Sentencing Law and Policy

A final take on a record-setting federal corruption sentence

This Roll Call article, whic is headlined "Jefferson’s Sentence Is a Record-Setter," provides some post-game commentary on this past Friday's federal sentencing of William Jefferson.  Here are a few highlights:

A freezer full of cash made ex-Rep. William Jefferson a national punch line, and a federal judge on Friday made him a record-holder: The 13-year prison sentence given to the Louisiana Democrat is the longest ever handed down to a former Member of Congress....

Ex-Rep. Duke Cunningham (R-Calif.), who pleaded guilty in March 2006 to accepting more than $2.4 million in bribes from defense contractors, as well as tax evasion and fraud, is serving an eight-year, four-month sentence in a federal penitentiary in Tucson, Ariz.  Prior to Jefferson’s sentencing, Cunningham had the distinction of receiving the longest prison term for a former lawmaker. He is scheduled to be released in June 2013.

At least three other former House Members have also completed their terms of incarceration in federal prisons in the past year or so, including ex-Reps. Jim Traficant (D-Ohio), Bob Ney (R-Ohio) and Frank Ballance (D-N.C.)....

In court documents, [defense lawyers] cited a litany of other previously incarcerated lawmakers, part of an effort to limit Jefferson’s term to no more than 10 years.... [But] federal prosecutors recommended Jefferson receive a prison term of up to 33 years, asserting his “crimes against the people of the United States were exceptional in their sheer number, length, and breadth.”

In addition to all its political dimensions, this case also spotlights the distorting nature of the federal sentencing guidelines and post-Booker sentencing statistics.  Though Jefferson received a record-setting long sentence and is now scheduled to be incarcerated until he turns 75-years-old, his sentence will be recorded as a below-guideline Booker variance in which the judge gave a sentence less than half as long as what was recommended by the guidelines.  In other words, in a post-Booker world with inflated federal sentencing guidelines, even a record-long sentence is coded as very lenient.

Ballon Boy parents cut plea deals providing for probation sentence

As detailed in this new report from CBS News, "Richard and Mayumi Heene will plead guilty Friday to charges stemming from last month's Balloon Boy hoax, the couple's lawyer said."  Here are more of the specifics:

Mayumi Heene will plead guilty to falsely reporting to authorities, a misdemeanor.  Richard Heene's charge — attempting to influence a public official — is a felony.  The deal stipulates a probation sentence for both charges. The deal avoids more serious felony charges against Mayumi Heene, such as perjury, that could result in her deportation to Japan.

"Upon reviewing the evidence, arguably, Mayumi could have possibly ended up being deported and Richard could have proceeded to trial and had a good chance at an acquittal," lawyer David Lane said.  "This, however, would have put the family at grave risk of seeing a loving, caring, compassionate wife and mother ripped from the family and deported. That was not an acceptable risk, thus these pleas."

CBS News legal analyst Andrew Cohen said the deal "makes sense for both sides, especially given the cost of a trial and the risk that the mother involved here would have been deported and separated from her children. So I’m not surprised at all that this ends with a whimper and not a bang."  Cohen notes the judge doesn't have to accept the plea deal and could alter its terms.

Any and all wanna-be sentencing judges among readers are welcomed and encouraged to indicate ad explain whether and why they would accept or reject these plea deals.

Prosecutors seeking long prison term for ex-Rep. William Jefferson

As detailed in lots of media coverage, federal prosecutors are seeking a long prison term for former US Representative William Jefferson following his bribery convictions.  Yet, as these different headlines from different press sources reveal, it is not perfectly clear how long a prison term prosecutors are seeking:

• This AP piece is headlined "Govt asks 27 years in prison for ex-Rep. Jefferson
• This Politico piece is headlined "Feds seek 30 year sentence for William Jefferson"
• This BLT piece is headlined "Prosecutors Want 33 Years for Jefferson"

I suspect this variation in reporting is a result of the government's guidelines, which prosecutors are likely stressing because they produce a range of 324-405 months of recommended imprisonment.

The piece from The BLT reports on how Jefferson's lawyers are countering the prosecution's sentencing recommendations:

Jefferson’s lawyers issued their own sentencing memorandum ... asking for a sentence of less than 10 years.  The memo notes that no member of Congress has ever been sentenced to more than 100 months in prison, and that other sentences in the Jefferson investigation have been less than a decade.

Chief Justice apparently taking command in the Graham and Sullivan juve LWOP cases

This early report from SCOTUSblog, which is titled "Analysis: The Chief leads on juvenile sentences?," concerning on this morning's arguments in the big juve LWOP cases argued this morning heightens my expectation and hope that we could get some interestingly different line-ups in the decisions in these cases.  Here is the start of Lyle Denniston's analysis:

Chief Justice John G. Roberts, Jr., made a strong — and repeated — effort on Monday to recruit a majority of the Supreme Court in favor of giving juveniles more chance to use their age to challenge life-without-parole prison terms, as an alternative to a flat constitutional bar against ever imposing that sentence.  With a number of Justices wondering where to draw an age line if the categorical approach were used, the Chief Justice’s initiative seemed to have a good chance of gaining adherents as the Court heard Graham v. Florida (08-7412) and Sullivan v. Florida (08-7621).

Interesting.....!  And more commentary on this front to follow when I get a chance to consume the transcripts in these cases late tonight.

A few older CJ Roberts-related posts and some newer posts on the Graham and Sullivan cases:

• CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
• CJ Roberts and sentencing law: the virtues (and vices?) of consensus
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Should religious doctrines influence Eighth Amendment jurisprudence?
• Watching and wondering about the three SCOTUS newbies in Graham and Sullivan juve LWOP cases

Watching and wondering about the three SCOTUS newbies in Graham and Sullivan juve LWOP cases

As mentioned in this recent post, I am expecting (or at least hoping) that the big Graham and Sullivan SCOTUS cases to be argued this morning will not simply turn on Justice Kennedy as a swing voter in another 5-4 split.  I make this prediction in part because I am expecting (or at least hoping) that the three most recent additions to the Supreme Court could provide some new perspectives and some unexpected excitement in these cases.

I suspect lots of folks will be watching closely during Graham and Sullivan the newest member of the Supreme Court, Justice Sotomayor, because these juve LWOP cases are probably the highest profile constitutional criminal cases that SCOTUS will consider this year.  And, while watching Justice Sotomayor, I will be wondering especially about whether she is uniquely attentive to and uniquely concerned about the racial, ethnic and class disparities that often play a role in harsh juve sentencing realities in many states.

But, when I get a chance to read the Graham and Sullivan transcripts, I am going to be especially watching for any "tells" from Chief Justice Roberts and Justice Alito.  In most major death penalty and police practice cases, CJ Robers and Justice Alito have tended to favor broad government power (especially Justice Alito).  But the issues in Graham and Sullivan do not arise in settings in which prior rulings by the Warren and Burger courts have previously curtailed government authority.  Rather, Graham and Sullivan raise hard (and conceptually under-developed) questions about how federal courts are supposed to give meaning and content to the Eighth Amendment's prohibition on "cruel and unusual punishments" in non-capital settings.  Though CJ Robers and Justice Alito may not bring new jurisprudential perspectives in these cases, I am sure hoping they might.

Of course, SCOTUS watchers surely should keep an eye on the other six Justices in Graham and Sullivan.  The veryyoung age at which Joe Sullivan was given an LWOP sentence might even impact how Justices Scalia and Thomas look at the case, and the repeat and serious nature of Terrence Graham's crimes might impact how Justices Breyer, Ginsburg and Stevens sort through these issues.  And, Justice Kennedy could still be a key "swinger" in both Graham and Sullivan despite my speculation and hope that these cases do not fully turn on his constitutional instincts.  Indeed, Justice Kennedy may be the most interesting to watch because he authored the two most pertinent precedents in Roper and Harmelin.

I could go on and on and on about these cases because they implicate are sooooo many interesting matters of constitutional jurisprudence and sentencing policy.  (For example, I could do a number of posts simply concerning the decision by Obama's Justice Department to sit on the sidelines for this critically important issue).  But, upon completing this post, I think I am going to await having the chance to read the argument transcripts before saying more about Graham and Sullivan.

A few different older and newer posts on issues related to the Graham and Sullivan cases:

• Should we thank new Justices Alito and Sotomayor for all the big criminal law SCOTUS action?
•  Some very early, very brief sentencing reflections on Judge Sotomayor
• Notable background parallels between Judge Sotomayor and Justice Alito
• CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
• Does Roper suggest young juve LWOP is unconstitutional?
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• Should religious doctrines influence Eighth Amendment jurisprudence?
• UK gives life with parole for terrorists convicted of airline bomb plot
• In praise of Texas justice (and shame on the press and public policy activists) on juve LWOP
• What might (and should) DOJ and other potential amici say about Graham and Sullivan?
• Infamous "Lipstick Killer" case provides historical perspective on juve sentencing debate

"Lighter sentence for murderer with 'bad genes'"

The title of this post is the headline of this interesting sentencing story coming from the publication Nature, which reports on these sentencing developments in Italy:

An Italian court has cut the sentence given to a convicted murderer by a year because he has genes linked to violent behaviour — the first time that behavioural genetics has affected a sentence passed by a European court.  But researchers contacted by Nature have questioned whether the decision was based on sound science.

Abdelmalek Bayout, an Algerian citizen who has lived in Italy since 1993, admitted in 2007 to stabbing and killing Walter Felipe Novoa Perez on 10 March.  Perez, a Colombian living in Italy, had, according to Bayout's testimony, insulted him over the kohl eye make-up the Algerian was wearing.  Bayout, a Muslim, claims he wore the make-up for religious reasons.

During the trial, Bayout's lawyer, Tania Cattarossi, asked the court to take into account that her client may have been mentally ill at the time of the murder.  After considering three psychiatric reports, the judge, Paolo Alessio Vernì, partially agreed that Bayout's psychiatric illness was a mitigating factor and sentenced him to 9 years and 2 months in prison — around three years less than Bayout would have received had he been deemed to be of sound mind.

But at an appeal hearing in May this year, Pier Valerio Reinotti, a judge of the Court of Appeal in Trieste, asked forensic scientists for a new independent psychiatric report to decide whether he should commute the sentence further.

For the new report, Pietro Pietrini, a molecular neuroscientist at Italy's University of Pisa, and Giuseppe Sartori, a cognitive neuroscientist at the University of Padova, conducted a series of tests and found abnormalities in brain-imaging scans and in five genes that have been linked to violent behaviour — including the gene encoding the neurotransmitter-metabolizing enzyme monoamine oxidase A (MAOA).  A 2002 study led by Terrie Moffitt, a geneticist at the Institute of Psychiatry, King's College, London, had found low levels of MAOA expression to be associated with aggressiveness and criminal conduct of young boys raised in abusive environments.

In the report, Pietrini and Sartori concluded that Bayout's genes would make him more prone to behaving violently if provoked.  "There's increasing evidence that some genes together with a particular environmental insult may predispose people to certain behaviour," says Pietrini.

On the basis of the genetic tests, Judge Reinotti docked a further year off the defendant's sentence, arguing that the defendant's genes "would make him particularly aggressive in stressful situations".  Giving his verdict, Reinotti said he had found the MAOA evidence particularly compelling....

But forensic scientists and geneticists contacted by Nature question whether the scientific evidence supports the conclusions reached in the psychiatric report presented to Judge Reinotti.  "We don't know how the whole genome functions and the [possible] protective effects of other genes," says Giuseppe Novelli, a forensic scientist and geneticist at the University Tor Vergata in Rome.  Tests for single genes such as MAOA are "useless and expensive", he adds.

Florida state judge reduces homicide sentence based on "battered spouse syndrome"

This notable local sentencing story, which is headlined "Davie woman gets five-year sentence for fatal shooting: Woman gets 5 years for killing man who abused her," reports on a sentencing reduction a judge granted based on "battered spouse syndrome."  Here are the details:

Physically, sexually and emotionally dominated by a hulking man who gave her drugs in exchange for sex, Lisa Marie Romero's breaking point came when he threatened her three children's safety.

Romero, 39, shot Frank Don Alvarez, 61, in the back of the head with a rifle and left him dead, face down in an industrial area north of Davie Boulevard near Interstate 95, on Nov. 17, 2006.

Finding that Romero suffered from battered spouse syndrome, Broward Circuit Judge Ilona Holmes on Thursday cast aside sentencing guidelines that called for a 10- to 30-year sentence and sent Romero to prison for five years.

Incensed by the light sentence, Alvarez's son, John, 44, stormed out of the courtroom. "Put it this way, I will get my justice when she gets out of prison," he said, pacing in the courthouse hallway. "She will find out."

He had not yet heard that the judge also gave Romero credit for the nearly three years she had spent in jail awaiting trial. Prison will be followed by 10 years of probation.

Influenced by opinions from two psychologists who found that Alvarez abused Romero, state prosecutor Al Ribas downgraded a charge of first-degree murder to manslaughter with a firearm. In September, Romero pleaded guilty to that charge.

How should positive behavior in prison impact resentencings after Booker?

This local article about an interesting sentencing hearing spotlights a number of challenging conceptual issues that surround federal resentencings in the post-Booker world.  The piece caught my eye due to its headline, "Victim helps press for longer sentence for nurse in 'nude therapy' case," but these snippets spotlight the array of legal issues this case presents:

Linda Kaufman, a nurse convicted of defrauding and abusing the mentally ill residents of the Newton home she ran with her husband, Arlan, told a federal judge she has been a positive influence on fellow inmates during her four years in prison.   But a former resident of the home said Kaufman still needs to be held accountable for what happened there.

Not because she "married a monster," said Nancy Jensen, but because Kaufman was a registered nurse.   "She was to do no harm, and she was to advocate for the people that she was to help," Jensen said.

The statements came Tuesday in the courtroom of U.S. District Judge Monti Belot, who has been required by the 10th Circuit Court of Appeals to reconsider factors that could lengthen the seven-year prison sentence he originally imposed on Kaufman. After a two-hour hearing, Belot took the matter under advisement and said he'd make his ruling in a written memorandum. He didn't say when he'd issue it.

Linda Kaufman, 66, and Arlan Kaufman were convicted in November 2006 of enslaving the home's residents, forcing them to work naked and perform sex acts. Belot gave Arlan Kaufman a 30-year sentence and Linda Kaufman a seven-year sentence.

The appeals court said Belot should reconsider Linda Kaufman's sentence because she was alleged to have used a stun gun, which the government said was a dangerous weapon; because the offenses involved a large number of vulnerable victims; and because she obstructed justice by interfering with a federal audit and investigation of the home.

The government has recommended a sentence of at least 20 years. Kaufman's attorney, Steve Gradert, asked Belot to reimpose his original sentence. That sentence was below sentencing guidelines. Belot had shown her leniency, believing she was manipulated by her husband....

Jensen, in an emotional statement, said the Kaufmans "did horrible things to us in the name of mental health and in the name of taking care of clients." Linda Kaufman was a nurse who was responsible for taking care of people with mental illnesses, she said. "The harm that she did is not easily seen because it was emotional and affected our behavior and our belief systems," Jensen said. "She used our diagnosis to blame us and abuse us. So, therefore, Linda knew how to hide the harm she caused us and blamed us for."...

Linda Kaufman told Belot that during her confinement she had done a lot of volunteer and self-improvement activities.   She had coexisted peacefully with other inmates, had no disciplinary reports, worked faithfully at her prison jobs and received high scores for her job performance and cooperation, she said. She also participated in continuing education and religious classes. She said she won a humanitarian award last year for her work with inmates and for her quilting.

Kaufman said if she had another chance, she "would do many things differently," but she was looking to the future. "I long to join, and re-join, my grandchildren as soon as possible," she said.

Important sentencing issues ranging from co-defendant influence and disparity to the impact of the victim's testimony to the significance of the defendant's status as a nurse are all richly presented in this notable case.  But, as highlighted by the question in the title of this post, I am especially interested to hear views on whether readers think Linda Kaufman's positive behavior while incarcerated can (or should or must) be a significant consideration in her resentencing in light of Booker and the terms of 3553(a).

ABAJ coverage of SCOTUS cases on constitutionality of juve LWOP

In the November 2009 issue of ABA Journal magazine includes this article previewing the two juve LWOP cases to be heard by the Supreme Court next month.  The piece is headlined, "Adult Time for Adult Crimes: Is life without parole unconstitutional for juveniles?", and here are excerpts:

In a pair of cases from Florida, Graham v. Florida and Sullivan v. Florida, the court must determine whether Roper’s reasoning — that juvenile defendants are fundamentally different from adult defendants — extends from the death penalty to life without parole.  Arguments are scheduled for Nov. 9.

“Life without parole can be considered as death in prison and the penultimate sanction,” says Florida State University law professor Wayne A. Logan, who has written on juvenile life without parole.  “The court granting cert in two cases signals its concern about ju­venile justice, which is a welcome development.  Life without parole has become a live issue in the wake of the Roper case.”...

Numerous amicus briefs have been filed on behalf of Sullivan and Graham seeking to persuade the court to extinguish LWOP sentences for juveniles.  One of the more compelling comes from a group of former juvenile offenders who later achieved success, including actor Charles S. Dutton and former U.S. Sen. Alan K. Simpson.  Dutton stabbed a person to death in a street fight at age 17, while Simpson committed arson on federal property, punched a cop and — in his own words — “was a monster.”

“We tried to present the views of several individuals who had been involved in criminal offenses when they were juveniles — some of whom may have been eligible for LWOP under particular state laws — and to explain what that kind of severe sentence would have meant for them,” says Washington, D.C.-based attorney David W. DeBruin, who filed the brief.  “The individuals described in our brief had hope because they had the prospect of release. Knowing that they had a chance, they used the time in prison to resolve to do things differently and to obtain skills — and eventually they made outstanding contributions to society.”...

“Roper was wrongly decided, but it is manageable if contained on the death penalty side of the firebreak,” says Kent S. Scheidegger, legal director of the Criminal Justice Legal Foundation, the Sacramento, Calif., group that supports crime victims.  But, he adds, Roper “should not be extended at all.  These are sentencing policy decisions to be made by the people of the several states through the democratic process.  Whether one agrees or disagrees with the decision, it is the people’s to make.  Nothing in the Constitution assigns that decision to the federal judiciary.”

But experts agree on the importance of the cases.  “There is a tremendous amount at stake in these cases when you consider that life imprisonment without the possibility of parole is almost equivalent to a death sentence and gives the offender no chance of relief or release or hope,” DeBruin says.

Some recent posts on juve LWOP and the Graham and Sullivan cases:

• Minnesota Supreme Court rejects constitutional arguments against LWOP sentence for 17-year-old murderer
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Does Roper suggest young juve LWOP is unconstitutional?
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• New Heritage Foundation report defending juve LWOP sentences
• An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases
• Should religious doctrines influence Eighth Amendment jurisprudence?

UK advocacy group urges motherhood as a sentencing consideration

This new BBC piece, which headlined "Courts 'should consider mothers'," reports on how an advocacy group across the pond is calling for consideration of family values at sentencing:

Magistrates and judges in Wales should take account of whether women are mothers when sentencing them, says a children's charity. Barnado's Cymru said courts "need to look at alternatives to custodial sentences" when dealing with mothers. They should know more about the impact of a sentence on a child, it says.

Laura Tranter said a woman should still face the full range of sentencing "but whether or not she needs to lose ties with her children is another issue". The children's charity said children in Wales who have a parent in prison need better support.

Its report, Every Night You Cry, says that failing to address their needs has a negative impact on their behaviour, claiming that "almost two-thirds of boys with a convicted father go on to offend" if no interventions are made. The charity says there are an estimated 160,000 children in the UK who have a parent in prison, more than twice the number of children in care and six times the number of children on the child protection register.

Should there be an age floor for when a sex offense requires registration?

In the Graham and Sullivan cases, the Supreme Court will be struggling with whether and how to set a constitutional floor on the age at which an offender can be given an LWOP sentence.  This local article, headlined "Group opposes sex-offender registry for youths," spotlights the question of whether there ought also be a floor for when a young sex offender is subject to registration requirements. Here are excerpts from the piece, which also discusses other aspects of state resistance to federal sex offender registration provisions:

Legislation that requires states to publish the names and photos of minors who have been convicted of sex-related offenses in a nationwide public registry is being discouraged by a Washington, D.C.-based group.

Some states already include minors as young as 14 in their own statewide sex-offender registries, but legislation known as the Adam Walsh Child Protection and Safety Act of 2006 is calling for all states to take up the practice for a national registry.  States that don't comply with the act risk a decrease in federal criminal justice funding.  Yet, only one state and one tribe have complied completely since Congress the act became law in 2006.

Local lawyers see a problem with lumping minors with adults in a public sex offender registry. "We're still hoping that part of the act doesn't get passed," said Chris Gardner, chief deputy public defender in San Bernardino County's Human Services Division.

Research does not support the stance that a minor convicted as a sex offender is going to do the same thing as an adult, Gardner said. Studies show the opposite, and the vast majority of kids don't reoffend, he said.  "If a kid's crime is tried in Juvenile Court, where the idea is rehabilitation, it doesn't make sense for there to be any kind of long-standing history or sex registry," Gardner said.

Justice Policy Institute recently reissued a report that details the harm that public registries have on minors, a demographic where criminal justice usually aims for rehabilitation. "It's extremely detrimental to the youth," said Nastassia Walsh, a research associate at JPI.  "It isn't proven to improve community safety at all. It can really harm a kid's chances of having a `normal life."'...

Other states have cited numerous reasons for not complying, including the cost and the need for more equipment, resources and personnel.  A Congressional Budget Office analysis from December 2005 reported the act to cost $1.5billion to enact between 2006 and 2011.

Besides cost, California cited other reasons for not complying with the act: statutory barriers, juvenile privacy issues and constitutional privacy protections, according to an April survey conducted by SEARCH, a national consortium for justice information and statistics.

The National Center for Missing and Exploited Children, which is behind the Adam Walsh Act, estimates there were about 670,000 registered sex offenders in the United States.  But about 100,000 are lost in the system....

Prosecutors say only a limited number of sex-related juvenile crimes in California even qualify for a stay in the Department of Juvenile Justice and publishing in a public registry.

Karen Bell, a deputy district attorney who handles juvenile offenses in San Bernardino County, said she didn't anticipate there would be much support in the state for the labeling of minors through a public registry. "I think the reaction of that of the Legislature of California, and certainly the bench and the bar would be very much against it," Bell said.

Thoughtful reflections on juve LWOP from Minnesota

As noted in this post, last week the Minnesota Supreme Court rejected constitutional arguments against an LWOP sentence for 17-year-old murderer.  That ruling has prompted this thoughtful commentary, headlined "The kids are not alright: Minnesota minors who kill can go to jail for life with no chance of getting out." Here are snippets:

Last Thursday, the Minnesota Supreme Court upheld Martin’s sentence, saying it was not a violation of the federal or state constitution. Minnesota’s decision comes at a critical time for judicial consideration of juvenile sentences. On Nov. 9, the United States Supreme Court is scheduled to hear oral arguments on whether sentencing juveniles to life without parole for non-homicidal crimes is unconstitutional. To oversimplify things, the decision faced by the courts is whether life sentences meted out to offending minors violates the Eighth Amendment to the U.S. Constitution, which bans “cruel and unusual punishments.” Minnesota’s state constitution, which was also considered in Martin’s case, however, bans “cruel or unusual punishment.”

Before jumping to any conclusions, consider how important some of the issues involved are. These kids have been convicted of committing horrible crimes. You don’t get life without parole for vandalizing the neighbor’s garage....

I was talking about these cases with my friend and classmate Rob Crist, who I think summed things up perfectly with a question: “What do you do with a kid like that?” For some states, the solution is to lock the kids up for the rest of their lives. “The juvenile system has been utterly incapable of doing anything with Mr. Sullivan, even though Sullivan had been given opportunity after opportunity to upright himself and take advantage of the second and third chances he’s been given,” the prosecution’s brief states, quoting the trial judge.

Yet, despite the horror of the acts themselves, many argue that the kids deserve a second chance on account of their age. Sullivan’s defense team’s brief before the Supreme Court lists all the sociopsychological reasons against harsh sentences for children....

Any time a juvenile commits a violent crime, it’s already a tragedy. I can’t help but think that a child like Joseph Sullivan doesn’t do what he did unless a long line of adults — people like his teachers, parents or others in his surrounding community — had failed to teach him responsibility all along.

Somehow, the world has gotten to the point where kids are killers and rapists long before they can graduate from high school. As horrible as this is, I’m skeptical that the best way to deal with our youngest criminal offenders is to lock them up and throw away the key.

Some recent posts on juve LWOP and the Graham and Sullivan cases:

• Minnesota Supreme Court rejects constitutional arguments against LWOP sentence for 17-year-old murderer
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Does Roper suggest young juve LWOP is unconstitutional?
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• New Heritage Foundation report defending juve LWOP sentences
• An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases
• Should religious doctrines influence Eighth Amendment jurisprudence?

Interesting local coverage of "sexting" problem

I just notices a pair of new articles in the Columbus Ledger-Enquirer reporting on the modern social problem of "sexting." The piece, available here and here, are headlined "Teens often don't grasp the consequences of sexting" and "Criminal charges from sexting can be heavy."  Here is the sentencing part of the story from second article, which describes parts of applicable Georgia law:

Sexting is a crime. When those photographs involve a minor and are of a sexual nature, they can be considered child pornography and lead to criminal prosecution.

Anyone caught possessing, distributing or manufacturing such pictures — even if they themselves are under age — can be charged with a felony that, depending on the circumstances, could carry a prison term ranging from 12 months to 20 years in prison.  Anyone convicted of these crimes, which include child molestation, possession/distribution of child pornography and enticing a minor will also be labeled as a sex offender.

“All of which are felonies,” said Sgt. Debra Bohannon with the Sex Crimes Unit of the Columbus Police Department. “That’s not even something these kids or their parents are thinking about. But they should.”

Sexual exploitation of a child, among the most common charges that Bohannon and the Sex Crimes Unit pursues in cases that might be defined as sexting, carries a penalty of no less than five and no more than 20 years in prison. “It depends on the totality of the crime,” Bohannon said. “It depends on the age of the sender, the age of the receiver, what was sent and how much was in their possession. There are a variety of circumstances that play into the exact charges that are filed.”

While specific numbers are difficult to calculate given the nature of sexting, Bohannon said the Sex Crimes Unit has been called in to investigate “numerous” cases involving what would be considered child pornography that’s been either captured or distributed by cell phones.

Her most recent case took place in mid-August and involved two 12-year-olds. No charges were filed. “A majority of the kids we see are in middle school,” Bohannon said. “We see some in high school, but most are sixth-, seventh- and eighth-grade kids. And I’d be willing to say that a high, high percentage of the actual cases are handled in-house, either by the schools or by their parents.

Some related "sexting" posts:

• The many fascinating legal and social issues swirling around "sexting"
• Federal district judge enjoins controversial state sexting prosecution
• Ohio ACLU writes to local lawmakers and prosecutors about sexting
• "Ohio judge sentences 2 teens for sexting"
• Some of the latest "sexting" news and notes
• Vermont legislature considering "sexting exception" to child porn prohibitions
• Pennsylvania town struggling with a "rash of sexting incidents" 

Conviction in Astor family case raises classic questions about how age should impact sentencing

This new article from the New York Times, which is headlined "Weighing Prison When the Convict Is Over 80," documents how a high-profile state conviction in New York is raising hard questions concerning how a defendant's age should impact sentencing outcomes.  Here is how the piece starts:

In a case involving an 87-year-old man convicted of racketeering, a federal judge in Manhattan rejected a plea for leniency last year, giving the man a five-year sentence. The judge in this case had a special perspective: He was 84 himself.

But in another case this spring, an 85-year-old man who admitted providing sensitive military information to Israel was spared prison by a judge, who cited the man’s advanced age and said sending him to prison would “serve no purpose.”

In the 12 days they spent deciding the fate of Brooke Astor’s son, Anthony D. Marshall, the jurors said they did not make much of his age.  But now that Mr. Marshall, who is 85 and had quadruple bypass surgery last year, has been found guilty of a variety of charges, his age can be expected to have some bearing on his sentence — though it almost certainly will not serve as a get-out-of-jail-free card.

Minnesota Supreme Court rejects constitutional arguments against LWOP sentence for 17-year-old murderer

A helpful reader forwarded to me today's Minnesota Supreme Court decision in State v. Martin, No. A07-1262 (Minn. Oct. 8, 2009) (available here).  The official syllabus in the Martin case describes one of its holdings in this way: "The punishment of life in prison without the possibility of release for a juvenile who was 17 years of age when he committed the offense was not cruel or unusual punishment in violation of the United States or Minnesota Constitutions." 

The body of the opinion details that the Minnesota Supreme Court in 1999 upheld a juve LWOP sentence against a constitutional challenge, and it also notes that the defendant in this case "was only six weeks from his eighteenth birthday when he shot" and killed a rival gang member.  After reviewing the constitutional arguments made by the defendant, the Minnesota Supreme Court concludes that "Martin has failed to carry his heavy burden of demonstrating a compelling reason to overturn [our prior ruling].  Nor did Martin make any showing that this punishment was disproportionate as applied to him. We hold that the punishment ... is not unconstitutional as applied to Martin."

Justice Scalia again seems to be the federal defendant's best friend in ACCA argument

Anyone who really follows the Supreme Court's criminal justice work should already know that the usual, knee-jerk labels and expectations concerning liberal/conservative voting patterns, though often holding true in capital cases and police practice cases, almost never hold true in the context of constitutional trial procedure and federal criminal statutory interpretation cases.  The latest data point on this front can be found in the full transcript of oral argument in Johnson v. US (08-6925), which is available at this link. 

Johnson is yet another Supreme Court case requiring the Justices to try to make sense of which prior state crimes suffice to trigger the 15-year mandatory minimum sentencing terms of the Armed Career Criminal Act (ACCA).  Though not an easy read, the Johnson transcript reveals Justice Scalia making a significant and sustained effort to provide a pro-defendant reading of the statute.  In notable contrast, Justice Breyer seems to be comfortable with a broader reading of the ACCA statute, though it is not entirely clear how he will vote in the case (especially since last term Justice Breyer thoughtfully suggested that the rule of lenity should apply with special force in cases involving mandatory minimum sentencing provisions).

There are other tea leaves worth reading for real ACCA junkies in the Johnson transcript, though it is hard to come away from the transcript without agreeing with Justice Alito's well-articulated view in an earlier ACCA case that Congress need to fix via a new statute the very messy and opaque jurisprudence that the Supreme Court's ACCA decision have now produced.

Notable (new?) First Circuit opinion on Heller and federal juve crimes and punishment

I just discovered today this notable opinion from the First Circuit concerning the Second Amendment and federal juvenile prosecution and punishment. Strangely, the opinion in US v. Rene E., Juvenile Male, is dated August 31, 2009, but perhaps there was some reason the ruling was not made public earlier. Whatever the backstory, anyone interested in the Second Amendment or federal prosecution of juveniles will want to check out the First Circuit's work in Rene E.  Here is how the opinion starts:

Juvenile Rene E. ("appellant") was charged with possessing a handgun in violation of 18 U.S.C. § 922(x)(2)(A) and 18 U.S.C. § 5032, the charging provision of the Juvenile Delinquency Act. After his motions to dismiss and motion to suppress were denied, he entered a conditional guilty plea. On appeal, he raises constitutional challenges to 18 U.S.C. § 922(x)(2), arguing both that it violates his rights under the Second Amendment, as interpreted by the Supreme Court in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), and that it exceeds Congress's authority under the Commerce Clause. He also challenges the sentence he received under the Juvenile Delinquency Act, arguing that the district court erred in determining the maximum sentence to which a similarly situated adult would be subject under the United States Sentencing Guidelines.

We hold that 18 U.S.C. § 922(x)(2)(A) does not violate the Second Amendment, and we reaffirm our holding in United States v. Cardoza, 129 F.3d 6 (1st Cir. 1997), that section 922(x)(2)(A) does not exceed Congress's Commerce Clause authority.  Lastly, because appellant is no longer in detention or under juvenile supervision, we conclude that his sentencing challenge is moot.  Therefore, we affirm.

UPDATE:  Over at Crime & Consequences, Kent here has a notable (and amusing) reaction to the ruling in Rene E.:

Personally, I'd like to see the Commerce Clause challenge go up to the Supreme Court. The peoples of Arkansas and Massachusetts should be able to come to different conclusions regarding whether 17-year-olds can possess handguns.

Perhaps we should also have a limit on the length of statutes so that none will ever need a subdivision (x).

Iowa Supreme Court finds 25-year sentence for statutory rape questionable under state constitution

A helpful reader alerted me to a fascinating new opinion from the Supreme Court of Iowa in State v. Bruegger, No. 07–0352 (Iowa Oct. 2, 2009) (available here). Here is how today's must-read starts:

In this case, we are confronted with a claim by a defendant convicted of statutory rape that a twenty-five-year prison sentence amounts to cruel and unusual punishment.  His term of incarceration was substantially lengthened based upon a prior incident of sexual misconduct committed by the defendant as a juvenile.  For the reasons expressed below, we vacate the sentencing order of the district court and remand for further proceedings.

The majority opinion provides a terrific review of a whole array of constitutional issues and closes this way:

[W]e note that Bruegger has committed a serious crime for which the legislature may impose a serious penalty. We do not view statutory rape as a victimless crime in light of the risk of disease, pregnancy, and serious psychological harm that can result from even apparently consensual sexual activity involving adults and adolescents. Nor do we believe that Bruegger’s conduct as a juvenile is irrelevant to sentencing. Our sole concern here is whether, under the facts and circumstances, a mandatory sentence of 21.25 years is “off the charts.” We, therefore, vacate the sentencing order of the district court and remand the case for a new sentencing hearing to allow Bruegger and the State to present evidence as to the constitutionality of section 901A.2(3) as applied to the defendant.

The dissenters believe that the majority has gone to far, as evidenced by this opening paragraph of the dissenting opinion authored by one judge:

While the majority opinion is thoughtful and compelling, I refrain from joining in it because sentencing parameters is an area of the law for which courts are required to give great deference to the policies of the legislature as written into sentencing statutes.  The individual-assessment approach introduced by the majority in this case will only permit the courts to substitute their judgment for that of the legislature in cases to follow.  This approach is contrary to the principles of judicial restraint and separation of powers.

"Judge: Teen too pregnant for jail; She can give birth first, then go, judge says"

The title of this post is the headline of this interesting local article from Michigan. Here are the details:

A 19-year-old Pontiac woman was to be sentenced to prison Wednesday for her role in a crash that killed her pregnant friend. Instead, she will get a nine-week reprieve because she is now pregnant and due to deliver in five weeks. The sentencing judge said he did not want the child born behind bars.

Alexis D. Wilson stood before Oakland County Circuit Judge Edward Sosnick. Sosnick told her she would have to report for sentencing Nov. 25. Her baby is due Nov. 1.

Wilson, who is unemployed, faces 43 to 86 months in prison for the July 6, 2008, death of Tamia Williams, 17. Blood tests, taken at the scene but completed almost six months later, showed traces of marijuana in Wilson.

She pleaded no contest earlier this year to driving while intoxicated causing death, manslaughter with a motor vehicle and operating a motor vehicle while intoxicated, causing a miscarriage.

Her attorney, Cyril Hall, said there was no evidence marijuana was a cause. "There is no evidence whatsoever that this accident was the result of intoxication," he said. "It's like drinking 30 days ago, then you get stopped today and arrested for drunk driving."

However, under Michigan law, drivers who have marijuana in their bloodstream at the time of an accident are guilty of a crime.

"Athlete's sentence: No prison, no sports"

The title of this post is the headline of this local Ohio article that a helpful reader sent my way.  Here are the fascinating details:

Applause turned to gasps in a Butler County courtroom Thursday as a judge announced an unusual punishment for a Middletown track and football star: Dwayne "Deejay" Hunter is forbidden from playing organized sports during his five-year probation for a felonious assault conviction. "We're going to see who Dwayne Hunter the person is, not who Dwayne Hunter the star athlete is," declared Judge Andrew Nastoff, as he said Hunter still has a six-year prison sentence that would be imposed if he violates any conditions of his probation.

Nastoff had warned Hunter: "You're 19 years old. And you are standing right here, six inches away from a prison number and the potential to go away to prison for eight years - that's two presidential terms. You are right there," the judge said, drawing his index finger and thumb within an inch of each other. Then the judge announced, "You are not going to prison today."

When at least a dozen supporters applauded and cheered, Nastoff quieted the crowd and told anyone who couldn't control themselves to leave. Then he began outlining all the conditions of probation: no sports, not even intramurals; a $500 fine; 500 hours of community service, which can include his helping youngsters in Special Olympics, pee-wee football or other sports; plus 180 days in the Butler County Jail. With credit for time served, he will be released just before Thanksgiving.

An aunt, Rita Hunter, said the family would have a celebration that would be "beyond joyous - it will be awesome." Within 30 days of his release, Deejay Hunter must either obtain full-time employment or enroll in full-time schooling, Nastoff ordered, and also must attend counseling to address "personality and relationship issues" outlined in a mental-health evaluator's report.

Nastoff said Hunter must make abiding by these rules his top priority. If he messes up even once, the judge vowed to send Hunter to prison. Hunter's aunt wiped tears from her eyes and expressed gratitude that Nastoff kept her nephew out of prison, yet said she felt badly he's being kept away from sports. "I'm kind of happy and sad at the same time," she said. "It's kind of strict, but the judge had to do what he had to do."

Hunter, who pleaded guilty as charged in July, could have received up to eight years in prison for shooting a BB gun from a vehicle on a Middletown street in January, striking a 15-year-old boy in the face; one of the BB's struck the victim's eyelid. "You were probably an inch away from blinding someone," the judge told Hunter.

Nastoff said the victim's family wrote to him and said that Hunter had served enough jail time. Nastoff said he wasn't sure he agreed with that sentiment. "That's what kind of people they are. They're big people - big enough, in spite of what happened, to say maybe he's served enough punishment," Nastoff said.

Hunter, who wore No. 26 for the Middies at cornerback, attracted football scholarship offers from across the nation and had planned to sign a letter-of-intent with one of those colleges on national signing day, Feb. 4. Instead, he was sitting in jail. "Virtually every Division I school was interested in him," said Hunter's attorney, Frank Schiavone.

In track, Hunter ran the 100-yard dash in 10.2 seconds - but missed competing in the state finals because he was locked up for violating terms of his bond in the BB gun incident. Hunter, who graduated this spring, was also a good student, carrying a 3.4 grade-point average, Schiavone said.

Nastoff said the list of college scholarships meant nothing to him. "Do you know what I care about? How are you going to live - are you going to shoot people in the face?" Nastoff said.

Nastoff told Hunter he detected a possible "seed of empathy" because, among about a half-dozen speeches in court Thursday, "you were the only one that talked about what happened to the victim." Nastoff said the sentence was crafted to force Hunter to learn vital life lessons. "Find out who you really are without this whole aura of the athletics around you, because quite frankly in some ways it's made you a Frankenstein monster. It's made you think you're owed certain things," Nastoff said.

In addition to welcoming comments about whether this sentence is wise, I would also love to hear from anyone who thinks it might be constitutionally questionable.