurs when a convicted felon can exert some control over the next physical possessor of a particular item of property. Thus, Henderson would exert constructive possession – barred by federal law – if he could direct the transfer of his firearms to any particular person, including his wife or friend. Such direction, the government contends, would also create an unacceptable risk of letting the firearm find its way back to the felon. A permissible approach, in the government’s opinion, would be for it to transfer weapons to a licensed firearms dealer for sale, with proceeds going to the convicted felon.

Having gotten the federal government to endorse some remedial third-party transfers – a significant development in itself – Henderson asks why a convicted felon can’t at least nominate specific third parties, like a museum or a relative, to receive previously surrendered firearms that double as historical artifacts or family heirlooms....

While the ultimate outcome may turn in part on case-specific facts, the case touches on a number of important public debates. This becomes most obvious when the parties peripherally joust over the Second Amendment. The case has also drawn a number of amici. For instance, the Institute for Justice connects the case to public debate over forfeitures by asserting an aged canon against such forfeitures. Meanwhile, the National Association of Criminal Defense Lawyers and the National Rifle Association of America respectively argue from the Excessive Fines Clause and, of course, the Second Amendment. The Brady Center to Prevent Gun Violence, the government’s only amicus, also joins issue.

February 23, 2015 in Fines, Restitution and Other Economic Sanctions, Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, February 16, 2015

Senate unanimously passes child porn restitution bill to fix Paroline problems

As report in this article, last week the U.S. Senate finally passed a bill to restructure the standards and procedures for restitution awards for victims of child porn downloading offenses.  This bill made it through the full Senate a little less than year after the Supreme Court issued a split decision on this matter in the Paroline case.  Here are the basics of the response by Congress:

A bill named for two women whose childhood images were turned into heinous pornography was handily passed in the Senate on Wednesday. The Amy and Vicky Child Pornography Victim Restitution Improvement Act was approved by a 98-0 vote.

The measure gives hope to victims that they will finally be able to win major compensation from any single person who illegally viewed, made or distributed their images. Victims of child pornography and other sexual exploitation “ought to have access to full restitution from any single perpetrator for their losses,” said Senate Judiciary Committee Chairman Chuck Grassley, Iowa Republican.

The bill establishes a minimum amount for damages for certain child pornography offenses and makes any single perpetrator responsible for the full damages created by a crime that involves multiple perpetrators, Mr. Grassley’s office said. Perpetrators, instead of victims, will have the burden of suing each other to recover damages they paid beyond their offenses. Medical costs, lost income and therapy are included in compensable damages.

The bill responds to a 2014 Supreme Court 5-4 ruling in Paroline v. United States that said people convicted of viewing, making or distributing child pornography should be ordered to pay a nontrivial amount of restitution — but it should fit the scale of the offense....

The Paroline case stemmed from a lawsuit filed by a woman known as “Amy Unknown” against Doyle R. Paroline of Texas, who was convicted of having two images of her in his child pornography collection. When the 5th U.S. Circuit Court of Appeals ruled in Amy’s favor and ordered Paroline to pay $3.4 million in damages to her, Paroline asked the Supreme Court to review his case. Paroline’s court-appointed attorney said after they won last year that he would contest any restitution award against his client.

Amy, now an adult, was sexually assaulted by her uncle when she was about 9 years old. The uncle put pictures of her rape online, and those images have been shared by pedophiles worldwide. “Vicky” is the pseudonym of another victim, whose father raped her as a child and took “orders” from men to make videos of her being bound and sodomized.

I am a bit concerned that, even if this bill makes it through the House and is signed into law, defendants like Paroline and others who have already been prosecuted for child pornography offenses will be able to rely on ex post facto doctrines to still avoid having to pay any significant restitution awards to Amy or Vicky or other victims. Still, this new statue could and should help child porn victims recover significant sums from future offenders.

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

February 16, 2015 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack

Friday, January 16, 2015

AG Holder announces notable new limits on civil forfeitures to fund local police

As reported in this Washington Post article, headlined "Holder limits seized-asset sharing process that split billions with local, state police," the out-going Attorney General today announce a notable new policy that ought to take some of the economic incentives out of some drug war enforcement activities. Here are the basics:

Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without proving that a crime occurred. Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.

Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing. The program has enabled local and state police to make seizures and then have them “adopted” by federal agencies, which share in the proceeds. The program allowed police departments and drug task forces to keep up to 80 percent of the proceeds of the adopted seizures, with the rest going to federal agencies.

“With this new policy, effective immediately, the Justice Department is taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” Holder said in a statement. Holder’s decision allows some limited exceptions, including illegal firearms, ammunition, explosives and property associated with child pornography, a small fraction of the total. This would eliminate virtually all cash and vehicle seizures made by local and state police from the program.

While police can continue to make seizures under their own state laws, the federal program was easy to use and required most of the proceeds from the seizures to go to local and state police departments. Many states require seized proceeds to go into the general fund. A Justice official, who spoke on the condition of anonymity in order to discuss the attorney general’s motivation, said Holder “also believes that the new policy will eliminate any possibility that the adoption process might unintentionally incentivize unnecessary stops and seizures.”

Holder’s decision follows a Washington Post investigation published in September that found that police have made cash seizures worth almost $2.5 billion from motorists and others without search warrants or indictments since the terrorist attacks of Sept. 11, 2001.

January 16, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack

Friday, December 26, 2014

South Dakota legislator suggests using drug war proceeds to fund public defenders

This local article, headlined "Hickey: Use seized drug money for public defender," reports on some notable public advocacy by a public official concerning public defenders in South Dakota.  Here are the details:

A Sioux Falls lawmaker wants to use seized drug money to help pay the legal defense bills of those who can't afford a lawyer, but the state's attorney general says counties should look elsewhere to save money on court-appointed attorney costs.

Rep. Steve Hickey, R-Sioux Falls, says the money in the state's Drug Control Fund is correctly used to tackle the problem of drug use, but he says he worries about the legal costs counties bear after the arrest. The fund is made up of money seized during drug investigations and money from the sale of seized property, such as vehicles.

"My thought is that we should put some of that money not just into catching more bad guys, but put some of it into the cost of defending them we're stuck with afterward," Hickey said. "We get excited about sobriety checkpoints and saturation patrols, but after those tickets get written, someone has to pick up the tab."

Hickey's bill would ask for a more thorough accounting of the money seized by law enforcement from suspected drug dealers and direct between 25 percent and 50 percent of it toward the legal fees amassed by counties. The fund is administered by Attorney General Marty Jackley's Office, which decides where the seized money is spent. "It seems to me that there's very little oversight," Hickey said....

Counties are legally obligated to offer court-appointed lawyers to the indigent. Local governments can ask that legal fees be repaid, but many bills go unpaid, either because defendants don't earn enough or own enough to pay or because they go to prison or jail.

Hickey's proposal comes alongside growing concerns over court-appointed attorney fees in Minnehaha County. Commissioners want judges to consider income guidelines when deciding whether to appoint a public defender, and they've offered a county employee to check defendants' income statements.

The state's largest county has spent $3.8 million on indigent defense this year, but reimbursements from defendants stand at $824,000. The county also has more than $26 million in liens on defendants who haven't paid their bill.

Commissioner Cindy Heiberger hasn't seen Hickey's proposal, but says any discussion about helping the counties that shoulder the burden of legal defense is welcome. "It sounds really good on the surface. Anything we can use to pay for court-appointed attorneys or court costs is something we should talk about," Heiberger said. But, she cautioned, "when we're taking money from one pot and moving it to another, we need to make sure the logistics make sense for everyone."

The notion of using seized drug money to pay for criminal defense doesn't sit well with Attorney General Marty Jackley. The drug control fund consists of money seized from suspected drug sales and other cash collected from auctioning off seized vehicles and other property. "I do not support using the profits of criminals to defend their activities," Jackley said.

The money pays the drug testing bills for cities and counties, Jackley said, and the remaining money is used to buy vehicles, camera systems and other items for local police and sheriff's departments. Giving some of the money to counties for indigent defense could force local agencies to bear the cost of drug testing and reduce the availability of funds for equipment upgrades and replacements.

In 2013, $70,514 was awarded from the drug control fund for law enforcement and prosecution costs in Sioux Falls and Minnehaha County. Overall in 2013, $643,722 was awarded from the drug control fund to local agencies. Drug control money pays an average of $60,000 per month to local law enforcement for drug testing, according to DCI records.

December 26, 2014 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, October 26, 2014

More drug war collateral damage: "Law Lets I.R.S. Seize Accounts on Suspicion, No Crime Required"

The title of this post includes my extra bit of spin on the headline of this notable front-page New York Times article, which gets started this way:

For almost 40 years, Carole Hinders has dished out Mexican specialties at her modest cash-only restaurant.  For just as long, she deposited the earnings at a small bank branch a block away — until last year, when two tax agents knocked on her door and informed her that they had seized her checking account, almost $33,000.

The Internal Revenue Service agents did not accuse Ms. Hinders of money laundering or cheating on her taxes — in fact, she has not been charged with any crime. Instead, the money was seized solely because she had deposited less than $10,000 at a time, which they viewed as an attempt to avoid triggering a required government report.  “How can this happen?” Ms. Hinders said in a recent interview. “Who takes your money before they prove that you’ve done anything wrong with it?”  

The federal government does.  Using a law designed to catch drug traffickers, racketeers and terrorists by tracking their cash, the government has gone after run-of-the-mill business owners and wage earners without so much as an allegation that they have committed serious crimes.  The government can take the money without ever filing a criminal complaint, and the owners are left to prove they are innocent. Many give up.

“They’re going after people who are really not criminals,” said David Smith, a former federal prosecutor who is now a forfeiture expert and lawyer in Virginia.  “They’re middle-class citizens who have never had any trouble with the law.”

On Thursday, in response to questions from The New York Times, the I.R.S. announced that it would curtail the practice, focusing instead on cases where the money is believed to have been acquired illegally or seizure is deemed justified by “exceptional circumstances.”

Richard Weber, the chief of Criminal Investigation at the I.R.S., said in a written statement,  “This policy update will ensure that C.I. continues to focus our limited investigative resources on identifying and investigating violations within our jurisdiction that closely align with C.I.’s mission and key priorities.”  He added that making deposits under $10,000 to evade reporting requirements, called structuring, is still a crime whether the money is from legal or illegal sources.  The new policy will not apply to past seizures.

October 26, 2014 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing | Permalink | Comments (21) | TrackBack

Wednesday, October 01, 2014

"Prison bankers cash in on captive customers: Inmates' families gouged by fees"

The title of this post is the headline of this one part of some impressive reporting about the economic realities facing prisoners and their families being done by the Center for Public Integrity and CNBC.  Here is an excerpt from this piece that provides a basic summary:

JPay and other prison bankers collect tens of millions of dollars every year from inmates’ families in fees for basic financial services. To make payments, some forego medical care, skip utility bills and limit contact with their imprisoned relatives, the Center for Public Integrity found in a six-month investigation.

Inmates earn as little as 12 cents per hour in many places, wages that have not increased for decades. The prices they pay for goods to meet their basic needs continue to increase.

By erecting a virtual tollbooth at the prison gate, JPay has become a critical financial conduit for an opaque constellation of vendors that profit from millions of poor families with incarcerated loved ones.

JPay streamlines the flow of cash into prisons, making it easier for corrections agencies to take a cut. Prisons do so directly, by deducting fees and charges before the money hits an inmate’s account. They also allow phone and commissary vendors to charge marked-up prices, then collect a share of the profits generated by these contractors.

Taken together, the costs imposed by JPay, phone companies, prison store operators and corrections agencies make it far more difficult for poor families to escape poverty so long as they have a loved one in the system.

Here are links to additional related reporting as part of this project:

October 1, 2014 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

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

Wednesday, January 22, 2014

"Court struggles with restitution for child porn"

The title of this post is the headline of this AP report on this morning's SCOTUS oral argument in Paroline v. United States.  The AP article highlights the Justices' difficulties sorting through all the challenging competing issues in a case that regular readers know I find fascinating.

Similarly, Lyle Denniston at SCOTUSblog has an effective summary of today's argument in this new post which starts and ends this way:

The Supreme Court left no doubt on Wednesday that it is willing to do its part to make sure that victims of child pornography get paid money to offset the harm done to them. But it also found itself very much in doubt about just what that part would be. The answer in the case of Paroline v. United States may depend upon how the Court understands two words: “apportion” and “contribution.”...

The hearing ended where it began: in unresolved complexity.

I hope to find time in the next few days to read carefully and comment upon the substance of the argument today, and everyone can find now at this link the full transcript.

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

January 22, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Monday, January 20, 2014

Explaining why I am rooting so hard for "Amy" in Paroline

Oral argument in the fascinating Supreme Court case of Paroline v. United States now is just a couple of days away, and this new AP article provides effective background on the case while also helping to spotlight some reasons I am rooting hard for "Amy" and her advocates to prevail:

The case being argued at the Supreme Court on Wednesday involves a Texas man who pleaded guilty to having images of children engaged in sex acts on his computer.  Doyle Randall Paroline is appealing an order holding him responsible for the full amount of losses, nearly $3.4 million, suffered by the woman known as Amy.  Of the several hundred incriminating images on Paroline's computer, just two were of Amy.

Advocates for child pornography victims say that holding defendants liable for the entire amount of losses better reflects the ongoing harm that victims suffer each time someone views the images online. The threat of a large financial judgment, coupled with a prison term, also might deter some people from looking at the images in the first place, the advocates say.

Thirty-four states, dozens of victims' rights and child advocacy groups, local prosecutors and members of Congress are urging the court to uphold the ruling against Paroline by the New Orleans-based 5th U.S. Circuit Court of Appeals.

No one has intervened on Paroline's behalf. But his lawyer, Stanley Schneider of Houston, said in court papers that there is no link between the restitution ordered by the appeals court and Paroline's conduct. "An award of $3.4 million against an individual for possessing two images of child pornography is punitive and grossly disproportionate," Schneider said....

The Obama administration is trying to steer a middle course. Solicitor General Donald Verrilli Jr. said the government agrees with Amy that her injury comes from the widespread viewing on the Internet of the assaults by her uncle. "The real question is whether ... a court must impose all of Amy's aggregate losses on each defendant. On that issue, Amy and the government take different views," Verrilli told the court. The administration said the correct answer is greater than zero and less than the entire amount and said trial judges should make the determination....

Regardless of the outcome of the court case, Congress could change the law. The U.S. Sentencing Commission recommended that lawmakers consider doing just that to eliminate confusion among federal judges about the right way to calculate restitution....

Since 2005, there have been about 2,000 prosecutions in federal court that, like Paroline's, included images of the rapes, for which Amy's uncle spent about 10 years in prison and paid a few thousand dollars for counseling sessions for Amy.... Courts so far have awarded restitution in 182 cases and Amy has collected $1.6 million. Of that total, $1.2 million came from one man.

Typically, the court-ordered awards and the amounts collected have been much smaller, as little as $50 in one case, according to Justice Department records. Many judges have ordered no payments at all, Marsh said. The restitution law does not allow Amy to receive more than the lifetime estimate of her losses, Marsh said. But until the 5th Circuit ruling, Marsh said, "She has been forced to go around the country endlessly seeking out defendants with assets. It's endless, and it takes a toll on the victim."

If upheld, the ruling would change the equation.  Courts would not have to determine exactly how much harm any one defendant caused Amy.  Instead, all defendants would be liable for the entire outstanding amount, raising the possibility that a few well-heeled people among those convicted might contribute most, if not all, of the remaining restitution. Marsh said such an outcome would be just, and wealthy defendants could fight among themselves about who should pay what. "It's really about shifting the burden from the innocent victim to the people who are responsible," Marsh said.

Long-time readers know that I take a consequentialist view on most sentencing and punishment issues, and I strongly believe better consequences will prevail if all persons convicted of unlawfully downloading Amy's picture are all jointly liable for the full amount of her documented economic losses.  As the AP article suggests, if Amy wins then only the richest porn downloaders will end up paying her the most money in restitution.  But if DOJ's vague approach prevails, the richest porn downloaders will likely end up spending lots of money on lawyers in order to aggressively argue at sentencing that they should not have to pay much or any restitution to Amy or other victims.

More broadly, I actually think better consequences can and will ultimately prevail for future federal defendants convicted of unlawfully downloading child porn if Amy prevails in this case.  This is because I think, in light of the instructions of 18 USC 3553(a), federal judges would in the future be fully justified (and arguably even required) to generally impose a shorter federal prison sentence on a child porn defendant if and whenever that defendant is to be held jointly liable for the full amount of documented economic losses.  (Intriguingly, Doyle Randall Paroline himself got sentenced only to two years in prison, while the average downloader of child porn prosecuted in federal court these days gets a prison term of nearly a decade.)    

In her reporting and commentary on this issue (noted here and here), Emily Bazelon has rightly suggested that having child porn downloaders pay for their crimes through full restitution award (rather than through very lengthy prison terms) makes for better outcomes not only for victims but also for society.  As she has explained:

[J]oint and several liability ... works like this: Other victims following in Amy’s footsteps would target the rich child-pornography defendants.  Then it would be up to those men to find the others who are also legally responsible.  This would allow many more victims to recover than the alternative: The victims have to sue the defendants they can find one by one, while courts award restitution in what would probably be relatively small amounts.  If the Justice Department is really worried about fairness, it could create a compensation fund defendants could pay into for the benefit of more victims.

Money can make a huge difference for victims of sexual abuse.  For Amy [and other like victims], it has meant access to counseling and a safety net when they have struggled with school and work, as they both have at times.  Restitution makes far more sense than the enormously long prison sentences men often serve for collecting child pornography. Congress was right to see the value of restitution.  The Supreme Court should too.  And then lawmakers and judges should also recognize that the prison terms for possession of child pornography have become too harsh.

Because DOJ is not completely on Amy's side, and because some of the more conservative Justices have in the past expressed some constitutional concerns about some victims getting big awards in tort suits, I do not think it a certainty that Amy will prevail in this matter.  But because this is technically a statutory interpretation case, and because the briefs on Amy's side have done such an effective job highlighting reasons to think Congress would want Amy to prevail in this battle of equities, I think she has a pretty good chance to prevail.

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

January 20, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (41) | TrackBack

Tuesday, January 14, 2014

You be the federal judge: what sentence should the Beanie Babies billionaire get for tax evasion?

Beanie babyAs reported in this short AP article, today "the billionaire creator of Beanie Babies is in a Chicago federal courtroom for his sentencing on a tax evasion charge." Here is more:

H. Ty Warner could get up to five years in prison Tuesday for evading taxes on $25 million in income. The 69-year-old Warner was told when he pleaded guilty last year that he would have time at his sentencing to apologize for stashing money in Swiss bank accounts.

Warner's attorneys have asked the judge for a sentence of probation, not prison. They pointed to Warner's unhappy childhood and his charity work. Prosecutors say Warner should spend some time in prison, though they haven't recommend how much. They also say his philanthropy shouldn't be "a get-out-jail card."

Though perhaps not authorized by federal law, my proposed punishment for this billionaire would be a week in jail, a maximum (lifetime?) term of supervised release (for which he has to pay the costs), plus a fine of $100 million (four times the amount of income he tried to hide). According to Forbes here, Warner's net worth is 2.6 billion, and thus a $100 million fine for him is the equivalent of only a $100,000 fine for someone worth $2.5 million. Ergo, such a fine should clearly not be considered constitutionally excessive for Warner and it should better help deter rich folks from illegally trying to avoid paying their fair share.

Importantly, the maxed out term of supervised release is a big aspect of my proposed ideal sentence. Though some may think a few years in prison for a white-collar offender is more onerous than other punishments, I suspect a billionaire like Warner would be much more bothers by forever being subject to control of his liberty by probation officers. (I would also like to order Warner to a community service requirement of coming to my house each year to clear the dust off my kids' stuffed animals, but I am not sure I would be able to get away with such a term of service even if I was a federal judge.)

UPDATE:  This Reuters article indicates that Warner's sentencing outcome in federal court on Tuesday is resulting in him paying for his nonviolent crime in a lot of ways, but not with any time in prison: 

The billionaire creator of Beanie Babies, Ty Warner, will serve two years of probation, including mentoring high school students, following his guilty plea on a tax evasion charge, but no jail time, a federal judge ruled on Tuesday. Warner, 69, who pleaded guilty in October, told U.S. District Court Judge Charles Kocoras in Chicago that his crime was the "biggest mistake" of his life. Warner already had agreed to pay a civil penalty of nearly $53.6 million.

Ranked as the 209th richest American by Forbes with a listed net worth of $2.6 billion in 2013, Warner failed to report more than $24.4 million in income and evaded nearly $5.6 million in federal taxes from millions hidden in Swiss bank accounts, according to Chicago prosecutors.

Prosecutors had argued that Warner should serve time in jail given the extent of the cover-up, and federal guidelines called for up to five years in prison. "I am truly sorry," said the slightly-built Warner, who wore headphones to compensate for hearing loss. He told Kocoras the letters of support he received "made my feelings of shame and embarrassment that much more unbearable."

Kocoras cited Warner's many acts of charity before imposing probation rather than prison. Kocoras said he had reviewed letters from people helped by the billionaire, including a woman with a kidney disease Warner had stopped to ask for directions. After learning of her condition, Warner paid for her treatment. "Society will be best served by allowing him to continue his good works," Kocoras said.

Warner was sentenced to at least 500 hours of community service, which will include mentoring students at Leo High School, a Catholic boys' school in a poor, mostly African-American neighborhood in Chicago....

The federal charge to which Warner pled guilty alleged that, in 2002, Warner earned more than $3.1 million through investments held in his UBS account, but did not tell his accountants and failed to report it on his tax form.

January 14, 2014 in Fines, Restitution and Other Economic Sanctions, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, January 07, 2014

"Should We Let Prisoners Upgrade Their Prison Cells?"

9515_luxury_prison_by_iMoo_pupuDesign-1The title of this post is the headline of this interesting report from the OZY media resource. Here are excerpts:

Would prison be so bad if your cell was spacious and included a private bathroom, kitchen and cable TV? These are the accommodations for some prisoners at San Pedro prison in La Paz, Bolivia. But luxury isn’t free: For about $1,000-1,500, an inmate can purchase a high-class cell for the duration of his or her sentence.

San Pedro is divided into eight sections ranging from shared small cells with risks of stabbings at night to the opulent cells that have access to billiard tables and fresh juice stands. Every person must buy or rent a cell, no matter the quality, and many inmates have jobs as hairdressers, laundry staff, food stall operators or TV repairmen.

Does the idea of paying for better prison accommodations sound ludicrous? Would you bet this could never happen in the U.S.? Think again.

In California there are multiple jails with “pay-to-stay” programs where inmates can pay from $75-155 a day for a private cell in quiet areas away from violent offenders, and they are occasionally allowed to bring in an iPod or computer for entertainment. They must be approved for the program and their crimes are usually minor offenses. The ACLU is not a fan, calling the program a “jail for the rich.”

Supporters of pay-to-stay say they benefit the cities where they are located by providing revenue. For example, if the Fremont jail — which spends $8.35 a day on each inmate — houses 16 inmates for two nights per week a year, the city would net a profit of about $244,000. One immediate question is whether cities should make a profit off of prisoners. Another question has to do with equality.

Two people who commit the same crime but end up in different facilities depending on their ability to pay isn’t exactly equitable, but the American incarceration system doesn’t have the best record when it comes to treating the poor and rich equally....

But what if you weren’t allowed to use Daddy’s dollars to secure better living conditions while serving time for a DUI? What if, instead, you started out the same as every other inmate, regardless of personal wealth or outside resources?

Could a fairer option be that you start your sentence with a financial blank slate, earn money by taking jobs inside the prison or jail and then apply your self-earned dollars to book a nicer and more comfortable living situation? Should prisoners be allowed to pay to upgrade the quality of their cells, or should the nature of their crime be the sole factor in how they live out their prison terms?

January 7, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, December 05, 2013

Yet another effective review of the child porn restitution challenges facing SCOTUS

I have already blogged some previews of the fascinating Supreme Court case of Paroline v. United States even though oral argument is still six weeks away because the issues strike me as so interesting and dynamic.  (The parties' main briefs and now lots of amicus briefs are now available via SCOTUSblog on this Paroline case page.)  And I suspect we are seeing other notable coverage of the case already because lots of others are also intrigued by the issues and arguments now before the Justices in Paroline.  The latest example comes via Emily Bazelon here at Slate, and it is headlined "Paying Amy: Doyle Paroline owned two pornographic pictures of an 8-year-old girl. How much should he have to pay?" Here are a few excerpts (with cites to some of the filed briefs):

In January, the Supreme Court will hear the appeal of Doyle Randall Paroline, who was caught with two pictures of Amy among 280 illegal images and was found liable by the U.S. Court of Appeals for the 5th Circuit for the full amount of the restitution Amy, who is now 24, has claimed. The 5th Circuit said it was up to Paroline — not Amy — to find the other men who could also be on the hook for restitution and go after them for contributions. The legal theory is called joint and several liability. It’s the way courts deal with pollution cases in which a bunch of defendants all dump toxic waste into a single lake. A plaintiff sues one wealthy company for all the damages, and then that defendant has to sue other companies to share the costs.

Is this how Congress intended victims to recover from sex offenders when it passed [the Violence Against Women Act] in 1994?...

Of the eight appeals courts that have heard challenges by men like Paroline, only the 5th Circuit agreed entirely with Amy’s theory of recovery.  The Department of Justice also disagrees with a key to it, saying that joint and several liability doesn’t apply in these cases.  But a bipartisan group of U.S. Senators have filed a brief before the Supreme Court arguing that Congress wanted to give Amy an easy path to restitution. VAWA could “hardly be clearer,” say the senators (roll call: Orrin Hatch of Utah, Dianne Feinstein of California, Charles Grassley of Iowa, Edward Markey of Massachusetts, John McCain of Arizona, Patty Murray of Washington, and Charles Schumer of New York)....

Five appeals courts have said they doubted that victims like Amy can win more than nominal restitution.  Two others let her keep awards of only $10,000 or less. She has been able to collect larger amounts only from men who have agreed to settle or waived their right to appeal.  The senators, though, say that all these courts got it wrong and the 5th Circuit got it right.  They quote Vice President Joe Biden, chief architect of the VAWA, who called it “the most victim-friendly bill [the Senate] ever passed.”  And they provide an important piece of history about how VAWA was drafted....

Here’s the clearest way to think about how and why Amy and other victims like her should win restitution.  Their trauma can’t be neatly parceled out among the individual men convicted for possessing their pictures.  But the harm is crystal clear in the aggregate.  And so Paroline and other defendants shouldn’t be relieved of their obligation to pay “simply because Amy would continue to suffer harm if there were one less child-pornography consumer in the world,” as the Department of Justice puts it. This makes sense to me: You can’t let each viewer off the hook because he is merely one small part of the whole.

How much does each viewer who is convicted have to pay?  The Department of Justice argues — vaguely and without any basis I can see in VAWA — that each defendant should pay restitution in an amount greater than zero but less than the whole.  Courts should use their discretion to pick some place in the middle, the government says.  It rejects the idea of joint and several liability as “practically unworkable” and “unduly harsh.”

If Paroline had to pay millions of dollars for his two pictures of Amy, then yes, that would be unfair.  But that’s not how joint and several liability works. It works like this: Other victims following in Amy’s footsteps would target the rich child-pornography defendants.  Then it would be up to those men to find the others who are also legally responsible.  This would allow many more victims to recover than the alternative: The victims have to sue the defendants they can find one by one, while courts award restitution in what would probably be relatively small amounts.  If the Justice Department is really worried about fairness, it could create a compensation fund defendants could pay into for the benefit of more victims.

Money can make a huge difference for victims of sexual abuse.  For Amy and Nicole, it has meant access to counseling and a safety net when they have struggled with school and work, as they both have at times.  Restitution makes far more sense than the enormously long prison sentences men often serve for collecting child pornography. Congress was right to see the value of restitution.  The Supreme Court should too.  And then lawmakers and judges should also recognize that the prison terms for possession of child pornography have become too harsh.

A few prior posts on Paroline:

December 5, 2013 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Friday, November 22, 2013

Gearing up for Paroline with a short "Child Pornography Restitution Update"

Through oral argument in the fascinating Supreme Court case of Paroline v. United States is still a couple months away, it is not too early to start thinking about the range of challenging issues restitution sentences for child porn downloading victims presents for the Justices.  One way to gear up, of course, is to review the parties opening briefs, all of which are now in and are available via SCOTUSblog on this Paroline case page.

Another effective way to start gearing up would be to read this short piece available now on SSRN titled simply ""Child Pornography Restitution Update" and authored by Mary Leary and James Marsh (who represents a victim seeking restitution). Here is the abstract:

This article discusses the issue of restitution for victims of child pornography cases. It specifically explores the legal background to this issue, relevant court opinions, and implicated statutes (18 U.S.C. §§ 2259; 3771) regarding the ability of child pornography victims to obtain restitution from those who possessed child pornography images, also known as images of child sexual abuse. The article addresses the current circuit split and pending Supreme Court case, Paroline v. United States. In addition to an analysis of the judicial opinions, this piece also discusses several policy initiatives available to address the issue.

November 22, 2013 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack