Friday, January 20, 2017

You be the judge: what federal sentence for "Dance Mom" star after her guilty plea to financial crimes?

Abby-lee-millerI am not ashamed to admit that some years ago the reality show "Dance Moms" was a regular watch in the Berman home.  My dancing daughters found engaging how the young dancers in the show stood up to the pressures created by teachers and parents; I was amazed at how the adult star, Abby Lee Miller, created a media sensation despite having no obviously distinctive talents.  But now, as this local article highlights, headlined "'Dance Moms' TV star faces sentencing in federal court," Abby Lee Miller is now of interest to me for a very different reason. Here are the details:

“Dance Moms” TV star Abby Lee Miller, convicted of hiding assets from bankruptcy court and sneaking cash into the U.S. to conceal it, says she shouldn’t go to federal prison. Ms. Miller, whose real name is Abigale Miller, is asking U.S. District Judge Joy Flowers Conti for probation.

But the government says she has shown no respect for the law — at one point she sent an email to her accountant using a vulgar term in referring to the bankruptcy judge handling her case — and deserves the two years to 30 months called for by federal sentencing guidelines.

Ms. Miller’s sentencing will start today. A second day has been set aside to finish it on Feb. 24. The unusual format was necessary because the sentencing is likely to be contentious enough to require two days and the judge also is handling the ongoing drug trial of former Pittsburgh Steelers doctor Richard Rydze.

Ms. Miller became a federal felon in June when she pleaded guilty to concealing assets from her TV show from federal bankruptcy court in Pittsburgh. She also admitted that she sneaked cash into the country in plastic bags stuffed into luggage after returning from dance trips in Australia. In pre-sentencing filings, Ms. Miller gave an accounting of her past, saying her family-run Penn Hills dance studio was in financial trouble in the late 2000s because of her lack of financial knowledge and a drop in enrollment caused by the global economic crisis and the decline of Penn Hills. She declared bankruptcy in 2010.

But when her reality TV show took off in 2011, she and her lawyer said, she suddenly became a star and didn’t know how to handle the fame that it brought. She soon became overwhelmed. “She was simply ill-equipped to manage her good fortune,” wrote attorney Brandon Verdream. He said she always intended to pay off her creditors at 100 percent and has admitted that what she did was wrong. “It was a foolish decision to skirt the law and she has accepted a felony conviction as the wages of her frivolity,” Mr. Verdream wrote.

He and Ms. Miller, who had been splitting time among homes in California, Florida and Penn Hills, also pointed to all of the people she has helped over the years as one reason she should not be jailed, including the 40-some dancers she has trained who went on to professional careers on Broadway and elsewhere. Mr. Verdream presented many letters on her behalf and asked Judge Conti to impose a “non-custodial” sentence.

But federal prosecutors say the guidelines don’t allow for probation and Ms. Miller’s calculated conduct warrants time behind bars. Assistant U.S. Attorney Greg Melucci said that Ms. Miller had numerous opportunities during her bankruptcy to set the record straight about her assets, yet chose to lie repeatedly.

Among his exhibits are emails and texts she sent showing her contempt for the court and her intent to hide income even after warnings. After being dressed down by U.S. Bankruptcy Judge Thomas Agresti in February 2013, for example, she sent an email to her accountant describing the judge using a derogatory term and complaining that he hated her because he was making her pay all of her creditors back at once.

Judge Agresti showed plenty of irritation at Ms. Miller as her schemes became apparent, Mr. Melucci said. At one hearing in 2012, he found out she hadn’t revealed her income from 2012 and had also struck TV show contracts without disclosing them in an amended bankruptcy plan. After she complained that she didn’t even know about the contracts, he’d had enough. “And she can shake her head and protest all she wants and go through her TV face, that’s not going to affect me, ma’am, and I’d prefer you stop it, OK?” the judge told her. “Let’s be a little stoic here. These are very serious problems you have, and a failure to disclose.”

Mr. Melucci also said her attempt to transport cash into the U.S. shows that she continued “her scheming ways” even after being caught hiding assets from bankruptcy. “It is apparent that Miller is not easily deterred by the threat of criminal prosecution,” he wrote, “even standing before a federal judge.” Judge Agresti discovered Ms. Miller’s fraud by chance. He said he was channel-surfing one night, came across her TV performances and realized she had more money than she was revealing in her Chapter 11 filings.

The U.S. Attorney’s office said she tried to hide about $755,000 from the bankruptcy trustee. In the other case, prosecutors said she did not report money that she transferred from Australia into the U.S. after trips there in 2014 to conduct dance instruction classes before large audiences. Mr. Melucci said she and her entourage brought back about $120,000 in cash tucked into Ziploc bags in amounts less than $10,000 and hidden in their luggage. Among the government’s exhibits is a photo of the cash bundles seized.

January 20, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Monday, January 16, 2017

SCOTUS to confront implication for immigration statute of Johnson vagueness ruling

On Tuesday, the Supreme Court is scheduled to hear oral argument in Lynch v. Dimaya, which comes to the Justices as part of the aftermath of their big 2015 Armed Career Criminal Act vagueness ruling in Johnson v. United States.  Over at SCOTUSblog here, Kevin Johnson has this preview of the case. It starts this way:

The U.S government targets noncitizens with criminal convictions for removal from the United States.  These efforts have allowed President Barack Obama’s administration to deport approximately 2.5 million noncitizens during Obama’s eight years in office, more than any other president in American history.  On several recent occasions, the Supreme Court has found that the administration went too far and has set aside orders of removal of criminal offenders that it has found to be inconsistent with the immigration statute. For example, in Mellouli v. Lynch, in 2015, the court held that a state misdemeanor conviction for possession of drug paraphernalia did not justify removal.  In 2013, in Moncrieffe v. Holder, the justices found that a lawful permanent resident’s conviction for possession of a small amount of marijuana — now legal in many states — did not mandate removal.  Next week, the Supreme Court will hear oral argument in Lynch v. Dimaya, another criminal-removal case, but one with potentially far-reaching constitutional implications.

A noncitizen, including a lawful permanent resident, who is convicted of an “aggravated felony” is subject to mandatory removal.  The Immigration and Nationality Act defines “aggravated felonies” expansively to include crimes, including some misdemeanors, that run the gamut from murder to virtually any drug and firearm offense.  That definition incorporates 18 U.S.C. §16(b), known as the “residual clause,” which defines a “crime of violence” to encompass “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

In 2015, in Johnson v. United States, the court, in an opinion by Justice Antonin Scalia, struck down as unconstitutionally vague the Armed Career Criminal Act’s definition of “violent felony,” which included crimes that “involve conduct that presents a serious potential risk of physical injury to another.”  The Johnson court held that the statutory language “fail[ed] to give ordinary people fair notice of the conduct it punishes, [and was] so standardless that it invite[d] arbitrary enforcement.”

Born in the Philippines, James Garcia Dimaya has lived in the United States as a lawful permanent resident since 1992.  Based on Dimaya’s two California burglary convictions, the U.S. government sought to remove him from the United States.  Finding that burglary was a “crime of violence” under Section 16(b)’s residual clause and thus an “aggravated felony,” an immigration judge ordered Dimaya removed.  The Board of Immigration Appeals agreed.  In a rare decision finding a removal provision of the U.S. immigration laws to be unconstitutional, the U.S. Court of Appeals for the 9th Circuit concluded that Section 16(b) was void for vagueness.

January 16, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Sunday, January 15, 2017

Nebraska Supreme Court decides "undocumented status" can be proper, but not conclusive, sentencing factor when deciding on probation sentence

As reported in this local article, headlined "Immigration status can be used to help decide sentencing, Nebraska Supreme Court says," the top court in the Cornhusker State handed down an interesting ruling late last week. Here is the effective press summary of the decision:

A person’s immigration status can be considered when deciding if someone should be sentenced to probation rather than jail, though it cannot be the sole factor, the Nebraska Supreme Court ruled Friday. It was the first time the state’s highest court has weighed in on the issue of whether criminal defendants can be denied probation solely because they are in the country illegally.

Jose Cerritos-Valdez had appealed after being sentenced to 230 days in jail and a $500 fine for two misdemeanors, attempted possession of a controlled substance and driving under the influence. His driving privileges were revoked for one year.

During sentencing, Sarpy County District Judge David Arterburn expressed reluctance to sentence Cerritos-Valdez to probation. One condition of probation is to obey all laws, and to do that, the judge said, would require Cerritos-Valdez to leave the country, because he was in the United States illegally. Arterburn also said he’d like to get some guidance on the issue from a higher court.

The Supreme Court’s ruling, written by Judge Stephanie Stacy, said that while this is an unsettled area of law, a consensus has formed in other courts that defendants cannot be denied probation solely because they are in the country illegally.

The full ruling in Nebraska v. Cerritos-Valdez is available at this link, and here is the heart of the court's nuanced analysis (with footnotes/cites removed):

This case presents the narrow question of whether a defendant’s undocumented status is a relevant consideration when determining whether to grant or deny probation.  We have not previously considered this question, but other courts have.  

While the law in this area is not well settled, a consensus has developed that it is impermissible for a sentencing court to deny probation based solely on a defendant’s undocumented status.  Beyond that broad proposition, courts differ on when, or for what purpose, a sentencing judge may properly consider a defendant’s undocumented status when deciding whether to impose probation.

Generally, in discussing whether it was proper to consider a defendant’s undocumented status in connection with deciding whether to impose a sentence of probation, other courts have focused on whether the defendant’s status implicated other relevant sentencing considerations.  For instance, some courts have held it is appropriate to consider the effect of a defendant’s undocumented status on his or her ability or willingness to comply with conditions of probation.  Other courts have reasoned that a defendant’s undocumented status or a history of repeated illegal reentry into the U.S. may demonstrate an “unwillingness to conform his or her conduct to the conditions of probation” or show that a probation sentence would not “be at all effective” for that defendant.  Still others have held that the undocumented status of defendants may be considered as it relates to their criminal history.  At least one court has noted that a defendant’s undocumented status is properly considered as it relates to the defendant’s employment history or legal employability.  And we note that in some instances, defendants have specifically asked the sentencing court to consider their undocumented status, arguing it would be error not to consider it.

Based on the foregoing, we agree that a defendant’s status as an undocumented immigrant cannot be the sole factor on which a court relies when determining whether to grant or deny probation; however, a sentencing court need not ignore a defendant’s undocumented status.  When deciding whether to grant probation, a defendant’s undocumented status may properly be considered by a sentencing court as one of many factors so long as it is either relevant to the offense for which sentence is being imposed, relevant to consideration of any of the required sentencing factors under Nebraska law, or relevant to the defendant’s ability or willingness to comply with recommended probation conditions.

January 15, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, January 13, 2017

New ACLU report details unique harms of solitary confinement for prisoners with physical disabilities

The American Civil Liberties Union has released this big report to spotlight particular problems for a particular prison population subject to solitary confinement.  The ACLU report is titled "Caged In: Solitary Confinement's Devastating Harm on Prisoner's With Physical Disabilities," and here is how the report is summarized at this webpage:

This report provides a first-ever national ACLU account of the suffering prisoners with physical disabilities experience in solitary confinement.  It spotlights the dangers for blind people, Deaf people, people who are unable to walk without assistance, and people with other physical disabilities who are being held in small cells for 22 hours a day or longer, for days, months, and even years.  Solitary confinement is a punishing environment that endangers the well-being of people with physical disabilities and often violates the Americans with Disabilities Act.  The report’s revelations about the particular harms of solitary on people with physical disabilities shows the urgent need for far better accounting of the problems they face and the development of solutions to those problems.

January 13, 2017 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (1)

Thursday, January 12, 2017

New report spotlights five Florida counties often condemning to death murderers have mental impairments

A few weeks ago, as noted in this prior post, Harvard Law School's Fair Punishment Project (FPP) released a report detailing and lamenting the composition of Oregon's death row under the title "Oregon’s Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments."  Today, FPP has this new report bringing a similar analysis and criticism to a portion of a different state.  This new report is titled "Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments in Five Florida Counties,"  and here are excerpts from the introduction:

The Florida Supreme Court recently held that the state’s capital punishment statute is unconstitutional. Approximately 380 people sentenced to death under the now-invalidated sentencing scheme remain on the death row. While litigation is still pending over whether the decision applies to all Florida death sentences, the Court has clarified that the approximately 150 people who were convicted after the Ring v. Arizona decision in 2002 must have their sentences reconsidered. Roughly one-third of these individuals convicted since 2002 come from just five of Florida’s 67 counties: Duval, Miami-Dade, Hillsborough, Orange, and Pinellas.

This report examines the 48 invalidated death sentences from these five Florida counties. We examined legal pleadings and opinions, trial testimony, and media reports, and consulted with several legal experts in Florida who are familiar with the individuals on death row.

Our research revealed that 63 percent of these individuals exhibit signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred. The pervasiveness of these crippling impairments among Florida’s death row population is significant when evaluating whether the death penalty was the appropriate sentence. Although all murders are gruesome and deserving of serious sanction, the Constitution limits the death penalty to the most heinous murders. Even then, the Constitution and established Supreme Court doctrine have limited application of the death penalty to adults who exhibits mental and emotional functioning that is equal to or exceeds that of the typically developed adult. So, for example, the U.S. Supreme Court has held that, regardless of the severity of the crime, the death penalty cannot be imposed upon a juvenile or an intellectually disabled person, both classes of individuals who suffer from impaired mental and emotional capacity relative to typically developed adults. To do otherwise would be so disproportionate as to violate his or her “inherent dignity as a human being.”

January 12, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, January 08, 2017

"Mending the Federal Sentencing Guidelines Approach to Consideration of Juvenile Status"

The title of this post is the title of this notable new Harvard Law Review note. It gets started this way:

In a series of recent cases, the Supreme Court has reaffirmed the profound significance of a juvenile offender’s age in sentencing, seemingly rendering youth status a mandatory sentencing consideration as a constitutional matter — in at least some cases — and under the statutory sentencing directive.  Still, as a matter of policy, the Federal Sentencing Guidelines (Guidelines) — the required starting point for sentencing courts in federal cases and the benchmark for assessing the reasonableness of a sentence for appellate courts — discourage consideration of an offender’s youth and related circumstances in determining whether to depart from the recommended statutory sentencing range.  Though after United States v. Booker the Guidelines have been advisory only, the Court has recognized that even advisory Guidelines can, at times, exert an impermissible anchoring effect on sentencing courts.

This Note argues that Congress and the United States Sentencing Commission (Commission) should take seriously both the letter and spirit of the Court’s recent juveniles-are-different cases, which favor a return to a rehabilitative approach to young offenders.  Congress should address apparent conflicts between its statutory sentencing schemes and these recent cases by expanding the range of sentencing options for juvenile offenders convicted in federal court, and the Commission should promulgate new rules regarding calculation of sentences for juveniles convicted as adults in federal court.  Further, until such rules are promulgated, this Note contends that appellate courts should hesitate to presume reasonable within-Guideline sentences for juvenile offenders absent evidence that a sentencing court has considered age.

This Note proceeds in four parts.  Part I provides a brief history of the Guidelines, from development through the Court’s attempts to clarify their place post Booker. Part II describes the history of the treatment of juvenile offenders in federal courts and details the Court’s recent juveniles-are-different sentencing jurisprudence.  Part III argues that, for various reasons of law and policy, both Congress and the Commission should offer new guidance on how courts should approach the process of sentencing juvenile offenders convicted as adults.  Finally, Part IV recommends statutory changes and amendments to the Guidelines.

January 8, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, January 04, 2017

Louisiana public defenders lacking resources needed to adequately prepare for Miller resentencings in old juve LWOP cases

This interesting local article highlights the economic challenges posed for some local courts and lawyers when now having to implement retroactively the Supreme Court's Miller ruling precluding mandatory LWOP sentences for juvenile murderers.  The article is headlined "'Unfunded mandate' of individualized sentencing hearings for some juveniles causing headaches for public defenders," and here are excerpts:

A 2012 U.S. Supreme Court decision ruled out laws mandating life without parole for juveniles as unconstitutional, and a subsequent decision last year made that ruling retroactive. Now, those juveniles are required to get what’s called “individualized sentencing hearings” before such a harsh sentence can be handed down, said Carol Kolinchak, a compliance officer for the Louisiana Public Defender Board.

And those hearings take resources. “You have to investigate and develop evidence (about) the youth and the circumstances surrounding the crime,” Kolinchak told [Judge Arthur] Hunter, adding that it is the defense’s “ethical obligation” to make sure each juvenile offender gets a proper investigation into their backgrounds prior to their hearing.

But, she added, the mandate isn’t cheap, and it’s also unfunded. At a cost of $60,000 to $75,000 a client, both [Orleans Parish Chief Public Defender Derwyn] Bunton and State Public Defender Jay Dixon said they were at a loss for how to properly prepare for each client’s sentencing hearing.

According to Kolinchak, there are nearly 300 juveniles eligible for such individualized hearings throughout the state. “The question in Louisiana is the same as it is nationally, which is that it has really been an unfunded mandate,” she said. “It places burdens on defense counsel with no discussion of funding.”

The issue came up in Hunter’s courtroom Tuesday in the case of Joseph Morgan, a defendant convicted in 2015 of second-degree murder in the death of Gervais "Gee" Nicholas, a teenager gunned down in 2008 outside the Chat Club at Tulane Avenue and South Lopez Street. Morgan was 16 at the time of the shooting, but prosecutors are nevertheless seeking life without parole.

Defense attorney Tom Shlosman, who is representing Morgan pro bono, told the judge he doesn't have the resources for the elaborate proceedings now required in Morgan's case. The other officials who testified before Hunter were brought in to help bolster the broader case that more money needs to be set aside statewide to handle these types of defendants....

In New Orleans, the question is how to proceed with about 72 cases that now qualify for a so-called “Miller hearing,” Kolinchak said. On Tuesday, both Bunton and Dixon said they didn’t anticipate being able to pay for those hearings, at least for indigent clients, anytime soon, because there’s no money available to properly investigate possible mitigating circumstances for those clients.

Dixon said the state public defender’s budget has been “stagnant” at about $33 million for the past several years. Moreover, he said, the threat of a 5 percent cut to his budget looms ahead, a move he said would be “devastating” for both death penalty cases and juvenile cases like Morgan’s. That’s because Dixon's office is required to distribute about 65 percent of its budget to district defenders' offices throughout the parishes, and so the cuts would have to come from the more complex pool of cases that his office contracts out to other law firms.

Bunton said he has to stretch an $8 million budget to cover nearly 22,000 cases a year — a situation that he said leaves him no room for taking on new work like individualized sentencing hearings for indigent juveniles....

“We don’t have an answer. This is the kind of thing that funding or lack of funding creates,” Dixon said. “You’re talking about basically a juggling act with a lack of funds. And we’re both in that trick box. We do not have an answer for that.”

January 4, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, January 02, 2017

Understanding why Dylann Roof will not present penalty phase evidence at his capital trial

Last week in this post I noted the news that Dylann Roof, at a hearing before the penalty phase of his capital trial, told the district judge that "he doesn't plan to call any witnesses or present evidence to ask a jury to spare his life." This new New York Times article, headlined, "Dylann Roof Himself Rejects Best Defense Against Execution," provides some explanatory backstory.  Here is how the lengthy piece begins:

Twenty-two pages into the hand-scribbled journal found in Dylann S. Roof’s car — after the assertions of black inferiority, the lamentations over white powerlessness, the longing for a race war — comes an incongruous declaration.

“I want state that I am morally opposed to psychology,” wrote the young white supremacist who would murder nine black worshipers at Emanuel A.M.E. Church in Charleston, S.C., in June 2015. “It is a Jewish invention, and does nothing but invent diseases and tell people they have problems when they dont.”

Mr. Roof, who plans to represent himself when the penalty phase of his federal capital trial begins on Tuesday, apparently is devoted enough to that proposition (or delusion, as some maintain) to stake his life on it. Although a defense based on his psychological capacity might be his best opportunity to avoid execution, he seems steadfastly committed to preventing any public examination of his mental state or background.

“I will not be calling mental health experts or presenting mental health evidence,” he wrote to Judge Richard M. Gergel of Federal District Court on Dec. 16, a day after a jury took only two hours to find him guilty of 33 counts, including hate crimes resulting in death, obstruction of religion and firearms violations. At a hearing on Wednesday, Mr. Roof told the judge that he planned to make an opening statement but not call witnesses or present evidence on his behalf.

The testimony presented by prosecutors during the guilt phase of Mr. Roof’s trial detailed with gruesome precision how he had plotted and executed the massacre during a Wednesday night Bible study in the church’s fellowship hall. It was less satisfying in revealing why he had done it. With his choice to sideline his legal team and represent himself, the second phase — when the same jury of nine whites and three blacks will decide whether to sentence him to death or to life in prison — may prove little different.

Death penalty experts said it was exceedingly rare for capital defendants to represent themselves after allowing lawyers to handle the initial part of a case. Mr. Roof, who also faces a death penalty trial in state court, has not publicly explained his reasoning. But legal filings strongly suggest a split with his court-appointed defenders about whether to argue that his rampage resulted from mental illness.

January 2, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Friday, December 30, 2016

Third Circuit reverses (short) sentence based in part on "bare arrest record" ... JAN 3, 2017 UPDATE: Opinion VACATED at "the direction of the Court" ... AND on Jand 9, 2017 the opinion returns

A number of helpful readers made sure I did not miss the significant sentencing opinion handed down by a Third Circuit panel in US v. Mateo-Medina, No. 15-2862 (3d Cir. Dec. 30, 2016) (available here).  Here is how the opinion starts:

Maximo Mateo-Medina appeals his sentence of twelve months plus one day imprisonment for illegally reentering the United States, in violation of 8 U.S.C. § 1326(a) and (b)(1). Although Mateo-Medina pled guilty to the offense, he now appeals the sentence, arguing that the sentencing court violated his Due Process Clause rights by impermissibly considering, among other things, arrests that did not result in convictions.  The Presentence Investigation Report (PSR) that disclosed those arrests did not contain any of the underlying conduct.  For the reasons set forth below, we agree and we will therefore vacate the sentence that was imposed and remand for resentencing.

The opinion includes citations to considerable research regarding "disparities in arrest rates," and it ultimately holds that the district court's sentencing decision amounted to plain error in a final section which notes that "calculating a person’s sentence based on crimes for which he or she was not convicted undoubtedly undermines the fairness, integrity, and public reputation of judicial proceedings."

UPDATE on January 3, 2017: Another helpful reader today sent me this link to a one-page Third Circuit order which reads: "At the direction of the Court, the opinion and judgment entered on December 30, 2016 are hereby VACATED." Hmmm.

ANOTHER UPDATE on January 9, 2017:  I was again alerted by a helpful reader that, as evidenced here,  US v. Mateo-Medina, No. 15-2862 is back and seemingly as good as ever.  Color me confused and curious, but ultimately pleased to learn that this seemingly sensible opinion remains good law.

December 30, 2016 in Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1)

Saturday, December 24, 2016

Louisiana appeals court find LWOP sentence unconstitutionally excessive for fourth minor offense

As reported in this lengthy local article, headlined "Appeals court vacates 'unconscionable' life sentence for New Orleans man over theft of $15 from 'bait vehicle'," this past week brought a notable state constitutional ruling from the Louisiana Fourth Circuit Court of Appeal. Here are the basics from the press report:

Walter Johnson was walking down a street in Uptown New Orleans a week before Thanksgiving in 2013 when he noticed a Jeep Cherokee with the driver's side window down.  He glanced inside and saw a laptop and $15 in cash -- a $10 bill and a $5. Johnson snatched the bills.  He left the computer.

As it turns out, the Jeep was a law enforcement "bait vehicle," and Johnson was the catch of the day.  He was found guilty of simple burglary and illegal possession of stolen things at a trial in April 2015, and Orleans Parish District Attorney Leon Cannizzaro's office promptly invoked the state's habitual-offender law.

Johnson, who had prior convictions for simple burglary, heroin possession and cocaine distribution, was deemed a four-time felon.  Criminal District Court Judge Karen Herman sentenced him in October 2015 to a mandatory life prison term with no parole.

But on Wednesday, an appeals court panel threw out Johnson's life sentence, finding his street heist "shockingly minor in nature," the amount "extraordinary in its triviality" and Johnson's life sentence an "unconscionable" punishment that "shocks our sense of justice."  The appeals court sent the case back to Herman, telling her to resentence Johnson "to a term that is not unconstitutionally excessive."

The 10-page opinion, written by 4th Circuit Court of Appeal Judge Paul Bonin, marks the latest bid to limit the discretion that state law grants prosecutors to ratchet up sentences for low-level drug offenders and other nonviolent criminals with multiple convictions.

Judges have little control over such decisions, and the Louisiana Supreme Court has been loath to step on the Legislature's toes by overriding one of the nation's stiffest habitual-offender laws.  The state's high court has ruled that departures below the law's mandatory minimum sentences must be limited to "exceedingly rare" cases.

But occasionally it has seen fit to do so. Last year, for instance, the Supreme Court found a 30-year sentence "unconscionable" for Doreatha Mosby, a 73-year-old New Orleans woman who was found with a crack pipe tucked in her bra. Yet in the case of Bernard Noble, a father of seven who was found with the equivalent of two joints of marijuana, the court found he wasn't unusual enough to allow a sentence below the mandatory 13-year minimum under the statute.

Both of those cases, as well as Johnson's, came out of Orleans Parish, where Cannizzaro employs the habitual-offender law far more than any other prosecutor in the state. In 2015, Cannizzaro's office sent 154 convicts off to long prison sentences under the statute — almost one of every four offenders who were shipped to state prisons from New Orleans that year, according to state data analyzed by the Pew Charitable Trusts.

"You're dealing with different crime problems, socioeconomic levels, and you're dealing with different judges, different sentencing dispositions," Christopher Bowman, a spokesman for Cannizzaro's office, said in explaining the office's penchant for deploying the statute. "If you were dealing with a situation where a prosecutor feels probation is being given too freely, then the district attorney is required to use the habitual-offender law."

The full majority ruling in Louisiana v. Johnson is available at this link.  Notably, the rule s based on the Louisiana state constitutional provision prohibiting "cruel, excessive, or unusual punishment." La. Const. art. 1, § 20. Here is one notable passage (with some cites removed) from the Johnson decision: 

Despite its legality, however, we find the life-without-parole sentence imposed upon Mr. Johnson unconstitutionally excessive.  Mr. Johnson reached into the open window of a bait-vehicle and took fifteen dollars.  He is now condemned to die in prison for that crime.

We acknowledge that Mr. Johnson's life sentence, under the habitual offender law, is intended as punishment not only the current conviction, but all prior convictions as well.  Legitimate sentencing goals notwithstanding, Mr. Johnson's status as a fourth felony offender "cannot be considered in the abstract."  Solem, 463 U.S. at 296.  As previously noted, the trial judge found that all his prior felonies were for nonviolent crimes.  And the instant offense, the one which set in motion the habitual offender proceedings, is shockingly minor in nature.  No person was harmed, nor any property damaged.  Had Mr. Johnson taken the fifteen dollars but not by entry into a vehicle or other structure listed in the simple burglary statute, he would have been convicted of misdemeanor theft.

December 24, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Reviewing the unique issues and challenges for sentencing ISIS sympathizers

A helpful colleague made sure I did not miss this interesting new Wall Street Journal article headlined "ISIS Sentences Pose Challenge for Judges." The subheadline highlights the main theme of the piece, "U.S. judges grapple with how to punish young Islamic State sympathizers who could become more dangerous after decades in prison," and here are excerpts:

Federal judges this year faced the unprecedented challenge of sentencing dozens of Islamic State supporters across the country, with punishments ranging from no prison time to decades behind bars.

In Minnesota, 20-year-old Khaalid Abdulkadir received three years probation for tweeting threats to kill federal law-enforcement officers after one of his friends had been arrested for providing support to Islamic State. In Ohio, 22-year-old Christopher Cornell received 30 years in prison for plotting to attack the U.S. Capitol in Washington on the terrorist group’s behalf.

The wide range reflects the difficult question at sentencing in many of these cases: Should judges give young Americans who support Islamic State a chance to turn their lives around, or a lengthy prison sentence to ensure public safety?

For the most part, judges are choosing to be cautious, although some have begun considering alternatives to prison. Of the 39 Islamic State defendants who have been sentenced so far, the average prison sentence has been 13 years, according to Fordham University’s Center on National Security.

Since 2014, more than 110 suspected Islamic State sympathizers have been prosecuted in the U.S. for a broad array of criminal activities, including making false statements to the government and traveling overseas to fight with terrorists. Roughly half of these cases have resulted in convictions, while the other half are pending, according to Fordham. Several sentencings are scheduled to happen next year, including one in Brooklyn, N.Y., for Tairod Pugh, who was the first Islamic State sympathizer in the U.S. to be convicted at trial.

No Islamic State supporter in the U.S. has received a life sentence yet. Most defendants are arrested before they commit violence and charged with providing “material support” to terrorists, which carries a maximum 20-year sentence....

More than a quarter of the sentences have occurred in Minneapolis, whose large Somali population has been a target in recent years for terrorist recruitment. In an unprecedented move, one federal judge there, Michael J. Davis, last summer asked six defendants to undergo an evaluation before sentencing to see if they could be good candidates for a “deradicalization” program.

Judge Davis ultimately allowed only one defendant, 20-year-old Abdullahi Yusuf, to be released to a halfway house, where he could receive counseling and family group therapy. For another defendant, 22-year-old Guled Omar, who was convicted at trial of conspiring to commit murder in Syria, Judge Davis imposed 35 years in prison, the harshest sentence so far in an Islamic State case.

The deradicalization effort has caught the attention of judges around the country. In Anaheim, Calif., a federal judge in October raised the possibility of assigning such a program to 26-year-old Muhanad Badawi, who was convicted at trial for helping a friend who wanted to join Islamic State overseas. Mr. Badawi ultimately received 30 years in prison.

Most Islamic State defendants are between the ages of 18 and 26 at the time of their arrest, which means many of them don’t have a criminal history and could become more dangerous after decades in prison, some lawyers say. On average, Islamic State supporters under the age of 21 have been receiving lighter sentences, according to Fordham.

Still, most judges tend to impose the harshest sentence possible under the law for terrorist defendants. Terrorism, unlike other types of violent offenses, is a crime in which law-enforcement officials feel there can be no room for error. No judge wants to be the one who gave a lenient sentence to someone who ends up committing a terrorist attack.

December 24, 2016 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, December 22, 2016

Split Ohio Supreme Court concludes Graham violated by term-of-years juve sentence that exceeds life expectancy

The holiday season is often a time that brings some interesting sentencing ruling, and this year the jurisprudential present under my tree comes from my own Ohio Supreme Court in Ohio v. Moore, No. 2016-Ohio-8288 (Ohio S. Ct. Dec. 22, 2016) (available here). Here is how the lengthy majority opinion in Moore gets started and concludes:

We decide in this case whether the United States Supreme Court’s holding in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), prohibiting the imposition of sentences of life imprisonment without parole on juvenile nonhomicide offenders also prohibits the imposition of a term-of-years prison sentence that exceeds the offender’s life expectancy on a juvenile nonhomicide offender. We hold that pursuant to Graham, a term-of-years prison sentence that exceeds a defendant’s life expectancy violates the Eighth Amendment to the United States Constitution when it is imposed on a juvenile nonhomicide offender.

We hold in this case that Graham’s categorical prohibition of sentences of life imprisonment without the possibility of parole for juveniles who commit nonhomicide crimes applies to juvenile nonhomicide offenders who are sentenced to term-of-years sentences that exceed their life expectancies. The court of appeals abused its discretion in failing to grant Moore’s application for reconsideration. The 112-year sentence the trial court imposed on Moore violates the Eighth Amendment’s prohibition against cruel and unusual punishments. We reverse the judgment of the court of appeals and vacate Moore’s sentence, and we remand the cause to the trial court for resentencing in conformity with Graham.

Interestingly, Chief Justice Maureen O'Connor appears to have been the key swing vote here on a court that split 4-3, and her lengthy concurring opinion concludes this way:

Graham is one of the most momentous decisions in American juvenile law. Given its significance, the stated intention of the sentencing judge in this case, the de facto life sentence he imposed, and the curtness with which the court of appeals denied Moore’s application to reconsider his sentence in light of Graham, I conclude that the appellate court abused its discretion in refusing to consider Moore’s claim. The court was not bound to accept his arguments, but it was bound to consider them more thoughtfully after allowing the application for delayed reconsideration.

I concur fully in the majority opinion, which addresses the significant constitutional question that is properly before us and which holds that the court of appeals abused its discretion in failing to recognize that extraordinary circumstances were presented by Moore’s application, i.e., the unconstitutional imposition of a lengthy term-of-years sentence on a juvenile offender.

December 22, 2016 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, December 21, 2016

"The American Bar Association's Criminal Justice Mental Health Standards: Revisions for the Twenty-First Century"

The title of this post is the title of this notable new paper authored by Christopher Slobogin and now available via SSRN. Here is the abstract:

This article is an examination of the American Bar Association’s newly adopted Criminal Justice Mental Health Standards, organized around three goals that permeate the Standards. The first goal is ensuring that people with mental disabilities who encounter the criminal justice system are treated humanely and fairly.  Achieving this goal requires a delicate balance between providing the treatment necessary to ensure the safety and health of these individuals and avoiding interventions that are not legally necessary.  A second goal is to promote reliable case outcomes.  This goal requires substantive doctrines that recognize the mitigating impact of mental disabilities and an adequate evaluation system that permits clinicians to gather the information they need to address legal questions; treatment is an important element of this goal as well when necessary to enable a defendant's meaningful participation in the legal proceedings.  The third goal is to honor the autonomy of people with mental disabilities by ensuring their desires and decisions are accorded appropriate respect by their own lawyers and the rest of the criminal justice system.  The Standards adopt the position that competent defendants should have the power not only to participate but also to control the most important aspects of their cases.

December 21, 2016 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Tuesday, December 20, 2016

New report spotlights that majority of condemned Oregon murderers have mental impairments

In this post earlier this year, I noted the initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).  And, as regular readers now know, FPP is now regularly producing notable reports and research on the administration of various sentencing systems in various parts of the nation.  The latest report from FPP is titled "Oregon’s Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments," and here are parts of the start and heart of the document:

Oregon retains capital punishment mostly as an exorbitantly expensive legal fiction. In practice, as U.S. Supreme Court Justice Anthony Kennedy recently noted, the State falls on the abolitionist “side of the ledger” because “Oregon has suspended the death penalty and executed only two individuals in the past 40 years.”  More revealing still: Over the past 10 years, Oregon juries have imposed an average of just one death sentence per year, which translates into less than 1.25% of homicides, a rate far lower than that which prevailed nationally in 1972 when U.S. Supreme Court Justice Byron White concluded that the infrequent use of the death penalty meant that the punishment had “ceas[ed] to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system.”  By all functional measures, Oregonians have abandoned the death penalty.

And yet, 35 condemned inmates remain on Oregon’s death row. What do we know about those people, and about the quality of justice that resulted in their death sentences?  This report examines the cases of the condemned men and women in Oregon to see how they ended up there, and what patterns, if any, emerged.  We examined legal pleadings and opinions, trial testimony, and media reports, and consulted with several legal experts in Oregon who are familiar with the individuals on death row.

Here’s what we found: In Oregon, two-thirds of death row inmates possess signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred.  The pervasiveness of these crippling impairments among Oregon’s death row population is important because though all murders are gruesome and deserving of serious sanction, the Constitution limits the death penalty to the most heinous murders; and even then only when the person who commits the crime is someone who appears to be more culpable than the typically developing adult....

Our research indicates that approximately one-quarter of individuals on Oregon’s death row may have some form of intellectual disability or brain damage. Nine of the 35 (26%) presented evidence of significantly impaired cognitive functioning as evidenced by low IQ scores, frontal lobe damage, and fetal alcohol syndrome....

Approximately one out of every four individuals on Oregon’s death row exhibits symptoms of mental illness, or has a confirmed diagnosis. Some exhibited signs of psychotic disorders with delusions and hallucinations at the time of the crime, one had been in a state run treatment program for individuals with mental illness, and another had signs of post-traumatic stress disorder. Furthermore, the vast majority of the individuals exhibiting signs of mental illness, also presented evidence of secondary impairments such as intellectual disability, extreme childhood trauma, and youthfulness....

[A]pproximately one-third of Oregon’s death row prisoners suffered some form of severe childhood or emotional trauma. One individual was born in prison, another suffered childhood sexual abuse, and several of the individuals were in and out of the foster care system. In many cases, this trauma led to, or was compounded by, other disabilities, such as fetal alcohol syndrome. 

December 20, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

Monday, December 19, 2016

Judicial panel concludes judge committed no misconduct in the sentencing of Brock Turner

This new local article, headlined "Panel clears judge of bias in sentencing of Brock Turner," provides a notable postscript to what became a national sentencing story earlier this year. Here are the basics:

A commission cleared Santa Clara County Superior Court Judge Aaron Persky Monday of misconduct in his light sentencing of a former Stanford student who sexually assaulted an unconscious woman outside a college party.

The Commission on Judicial Performance had received thousands of complaints and petitions that Persky — who on June 2 sentenced Brock Allen Turner to six months in county jail, three years’ probation and lifetime registration as a sex offender — was biased in his sentencing decision. The district attorney’s office had asked for six years in state prison, while the defense had requested four months in county jail with up to five years probation.

“Neither the judge’s statements about the impact of prison and the defendant’s future dangerousness — factors that the judge was required to address on the record — nor any other remarks made by Judge Persky at the sentencing hearing constitute clear and convincing evidence of judicial bias,” the panel concluded unanimously.  Based in San Francisco, the panel include six public members, two lawyers, and three judicial officers.

The 12-page panel decision is available at this link, and here is a key paragraph from its introductory section:

The commission has concluded that there is not clear and convincing evidence of bias, abuse of authority, or other basis to conclude that Judge Persky engaged injudicial misconduct warranting discipline.  First, the sentence was within the parameters set by law and was therefore within the judge’s discretion.  Second, the judge performed a multi-factor balancing assessment prescribed by law that took into account both the victim and the defendant.  Third, the judge’s sentence was consistent with the recommendation in the probation report, the purpose of which is to fairly and completely evaluate various factors and provide the judge with a recommended sentence. Fourth, comparison to other cases handled by Judge Persky that were publicly identified does not support a finding of bias.  The judge did not preside over the plea or sentencing in one of the cases. In each of the four other cases, Judge Persky’s sentencing decision was either the result of a negotiated agreement between the prosecution and the defense, aligned with the recommendation of the probation department, or both.  Fifth, the judge’s contacts with Stanford University are insufficient to require disclosure or disqualification. 

Some (of many) prior related posts on the Brock Turner case:

December 19, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

"Mass incarceration and children’s outcomes: Criminal justice policy is education policy"

The title of this post is the title of this intriguing report released late last week by the Economic Policy Institute (EPI).  This press release from EPI provide a kind of report summary under the heading "Mass incarceration contributes significantly to the racial achievement gap," and here is its text:

In Mass incarceration and children’s outcomes, EPI research associates Leila Morsy and Richard Rothstein outline the connections between mass incarceration and racial achievement gaps. There is overwhelming evidence that having an incarcerated parent leads to an array of cognitive and noncognitive outcomes known to affect children’s performance in school. Independent of other social and economic characteristics, children of incarcerated parents are more likely to misbehave in school, drop out of school, develop learning disabilities, experience homelessness, or suffer from conditions such as migraines, asthma, high cholesterol, depression, anxiety, and post-traumatic stress disorder.

“Simply put, criminal justice policy is education policy,” said Morsy. “It is impossible to disentangle the racial achievement gap from the extraordinary rise in incarceration in the United States. Education policymakers, educators, and advocates should pay greater attention to the mass incarceration of young African Americans.”

African American children are six times as likely as white children to have a parent who is or has been incarcerated. One-in-four African American students have a parent who is or has been incarcerated, and as many as one-in-ten have a parent who is currently incarcerated. Because African American children are disproportionately likely to have had an incarcerated parent, the authors argue, the United States’ history of mass incarceration has contributed significantly to gaps in achievement between African American and white students.

“Despite increased national interest in criminal justice reform, President-elect Trump has promised to move in the opposite direction by advocating for a nationwide “stop-and-frisk” program,” said Rothstein. “While the chance of reform on a federal level may have stalled, advocates should look for opportunities for reform at the state and local levels, because many more parents are incarcerated in state than in federal prisons.”

The authors advocate for a number of policies to address this problem by reducing incarceration, including eliminating disparities between minimum sentences for possession of crack versus powder cocaine, repealing mandatory minimum sentences for minor drug offenses and other nonviolent crimes, and increasing funding for social, educational, and employment programs for released offenders.

December 19, 2016 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Sunday, December 11, 2016

You be the federal sentencing judge: how long a prison term for convicted Philly US Representative? UPDATE: He got 10 years!

Ap_927490019645-2I find high-profile, white-collar sentencing cases to be among the most interesting and dynamic because they often require a judge (and others) to balance and calibrate competing punishment theories and goals.  Because most white-collar offenders are not violent and often had a successful/productive life before getting into trouble, the need for severe punishment to incapacitate or specifically deter an offender from committing future crimes is often diminished.  But because potential white-collar offenders are likely influenced by the deterrent impact emerging from the punishment of others like them, and also because white-collar offenders typically have had a relatively advantaged background, one can reasonably believe that crime control and just punishment concerns justify always throwing the book at any and all serious white-collar offenders.  

With that backdrop, I am not surprised to have seen this past week a pair of articles reporting on lawyers are fiercely debating the federal sentences for a convicted politician from the City of Brotherly Love.  The sentencing of Chaka Fattah takes place this Monday, and these two local articles, linked here and with their introductions, provide the basics for any wanna-be federal sentencing judge:

"Feds recommend 17-22 years in prison for Fattah"

Chaka Fattah could spend the next two decades in prison if federal prosecutors get their way at the former congressman's sentencing hearing next week. In a memo filed with the court late Monday, government lawyers described the Philadelphia Democrat as "self-serving" and utterly unremorseful and urged U.S. District Judge Harvey Bartle III to sentence him within a range of 17 to 22 years in prison.

"Fattah understood the power and trust given to elected officials and that corruption benefits the few at the expense of the many," Special Assistant U.S. Attorney Eric Gibson wrote. "He chose to violate the trust of his constituents and the taxpayers to line his pockets and advance his personal and professional goals at their expense."

That punishment, if imposed, would far exceed those received by other Philadelphia-area politicians who ran afoul of federal corruption cases. State Sen. Vincent Fumo received five years after his 2009 conviction on 137 counts including conspiracy and fraud. But prosecutors noted that their recommended sentence for Fattah fell well within the federal sentencing guidelines for his crimes. What's more, they said, it tracks with other recent sentences for corrupt politicians, including former New Orleans Mayor Ray Nagin and former Detroit Mayor Kwame Kilpatrick, convicted of similar crimes.

"Fattah lawyers: A 17-to-22 year sentence for ex-congressman would be 'unnecessarily harsh'"

Chaka Fattah's lawyers pushed back against prosecutors Thursday, calling the two-decade-long sentence they recommended for the former congressman "extreme" and "unnecessarily harsh." Such a punishment, they said in a court filing, would be the longest prison term ever received by a member of Congress for corruption.

Instead, the defense urged U.S. District Judge Harvey Bartle III to consider a far shorter term and argued that the Philadelphia Democrat's misdeeds hardly compared to those of politicians found guilty in more serious cases.  "While it is true that Chaka Fattah now stands before this court convicted of serious crimes, he is also a man that has dedicated his entire life to the service of others," defense lawyer Mark Lee wrote.  "As a legislator, he made the education of disadvantaged youth his life's work.  And as a mentor and role model, Chaka Fattah inspired countless young men and women to service and self-improvement."

The defense's sentencing recommendation followed one filed Monday by prosecutors, who argued that Fattah deserves a sentence of between 17 and 22 years under federal sentencing guidelines. Fattah's team, in its filing, countered that the correct guideline range was 11 to 14 years — and suggested a far shorter term than that.

Their back-and-forth set up what is likely to be a contentious court battle Monday when Fattah, 60, will become the first member of Pennsylvania's congressional delegation to be sentenced in a federal corruption case since 1996, when Pittsburgh-area Rep. Joseph P. Kolter was sentenced to six months for covering up his theft of thousands of dollars in taxpayer funds with vouchers that claimed he used the money to buy stamps for his office.

My own punishment views in these kinds of white-collar cases, which may be influenced both by my ivory-tower history and my past work for certain white-collar defendants, lead me to believe that a few years in federal prison (plus a big financial sanction) will usually be sufficient to achieve utilitarian and retributivist goals. Stated slightly differently and in terms of the key directive of federal sentencing law, I tend to view any prison sentence of more than a few years when the defendant poses no real continuing threat to public safety to be "greater than necessary" to achieve congressional punishment purposes.

UPDATEThis Politico article completes the sentencing story in its headline: "Fattah sentenced to 10 years in prison."

December 11, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (10)

Saturday, December 10, 2016

US Sentencing Commission proposes many guideline amendments as many USSC members complete service

JS-USSC_Logo-e1405802171396This extended press release from the US Sentencing Commission reports on the significant activities of the USSC at its public meeting yesterday.  The press release also explains a bit why these activities took place at this time and why the USSC is on the verge of a big transition.  Here are highlights (with links from the original):

Today the United States Sentencing Commission unanimously voted to publish proposed amendments to the federal sentencing guidelines.

The public meeting afforded the current commissioners the opportunity to work together for the last time, as the terms of Chief Judge Patti B. Saris (Chair of the Commission), Judge Charles R. Breyer (Vice Chair), and Commissioner Dabney L. Friedrich will expire at the end of the current congressional session.  Praising her colleagues, Chair Saris remarked, “Commissioner Friedrich and Judge Breyer demonstrated a remarkable commitment to improving federal sentencing policy and brought a wealth of knowledge and experience to the Commission.  I am deeply honored to have worked with them, and all of the commissioners, these past six years to make the guidelines more efficient, effective, and just. The proposed amendments were evidence-based, data-driven, and adopted in a collegial and bipartisan fashion. I thank all the commissioners and staff for their hard work. I am confident that the future Commission and its staff will remain dedicated to this serious and important mission” (full remarks).

In her final statement as Chair, Chief Judge Saris stated, “Next year marks the 30th anniversary of the federal sentencing guidelines. So much bipartisan progress has been made in criminal justice reform. I am hopeful that the 115th Congress will pass meaningful legislation, adopting the Commission’s unanimous recommendations to reduce the statutory mandatory minimum penalties for drug trafficking and to expand the so-called ‘safety valve,’ the mechanism to reduce sentences for non-violent, low level offenders.” The Commission will announce a new Acting Chair at the conclusion of this session of Congress.

The Commission proposed an amendment that could increase the use of alternatives to incarceration for first-time offenders. The Commission remains committed to its work to make the guidelines and federal sentencing fairer and more proportionate while maintaining an ongoing commitment to public safety.  In 2010, the Bureau of Prisons inmate population was 37% over capacity, and now it is around 15%.  Consistent with the ongoing statutory mandate to address overcrowding, the proposed amendment would reduce penalties for first-time offenders and increase the availability of alternatives to incarceration.  In a 2015 study, the Commission found that alternative sentences were imposed in only 13% of federal cases.  In a more recent research report, the Commission further found that offenders with zero criminal history points had the lowest rates of recidivism.

The commissioners also agreed to conduct a two-year study of synthetic drugs, which may result in establishing drug equivalencies for controlled substances not yet referenced at the drug quantity table in §2D1.1. To contribute to the study, commissioners voted to seek comment on offenses involving synthetic cannabinoids, synthetic cathinones (more commonly known as bath salts), and MDMA, also known as Ecstasy.

In a May 2016 report, the Commission’s Tribal Issues Advisory Group (TIAG) identified the treatment of youthful offenders as an area needing further examination. As a result of this study and the Commission’s subsequent research, commissioners voted unanimously to publish a proposed amendment that would exclude juvenile sentences from being considered in the calculation of the defendant’s criminal history score.

Another proposed amendment responds to the Bipartisan Budget Act of 2015. The Commission is considering a proposed amendment that reflects Congress’s changes to the Social Security Act by increasing penalties for social security fraud. In putting forth this proposed amendment, Chair Saris stated, “I would like to acknowledge the important years of work, as well as the continued oversight, led by the House Judiciary Committee, the Senate Committee on Finance and the House Ways and Means Committee to ensure aggressive implementation of these new penalties relating to Social Security fraud.” Other changes relate to the treatment of revocation sentences under §4A1.2(k) and a possible departure provision at §4A1.3 based on an offender’s criminal history category.

Over the past six years, the current Commission took a number of actions to address unwarranted sentencing disparities and to reduce federal prison costs and populations. The Commission reduced disparities in federal cocaine sentencing policy by giving retroactive effect to the guideline changes resulting from the Fair Sentencing Act of 2010, resulting in reduced sentences for 7,748 federal offenders. In 2014 the Commission changed the offense levels associated with the drug quantity table (often referred to as the “Drugs Minus Two” amendment)—as a result, 28,544 prison sentences were reduced, following the review of each case by a federal judge. These actions have contributed to a significant decrease in the federal prison population, leaving more funding for law enforcement, crime prevention and reentry programming, and victim services....

By statute, commissioners are appointed by the President and confirmed by the Senate, and serve six-year terms. At least three of the commissioners must be federal judges and no more than four may belong to the same political party. Other Commissioners include Circuit Judge William H. Pryor, Jr., Commissioner Rachel E. Barkow, Commissioner J. Patricia Wilson Smoot (ex-officio, U.S. Parole Commission), and Commissioner Michelle Morales (ex-officio, U.S. Department of Justice). The Commission must have at least four voting Commissioners for a quorum.

December 10, 2016 in Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Offender Characteristics, Who Sentences? | Permalink | Comments (0)

Thursday, December 08, 2016

Fascinating accounting of considerable racial disparity in Florida sentencing

A helpful reader altered me to an extraordinary series of articles now in the Sarasota Herald-Tribune examining disparities in Florida's sentencing system, all under the heading "Bias on the Bench."  The lead article is headlined "Florida’s broken sentencing system: Designed for fairness, it fails to account for prejudice," and it starts this way:

Justice has never been blind when it comes to race in Florida. Blacks were first at the mercy of slave masters. Then came Jim Crow segregation and the Ku Klux Klan. Now, prejudice wears a black robe.

Half a century after the civil rights movement, trial judges throughout Florida sentence blacks to harsher punishment than whites, a Herald-Tribune investigation found. They offer blacks fewer chances to avoid jail or scrub away felonies. They give blacks more time behind bars — sometimes double the sentences of whites accused of the same crimes under identical circumstances.

Florida lawmakers have struggled for 30 years to create a more equitable system. Points are now used to calculate sentences based on the severity of the crime, the defendant’s prior record and a host of other factors. The idea is to punish criminals in Pensacola the same as those in Key West — no matter their race, gender or wealth. But the point system has not stopped discrimination.

In Manatee County, judges sentence whites convicted of felony drug possession to an average of five months behind bars. They gave blacks with identical charges and records more than a year. Judges in the Florida Panhandle county of Okaloosa sentence whites to nearly five months for battery. They lock up blacks for almost a year. Along the state’s northeast shore, judges in Flagler County put blacks convicted of armed robbery away for nearly triple the time.

“It’s unconscionable,” said Wengay Newton Sr., a former St. Petersburg city commissioner and Democrat, who was elected to the Florida House of Representatives in November. “That’s like running a red light in a white car and your ticket is $100 and running a red light in a black car and your ticket is $300.”

The Herald-Tribune spent a year reviewing tens of millions of records in two state databases — one compiled by the state’s court clerks that tracks criminal cases through every stage of the justice system and the other by the Florida Department of Corrections that notes points scored by felons at sentencing.

Reporters examined more than 85,000 criminal appeals, read through boxes of court documents and crossed the state to interview more than 100 legal experts, advocates and criminal defendants. The newspaper also built a first-of-its-kind database of Florida’s criminal judges to compare sentencing patterns based on everything from a judge's age and previous work experience to race and political affiliation.

No news organization, university or government agency has ever done such a comprehensive study of sentences handed down by individual judges on a statewide scale. Among the findings:

• Florida’s sentencing system is broken. When defendants score the same points in the formula used to set criminal punishments — indicating they should receive equal sentences — blacks spend far longer behind bars. There is no consistency between judges in Tallahassee and those in Sarasota.

• The war on drugs exacerbates racial disparities. Police target poor black neighborhoods, funneling more minorities into the system. Once in court, judges are tougher on black drug offenders every step of the way. Nearly half the counties in Florida sentence blacks convicted of felony drug possession to more than double the time of whites, even when their backgrounds are the same.

• Florida's state courts lack diversity, and it matters when it comes to sentencing. Blacks make up 16 percent of Florida’s population and one-third of the state’s prison inmates. But fewer than 7 percent of sitting judges are black and less than half of them preside over serious felonies. White judges in Florida sentence black defendants to 20 percent more time on average for third-degree felonies. Blacks who wear the robe give more balanced punishments.

• There’s little oversight of judges in Florida. The courts keep a wealth of data on criminal defendants. So does the prison system. But no one uses the data to review racial disparities in sentencing. Judges themselves don’t know their own tendencies.

Without checks to ensure equality, bias reigns.

Here are links to the other pieces in the series:

December 8, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)

Wednesday, December 07, 2016

"How Tough on Crime Became Tough on Kids: Prosecuting Teenage Drug Charges in Adult Courts"

The title of this post is the title of this notable new report from The Sentencing Project. Here is its Introduction:

Transfer laws in 46 states and the District of Columbia permit youth to be tried as adults on drug charges.

Successful campaigns to raise the age of juvenile court jurisdiction have rolled back some excesses of the tough on crime era.  After the implementation of Louisiana’s SB 324 in 2017 and South Carolina’s SB 916 in 2019, just seven states will routinely charge 17-year old offenders as adults, including the two states that also charge 16-year olds as adults.  Despite other state laws that differentiate between adults and youth, placing limits on teens’ rights to serve on juries, vote, or marry without parental consent, the criminal justice system in these jurisdictions erases the distinction when they are arrested.

Though the vast majority of arrested juveniles are processed in the juvenile justice system, transfer laws are the side door to adult criminal courts, jails, and prisons.  These laws either require juveniles charged with certain offenses to have their cases tried in adult courts or provide discretion to juvenile court judges or even prosecutors to pick and choose those juveniles who will be tried in adult courts.

It is widely understood that serious offenses, such as homicide, often are tried in adult criminal courts.  In fact, for as long as there have been juvenile courts, mechanisms have existed to allow the transfer of some youth into the adult system 2 During the early 1990s, under a set of faulty assumptions about a coming generation of “super-predators,” 40 states passed legislation to send even more juveniles into the adult courts for a growing array of offenses and with fewer procedural protections.  The super-predators, wrote John J. DiIulio in 1995, “will do what comes ‘naturally’: murder, rape, rob, assault, burglarize, deal deadly drugs, and get high.”

This tough-on-crime era left in its wake state laws that still permit or even require drug charges to be contested in adult courts.  Scant data exist to track its frequency, but fully 46 states and the District of Columbia permit juveniles to be tried as adults on drug charges.  Only Connecticut, Kansas, Massachusetts, and New Mexico do not.  States have taken steps to close this pathway, including a successful voter initiative in California, Proposition 57.  Nationwide, there were approximately 461 judicial waivers (those taking place after a hearing in juvenile court) in 2013 on drug charges.  The totals stemming from other categories of transfer are not available.

From 1989 to 1992, drug offense cases were more likely to be judicially waived to adult courts than any other offense category.  Given the recent wave of concern over opiate deaths, it is reasonable to fear a return to this era, even as public opinion now opposes harsh punishments for drug offenses.

The ability of states to send teenagers into the adult system on nonviolent offenses, a relic of the war on drugs, threatens the futures of those teenagers who are arrested on drug charges, regardless of whether or not they are convicted (much less incarcerated) on those charges.  Transfer laws have been shown to increase recidivism, particularly violent recidivism, among those convicted in adult courts.  Research shows waiver laws are disproportionately used on youth of color. Moreover, an adult arrest record can carry collateral consequences that a juvenile record might not.  Since very few criminal charges ever enter the trial phase, the mere threat of adult prison time contributes to some teenagers’ guilty pleas. This policy report reviews the methods by which juveniles can be tried as adults for drug offenses and the consequences of the unchecked power of some local prosecutors.

December 7, 2016 in Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Oklahoma's top criminal court gives significant effect to Miller's limits on juve LWOP sentences

As reported in this local article, headlined "Resentencings ordered in two high-profile Oklahoma murder cases," the top criminal court in Oklahoma issues two big ruling about juve LWOP sentencing late last week. Here are the basics:

Oklahoma's youngest murderers can no longer be sentenced to life in prison without the possibility of parole unless they are found to be "irreparably corrupt and permanently incorrigible."  A divided Oklahoma Court of Criminal Appeals established the new restrictions in rulings made Friday in two high-profile murder cases.

The first ruling involved a murderer who was 16 at the time.  The second involved a murderer who was 17 at the time. Both must be resentenced, the appeals court ruled.  In both cases, the appeals court concluded the punishment of life without parole "is constitutionally infirm" because jurors were not presented evidence involving "important youth-related considerations."...

The appeals court came up with a new instruction to be given to juries in future murder cases involving a defendant who was under age 18 at the time of the crime.  Jurors will be told "no person who committed a crime as a juvenile may be sentenced to life without the possibility of parole unless you find beyond a reasonable doubt the defendant is irreparably corrupt and permanently incorrigible."

A murderer sentenced to a life term, with a chance at parole, is eligible for consideration under current law after spending 38 years and three months in prison.

I received an email about these rulings from The Campaign for the Fair Sentencing of Youth, and here is part of that email (with links to the decisions):

On Friday, Oklahoma’s highest criminal court applied Miller v. Alabama and Montgomery v. Louisiana to discretionary juvenile life without parole, affording an opportunity for resentencing to more than 45 people in Oklahoma sentenced to die in prison for crimes committed as children.

In two decisions, the court affirmed United States Supreme Court limitations on sentencing children to life in prison. These decisions should dramatically limit, if not prevent, the imposition of life sentences for children in Oklahoma going forward....

Oklahoma has joined a growing number of states that apply Miller and Montgomery to sentences of juvenile life without parole where the judge had discretion whether or not to impose life without parole, including Connecticut, Georgia, and South Carolina.

The Oklahoma Court of Criminal Appeals also required a finding of “irreparable corruption and permanent incorrigibility” beyond a reasonable doubt before life without parole can be imposed on children, consistent with the U.S. Supreme Court’s holding in Montgomery that life without parole is unconstitutional when imposed on the vast majority of children.

December 7, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, December 06, 2016

"The Link Between Race and Solitary Confinement: Men of color are overrepresented in isolation, while whites are typically underrepresented."

The title of this post is the full headline of this new Atlantic piece.  Here is how it gets started (with links from the original):

Stark disparities in prisoners’ treatment are embedded into criminal-justice systems at the city, county, state, and federal levels, and have disproportionate, negative effects on men of color. A new analysis from the Association of State Correctional Administrators and Yale Law School provides a fresh trove of information with which to explore the racial dynamics in state and federal prisons — specifically through their findings on solitary confinement.

“People of color are overrepresented in solitary confinement compared to the general prison population,” said Judith Resnik, a professor at Yale Law School and one of the study’s authors. “In theory, if race wasn’t a variable, you wouldn’t see that kind of variation. You worry. It gives you a cause to worry.”

The study concluded that, overall, black male prisoners made up 40 percent of the total prison population in those 43 jurisdictions, but constituted 45 percent of the “restricted housing population,” another way to describe those in solitary confinement.  In 31 of the 43, the percentage of black men who spent time in solitary wasn’t proportional to their slice of the general population — it was greater.  Latinos were also disproportionately represented in solitary: On the whole, 21 percent of inmates in confinement were Latino, even though this group constituted only 20 percent of the total population.  Overall, in 22 of the 43 jurisdictions, Latinos were overrepresented in relation to their general-population numbers.

The numbers look slightly different at the state level. In some states, the racial makeup of prisons and their solitary-confinement populations appeared more balanced — like in Kentucky, where white prisoners made up 70 percent of both the general and restricted-housing populations. Black prisoners represented 28 percent of those imprisoned and 27 percent of those in solitary. The dynamic is similar in the District of Columbia, with whites representing 2 percent of both the general and solitary-confinement populations, and blacks representing 90 percent and 94 percent of those groups, respectively.

By and large, similarly aligned figures can be found throughout the country. But in some states, the racial disproportions are startling.  

For example, in a handful of states where Latinos represent a large swath of the overall population, the racial disparities are significant. In California, Latinos made up 42 percent of the general prison population, but 86 percent of those in solitary confinement. Whites, by contrast, were 22 percent of the general population, but only nine percent of those in solitary. And in Texas, Latinos made up 50 percent of those in solitary, but only 34 percent of the overall prison population. Yet again, whites’ figures were lower: They represented 32 percent of the general prison population, but 25 percent of the population in solitary confinement. Mississippi, too, had dissimilar numbers among the racial groups.

December 6, 2016 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Monday, December 05, 2016

"No Bars: Unlocking the Economic Power of the Formerly Incarcerated"

The title of this post is the title of this intriguing little paper authored by Emily Fetsch for the Ewing Marion Kauffman Foundation and now available via SSRN. Here is the abstract:

One in three Americans has a criminal record.  Given the significant size of this population, the ability for these individuals to attain economic success after they leave prison has tremendous implications for our economy and economic mobility. But formerly incarcerated individuals face substantial obstacles to employment when they leave prison, from discrimination in hiring to occupational licensing requirements that exclude those with criminal records from specific professions.

This paper summarizes recent research on the employment of formerly incarcerated individuals, focusing in particular on the disproportionate effect of occupational licensing requirements.  The paper concludes with suggestions for policy changes that would reduce the friction this population experiences in the labor market.  These policies would help these individuals become more economically independent and have a positive impact on the economy as a whole.

December 5, 2016 in Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (4)

Saturday, December 03, 2016

Another detailed and depressing report on the harms of bad sentencing in the nation's capital

The Washington Post has run a series of articles under the title Second-Chance City seeking to thoroughly "examine issues related to repeat violent offenders in the District of Columbia." The latest lengthy article in the series, headlined "Second-chance law for young criminals puts violent offenders back on D.C. streets," tells a bunch of sad and sobering stories. It starts this way

Hundreds of criminals sentenced by D.C. judges under an obscure local law crafted to give second chances to young adult offenders have gone on to rob, rape or kill residents of the nation’s capital.

The original intent of the law was to rehabilitate inexperienced criminals under the age of 22.  The District’s Youth Rehabilitation Act allows for shorter sentences for some crimes and an opportunity for offenders to emerge with no criminal record.  But a Washington Post investigation has found a pattern of violent offenders returning rapidly to the streets and committing more crimes.  Hundreds have been sentenced under the act multiple times.

In dozens of cases, D.C. judges were able to hand down Youth Act sentences shorter than those called for under mandatory minimum laws designed to deter armed robberies and other violent crimes.  The criminals have often repaid that leniency by escalating their crimes of violence upon release.

In 2013, four masked men entered the home of a family in Northeast Washington, held them at gunpoint and ransacked the house.  One of the invaders, Shareem Hall, was sentenced under the Youth Act. He was released on probation in 2015.  Almost exactly a year later, Hall and a co-conspirator shot a 22-year-old transgender woman, Deeniquia Dodds, during a robbery in the District, according to charging documents.  It is unclear who pulled the trigger.  Police said the pair were targeting transgender females.  Dodds died nine days later.  “You’re telling me you can come back out on the streets and rob again, hold people hostage again, kill again — because of the Youth Act?” said Joeann Lewis, Dodds’s aunt.

Hall is one of at least 121 defendants sentenced under the Youth Act who have gone on to be charged with murder in the District since 2010, according to The Post’s analysis of available sentencing data and court records.  Four of the slayings, including the killing of Dodds, occurred while the defendants could still have been incarcerated for previous crimes under mandatory minimum sentencing, and 30 of the killings took place while the suspects were on probation.

Youth Act offenders accounted for 1 in 5 suspects arrested on homicide charges in the District since 2010, a period that has seen a recent surge in homicides and growing public concern about repeat violent offenders.  The cycle of violence has been largely shrouded from public view or oversight. D.C. judges do not track the use of the law, which provides a collection of benefits to violent felons that experts say does not exist anywhere else in the country.

After a young adult is convicted of a crime, the Youth Act allows judges to decide whether the offender can benefit from rehabilitation and should receive special treatment.  The law gives felons a chance to have their convictions expunged from the public record if they serve out their sentences or complete their probation.  Because of the way the law was written, Youth Act offenders also can avoid mandatory prison time for certain violent gun crimes.  The Post also found that judges applying the Youth Act generally give lighter sentences across the board.

The law was enacted in 1985 during the mayoral administration of Marion Barry (D), at a time when jails were being filled with young men charged with drug crimes, in an attempt to protect African American youths from the stigma of lengthy prison sentences. “We have a value in this city that youthful offenders should be rehabilitated,” said D.C. Mayor Muriel E. Bowser. “But I don’t think anybody expects leniency for violent criminals.”

The judges declined The Post’s requests for interviews and also declined to comment about specific cases. In a written statement, the judges said they weigh many factors in sentencing, including the ages of offenders and the effect of their crimes on the victims. “In considering whether to sentence a young person under the Youth Act, generally judges are aware that a felony conviction can create lifelong obstacles to becoming a good and productive citizen,” wrote Lynn Leibovitz and Milton Lee, who are, respectively, the presiding judge and deputy presiding judge of the criminal division of the D.C. Superior Court.

December 3, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (27)

Friday, December 02, 2016

"The Right to Redemption: Juvenile Dispositions and Sentences"

The title of this post is the title of this notable new paper authored by my colleague Katherine Hunt Federle and now available via SSRN. Here is the abstract:

The punishment of juveniles remains a troubling yet under-theorized aspect of the criminal and juvenile justice systems.  These systems emphasize accountability, victim restoration, and retribution as reasons to punish underage offenders.  In fact, American juvenile systems will remove the most egregious offenders to criminal courts for trial and sentencing.  The United States Supreme Court in recent years, however, has issued a number of opinions emphasizing that the Eighth Amendment requires that the punishment of children must account for their lesser moral culpability, developmental immaturity, and potential for rehabilitation.  State courts also have begun to reconsider their own dispositional and sentencing schemes in light of the Supreme Court’s jurisprudence.

The reality of ‘juveniles’ immaturity militates in favor of a right to redemption.  This Article begins by discussing the available data about the number and types of dispositions juveniles receive, waivers to criminal court, and the criminal sentences imposed.  The analysis also considers the collateral consequences for minors who are adjudicated delinquent or who are criminally convicted.  The discussion then turns to the effects of juvenile and criminal court involvement on children and the subsequent impact on life outcomes.  The analysis considers theoretical, jurisprudential, and constitutional implications of juvenile sentencing with a special emphasis on the Supreme Court’s recent decisions.  This Article concludes with the proposal for the contours of a right to redemption and its implications for reform to the current system and suggests strategies for the individual defense lawyer.

December 2, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Wednesday, November 30, 2016

Two new headlines from the same paper highlighting (inevitable?) sentencing disparities

As I opened my Google News feed and turned to my sentencing section, these two headlines from the Washington Post jumped out at me:

Here are some key passages from each piece. First, the latest on serial/mass rapist Darren Sharper:

Former NFL star Darren Sharper was sentenced to 20 years in prison on Tuesday for drugging and raping two women in Los Angeles.  The sentence came as part of a plea deal that saw Sharper sentenced to 18 years in prison in Louisiana in August for drugging and raping up to 16 women in four states, including California and Louisiana, as well as Arizona and Nevada.  Sharper will serve the sentences simultaneously.

Tuesday marked the end of Sharper’s sentencing hearings, but the emotional trauma he inflicted upon the victims of his sexual assaults lives on.  “I can only imagine myself lying there like a vegetable while he took advantage of my body without my permission,” one of the victims said at Tuesday’s hearing (via the Los Angeles Times).  “I have lost every bit of self confidence I’ve ever had and am always in fear while alone. It doesn’t matter whether it’s day or night, I can see a guy and automatically in my head think, ‘What if this guy tries to rape me?’ ”

And now another dispatch from the never-ending federal drug war:

When Lori Clare Kavitz’s sons were 3 and 4 years old, ... her husband ... grabbed a gun and killed himself in front of her dad.... The aftermath was hard. “My emotional trauma and fear of not being able to provide for [my sons] led me to choices that I will always regret,” she says. Her regretful decision-making was not of an uncommon variety: After her husband’s death, she got involved with the wrong guy. He started dealing meth from their home, and when he was arrested, the state went after her, too, casting her as his assistant and charging her with conspiracy to distribute meth.

The man who sold them the meth cooperated with prosecutors, was sentenced to 14 years in prison, and is now out. Her boyfriend got 20 years. Lori Kavitz got 24 years. “She kept her mouth shut, didn’t say anything,” her son, Collin, tells the Watch. “He opened his mouth and tried to pin it all on her.”

Kavitz hasn’t seen her two sons in more than a decade because it’s too expensive for them to travel more than a thousand miles to visit her in prison in a different state. “I have 3 grandchildren that I have never met as I am serving my time in Florida and I am from Iowa. Too far for young struggling families to travel,” Kavitz writes. She’s one of thousands of nonviolent drug offenders hoping to have their sentences commuted by President Obama before President-elect Donald Trump replaces him in office — less than two months from now.

November 30, 2016 in Offender Characteristics, Offense Characteristics | Permalink | Comments (2)

Tuesday, November 29, 2016

Making the case that the next Administration needs to demonstrate that "laws are not just for the little people"

Writing here in the National Review under the headline "A Memo for Attorney General Jeff Sessions," former Justice Department officials Robert Delahunty and John Yoo share some interesting advice for the likely next AG.  I recommend the lengthy piece in full, and here is just a taste:

Hillary Clinton’s alleged criminality was a centerpiece of the last election and may well have cost her the presidency. It was not very long ago that crowds at Trump rallies were chanting “Lock her up!” We can think of no earlier presidential contest in which a candidate’s alleged criminal wrongdoing was so central an issue in the voters’ decision-making. This is truly an unprecedented case.

Unless President Obama acts first to pardon Clinton, the task of balancing these considerations will be left to the new president and his attorney general. Our view is that President Trump should offer her a pardon. Just as with President Gerald Ford’s pardon of Richard Nixon, Clinton’s acceptance of that offer would be widely understood as a tacit admission, if not perhaps of proven criminal guilt, then at least of wrongdoing sufficient to justify prosecution. We think that the matter should rest there.

But even if that were to happen, there are, apparently, more ongoing criminal investigations into the affairs of the Clintons and their inner circle. The investigation that Comey suspended concerned Clinton’s use of a private server to transact governmental business involving classified materials. Media reports have indicated that there are no fewer than five other investigations under way. These include at least one investigation into whether the Clinton Foundation has committed financial crimes or been sullied by influence-peddling.

We believe that those investigations — which were begun under the Obama administration — should be pursued. And if in the end, the findings of those investigations justify bringing criminal charges against the vast network of Clinton helpers and aides, those charges should be brought and tried.... Trump is right to express a desire not to harm the Clintons: The criminal process should never be turned into a political vendetta or even appear to be one. But no one, and certainly not the powerful and politically connected, should be above the law — the Clintons included. Trump’s campaign pledges on that issue resonated with the American public. The law is not just for the little people, and the little people are watching....

Jeff Sessions will take the helm of a Justice Department that has been terribly compromised in other respects. He must act decisively to change its culture. Again, the Clinton “reverse Midas” touch — transforming gold into dross — was at work. Candidate Clinton publicly offered to retain Attorney General Lynch in office if she were elected, even while Lynch at the time was charged with overseeing criminal investigations into the Clinton e-mail and Foundation scandals. By not publicly declining that offer — in effect, a bribe — Lynch tainted the integrity of the investigations as well as the office of attorney general.

President Obama also undermined public confidence in the Justice Department. He maintained that he had learned of Clinton’s private server only when everyone else had. Yet later leaks revealed that he in fact had corresponded numerous times with Clinton through her off-the-record system. Obama also proclaimed Clinton not guilty of wrongdoing even while the investigation into the use of her private server was still open....

These incidents came towards the end of an eight-year period in which the honor of the Justice Department had been badly tarnished. Much of the damage occurred during the five-year stint of former attorney general Eric Holder, the first and only attorney general to be held in contempt of Congress. (Holder’s conduct was so egregious that even most House Democrats declined to vote against the contempt resolution.) Under Holder, the DOJ became thoroughly politicized, taking positions that were, frankly, absurd — on legal issues such as congressional voting representation for the District of Columbia, presidential recess-appointment power, or the War Powers Resolution. Holder’s Justice Department brought cases not on their legal merits but in order to target the administration’s perceived political or ideological opponents....

This election was about the place of law in American public life. The voters were rightly repelled by the performance of public figures, above all Hillary Clinton and her entourage, who acted as if they were above the law. Voters resented President Obama’s chronic refusal to enforce the law — whether in health care or immigration — when he found that it did not suit his political purposes. They seem to have forgiven Donald Trump for his alleged manipulation of the tax code because, even if dodgy, his actions were not illegal.

As president, Donald Trump owes it to his voters and to the American people as a whole to restore the public’s trust in its government. He must repair the contract between the people and its agents that his rival and his predecessor have shattered. And Attorney General Jeff Sessions needs to be a strong and stalwart presence at his right hand as the new president makes this happen.

November 29, 2016 in Criminal justice in the Trump Administration, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (19)

Saturday, November 26, 2016

Mississippi prosecutor to argue old Facebook post helps justify LWOP sentence for juve getaway driver

This local article about a forthcoming sentencing in a Mississippi state case, headlined "Facebook post to be used in sentencing," strikes me as a disconcerting example of the equivocal evidence some prosecutors will highlight in an effort to secure the most extreme of prison sentences even for offenders who seem to be anything but the most extreme of criminals. Here are the details:

Prosecutors will use a Facebook post from 2010 when Gerome Moore was 13 showing him in possession of a handgun and "arguably" displaying gang signs to try to show Moore should be sentenced to life without parole in the January 2015 shooting death of Carolyn Temple in Belhaven.  Moore was convicted of capital murder in September, but his sentencing is on hold. A capital murder conviction had meant a mandatory life sentence without the possibility of parole, but a 2012 Supreme Court ruling said judges must consider the unique circumstances of each juvenile offender....

Moore was 17 at the time of the crime. He didn't shoot Temple, but his gun was used. He and at least two others were driving around that evening looking for someone to rob. Prosecutors say they followed Temple's vehicle, a Mercedes, to her boyfriend's house in Belhaven. Once she got out her car and went to the curb to retrieve her boyfriend's garbage can, two of the individuals tried to take her purse. She resisted and one of them shot her. Prosecutors believe Moore stayed in the car and was the getaway driver, although he provided the weapon.

In court filings, Assistant District Attorney Randy Harris said, "The cumulative resume of Gerome Moore qualifies him for that exact sentence of life without parole." Harris said Moore's unwillingness to abide by the decent standards of society and to abide by the criminal laws began long Temple's shooting. In addition to the Facebook post, by the time Moore was 17, he would tell investigators he never went riding without his gun, according to Harris. Harris also talked about other crimes Moore was involved in as well as escaping from the Hinds County Detention Center after his arrest. He was later recaptured.

"Truth is that Moore was two months shy of attaining 18 years of age when this capital murder was perpetrated," Harris said. "Had the crime happened merely two months later, this discussion of the propriety of life without parole would not even be taking place as there would be no argument that without parole was an appropriate and legislatively approved sentence."

Moore's attorney, Aafram Sellers, argues his client shouldn't receive a sentence of life without parole. "Clearly, a child who did not actually kill or intend to kill anyone will not be among the uncommon and rare juvenile homicide offenders who might permissibly receive the state's harshest prison sentence," Sellers said.

Sellers said punishment of life in prison without parole would be disproportionate to the sentence of the shooter in the case, Antwain Dukes, who received a sentence of 25 years to serve.

To review, after a robbery went bad and resulted in the shooting of the victim, the robber who actually killed the victim received a sentence of 25 years, but Mississippi prosecutors now want the robber who only sat in the car during the shooting to receive an LWOP sentence.  And Mississippi prosecutors are citing to a Facebook post by the defendant at age 13 when arguing an LWOP sentence for the juvenile getaway driver is justified.  Hmmm.

November 26, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Tuesday, November 15, 2016

Some sentencing question after Georgia jury verdicts of guiltly on all counts of murder, child cruelty and sexting for Justin Ross Harris

9859581_GA horribly awful (and high-profile and very interesting) state criminal case resulted yesterday in a jury verdict of guilt on all counts.  This new CNN article, headlined ""Jury finds Justin Ross Harris guilty of murder in son's hot car death," provides some details about the case that has prompted some sentencing questions for me.  Here are excerpts (with emphasis added on points that prompt follow-up sentencing questions):

A jury in Georgia on Monday found Justin Ross Harris guilty of murder in the 2014 death of his 22-month-old son, Cooper. Harris, 35, was accused of intentionally locking Cooper inside a hot car for seven hours. On that same day, Harris was sexting with six women, including one minor, according to phone records.

In addition to three counts of murder, Harris was found guilty of two counts of cruelty to children for Cooper's death, and guilty of three counts relating to his electronic exchanges of lewd material with two underage girls.  "This is one of those occasions where actions speak louder than words," Cobb County Assistant District Attorney Chuck Boring said after the verdict. "He has malice in his heart, absolutely."

The trial, which spanned almost five weeks, was moved to the Georgia coastal town of Brunswick from Cobb County, outside Atlanta, after intense pretrial publicity. It was briefly interrupted by Hurricane Matthew. The Glynn County jury of six men and six women deliberated for 21 hours over four days.  Jurors considered the testimony of 70 witnesses and 1,150 pieces of evidence, including the Hyundai Tucson in which Cooper died in a suburban Atlanta parking lot.

Justin Ross Harris waived his right to testify in his own defense. Cobb County prosecutors argued that Harris intentionally locked Cooper inside his car on a hot summer 2014 day because he wanted to be free of his family responsibilities. Harris' lawyers claimed the boy's death was a tragic accident brought about by a lapse in memory. 

It was June 18, 2014, when Harris, then 33, strapped his son into a rear-facing car seat and drove from their Marietta, Georgia, home to Chick-fil-A for breakfast, then to The Home Depot corporate headquarters, where he worked. Instead of dropping Cooper off at day care, testimony revealed Harris left him in the car all day while he was at work.  Sometime after 4 p.m. that day, as Harris drove to a nearby theater to see a movie, he noticed his son was still in the car. He pulled into a shopping center parking lot and pulled Cooper's lifeless body from the SUV. Witnesses said he appeared distraught and was screaming. "'I love my son and all, but we both need escapes.' Those words were uttered 10 minutes before this defendant, with a selfish abandon and malignant heart, did exactly that," said Boring in his closing argument.

The prosecution argued that Harris could see his son sitting in his car seat in the SUV. "If this child was visible in that car that is not a failure in memory systems," Boring argued. "Cooper would have been visible to anyone inside that car.  Flat out."  If Cooper was visible, Boring said, "the defendant is guilty of all counts."  After the verdict, jurors told the prosecution that the evidence weighed heavily in their decision, Boring said.

Digital evidence showed that on the day his son died, Harris exchanged sexual messages and photos with six women, including one minor. State witnesses testified that Harris lived what prosecutors described as a "double life."  To his wife, family, friends and co-workers, Harris was seen as a loving father and husband. But unbeknownst to them, Harris engaged in online sexual communication with multiple women, including two underage girls, had extramarital sexual encounters in public places and paid for sex with a prostitute.

Harris' defense maintained that his sexual behavior had nothing to do with Cooper's death. "The state wants to bury him in this filth and dirt of his own making, so that you will believe he is so immoral, he is so reprehensible that he can do exactly this," said defense attorney H. Maddox Kilgore during his closing argument.  Kilgore argued that Cobb County police investigators focused only on matters that fit the state's theory and ignored all the evidence that pointed to an accident. "You have been misled throughout this trial," Kilgore told jurors.  The defense lawyer continued to maintain his client's innocence after the verdict. He said he plans to appeal the verdict. "When an innocent person is convicted there's been some breakdowns in the system and that's what happened here," Kilgore told reporters outside the courthouse. "From the moment we met Ross Harris we've never, ever once wavered in our absolute belief that he is not guilty of what he's just been convicted of."

The defense's key witness was Harris' ex-wife and Cooper's mother, Leanna Taylor. "Cooper was the sweetest little boy. He had so much life in him. He was everything to me," Taylor recalled, as she seemed to fight through tears. For two days, Taylor told jurors private details of her married life with Harris, saying they had intimacy problems and recounting Harris' struggles with pornography.  Marital struggles aside, Taylor described Harris as a "very involved" parent who loved their son. In her mind, she said, the only possible explanation was that Harris "forgot" Cooper and accidentally left him in the car.  Boring said it did not matter that Taylor declined to speak with the prosecutor's office and testified for the defense. "As far as proving the case we did not need her," he told CNN.

Harris is expected to be sentenced December 5. He could face life without parole, though Boring said the prosecution will speak with the family to determine what kind of sentence to ask for.

Especially for sentencing scholars and advocates like me who worry a lot about about white criminals being treated more leniently than similarly-situated or less culpable minority criminals, I have three follow-up sentencing questions based on this case and its forthcoming sentencing in a Georgia state court:

1.  Should we be troubled that the local prosecutor in this case apparently exercised his discretion not to pursue capital punishment in a case in which the white defendant was apparently guilty of intentionally boiling his 22-month son to death?

2.  Should we be troubled that Georgia sentencing provisions, if I am understanding the law properly based on this "'Truth in Sentencing' in Georgia" documentrequires a mandatory LWOP for an adult offender who commits two armed robberies, but only requires a mandatory 25-life for intentionally boiling a toddler to death?

3.  Should we be troubled that the local prosecutor in this case, who already strikes me as unduly lenient for not even pursuing a capital charge, is now apparently willing (after a jury conviction on all counts) to exercise his discretion to seek a more lenient sentence from the sentencing judge based on the sentencing desires of the (white) wife of the murderer?

November 15, 2016 in Celebrity sentencings, Death Penalty Reforms, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9)

Saturday, November 12, 2016

"How Prosecutors and Defense Attorneys Differ in Their Use of Neuroscience Evidence"

The title of this post is the title of this notable article authored by Deborah Denno now available via SSRN. Here is the abstract:

Much of the public debate surrounding the intersection of neuroscience and criminal law is based on assumptions about how prosecutors and defense attorneys differ in their use of neuroscience evidence.  According to some, the defense’s use of neuroscience evidence will abdicate criminals of all responsibility, while the prosecution’s use of that same evidence will unfairly punish the most vulnerable defendants as unfixable future dangers to society.

This “double-edged sword” view of neuroscience evidence demonstrates the concern that the same information about the defendant can either be mitigating or aggravating depending on who is raising it.  Yet empirical assessments of legal decisions reveal a far more nuanced reality, showing that the public beliefs about the impact of neuroscience on the criminal law can often be wrong.

This Article examines how courts respond to neuroscience evidence in capital cases when the defense presents it to argue that the defendant’s mental state at the time of the crime was below the given legal requisite due to some neurologic or cognitive deficiency.  Relying on data from my “Neuroscience Study” (which consists of all criminal law cases that addressed neuroscience evidence from 1992–2012), I examine thirty-nine capital cases in which the defense attempted to use neuroscience evidence to dismiss or diminish the defendant’s level of intent either at the guilt phase or the penalty phase, along with a corresponding rebuttal or counterargument from the prosecution.  I use a range of case examples to show how courts’ differing perspectives on what constitutes mitigating and aggravating evidence suggests that the “double-edged sword” framework is simplistic and, at times, misleading.

This Article concludes that the lack of consistency and guidance among lower mens rea cases seemingly hinders a more effective application of neuroscience evidence in intent determinations.  To remedy this problem, this Article endorses the “reasonable jurist” framework, which recognizes the value of case-by-case determinations and provides courts with a more realistic lens through which to assess the great variety of neuroscience factors.

November 12, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, November 11, 2016

How many veterans are among Prez Obama's 944 federal prison commutations? How many more veterans are clemency worthy?

Veterans-day-20131The question in the title of this post are inspired by today's national holiday, Veterans Day.  Here are some general data thoughts/realities as part of an effort to try to answer these questions:

1.  According to these latest BJS statistics, we can reasonably estimate that at least 5% of the current federal prison population are veterans.  The BJS report starts by noting that "In 2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities."  But a variety of demographic realities would suggest that veterans are probably underrepresented among the types of prisoners serving time in federal prison. 

2. So, to answer my first question based on this working estimate of at least 5%, we should expect that nearly 50 of the 944 federal prisoner commutations by Prez Obama have been to veterans.  But this is really a statistical guess because there could be direct or indirect reasons why veteran status made a candidate more likely to garner Prez Obama's attention or why the pool of long-sentenced drug offenders now only getting clemency these days are less likely to include veterans. 

3. And, to answer my second question based on this working estimate of at least 5%, we should expect that nearly 10,000 veterans make up of current federal Bureau of Prisons population which totals over 191,000.  If we were to entertain the supposition that only 1 out of every 100 current veteran federal prisoners are likely to be good candidates for clemency, that would still mean 100 current federal prisoners would now be commutation-worthy.  (And, if we want to think about all veterans with a federal conviction who might seek or merit a pardon, there could well be thousands of good veteran clemency candidate worth thinking about on this Veterans Day.)  

Though the day is still young, I am not expecting that Prez Obama will celebrate his last Veterans Day in the Oval Office by making a special effort to grant commutations or pardons to a special list of veterans.  But Prez-Elect Trump, who made taking care of the vets a consistent campaign theme, perhaps might be encouraged by sentencing reform advocates to plan to celebrate his future Veterans Days in the Oval Office by looking to use his clemency powers in this kind of special and distinctive way.  After all, a key slogan for this day is to "honor ALL who served," not just those who stayed out of trouble after serving.

Some very old prior related posts: 

November 11, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tuesday, November 08, 2016

Is the likely federal sentencing guideline range for "Bridgegate" defendants convicted last week at least 3 to 4 years in federal prison?

As noted in this prior post, late last week a federal jury returned guilty verdicts against Bridget Anne Kelly, the former deputy chief of staff to NJ Gov Chris Christie, and Bill Baroni, the former deputy executive director of the Port Authority of New York and New Jersey on seven federal criminal charges stemming from the so-called "Bridgegate" scandal.  This Wikipedia page provides lots of background on the scandal, and this lengthy New York Times article about the convictions provides these hints about the federal sentencing issues to now be debated as a February sentencing for Ms. Kelly and Mr. Baroni looms:

A federal jury convicted two former allies of Gov. Chris Christie on Friday of all charges stemming from a bizarre scheme to close access lanes at the George Washington Bridge to punish a New Jersey mayor who declined to endorse the governor’s re-election.  Though only the two defendants, Bridget Anne Kelly and Bill Baroni, were tried in the so-called Bridgegate case, the scandal surrounding the lane closings in September 2013 left Mr. Christie deeply wounded....

David Wildstein, who was installed as the governor’s enforcer at the Port Authority of New York and New Jersey, which operates the bridge, pleaded guilty to orchestrating the lane closings and became the prosecution’s chief witness....

Facing about 50 reporters and television cameras outside the federal courthouse here on Friday, the United States attorney for New Jersey, Paul J. Fishman, said that his office brought charges against only the people it believed a jury would find guilty beyond a reasonable doubt.  There was substantial documentary evidence, he said, to corroborate Mr. Wildstein’s testimony about Ms. Kelly and Mr. Baroni, once Mr. Christie’s top staff appointee at the Port Authority....

The convictions carry a maximum sentence of 20 years in prison, but under federal guidelines, Ms. Kelly and Mr. Baroni are likely to get far less time.  Mr. Fishman said Friday that under federal guidelines, Mr. Wildstein would be sentenced to 20 to 27 months in prison, but that he was likely to get “credit” from the judge for his cooperation. Prosecutors were likely to recommend longer terms for Mr. Baroni and Ms. Kelly, Mr. Fishman said, because they did not accept responsibility for their crimes and because prosecutors believe that they did not testify truthfully.

Judge Susan D. Wigenton set sentencing for Feb. 21.

I found at this link a copy of the plea agreement in which Mr. Wildstein agreed to plead guilty to two counts and to have his guideline calculation add up to an offense level 16 (including a three-point downward adjustment for acceptance of responsibility).  Such an offense level for a first offender accounts for his applicable guideline range being set at 21-27 months before he gets any further cooperation credit for his substantial assistance in the prosecution of Ms. Kelly and Mr. Baroni.  Assuming the same basic guideline calculations for Mr. Baroni and Ms. Kelly, but now without any benefit for acceptance of responsibility AND with a two-point enhancement for obstruction of justice based on testifying falsely, it seem they are facing an offense level of 21 (at least), and thus looking at an advisory guideline range of 37-46 months (at the lowest).

I can certainly imagine all sorts of arguments that could possibly be made by federal prosecutors to try to drive up the applicable guideline range further, but I suspect that USA Paul Fishman and his line prosecutors will be content to argue for a federal prison sentence in the range of three to four years.  I would also expect that defense attorneys for Ms. Kelly and Mr. Baroni will look for ways to contest any guideline range enhancement and will also advocate forcefully under the provisions of 18 USC 3553(a) for a sentence below whatever the guideline range is calculated to be. 

Because I am going to be turning this real case into a real-world teaching exercise in my sentencing class, I would be grateful to have informed (or even uniformed) folks provide any insights or ideas about how they expect the sentencing for Ms. Kelly and Mr. Baroni and Mr. Wildstein to play out in the week ahead.

Prior related post:

November 8, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (5)

Monday, November 07, 2016

Split Fourth Circuit panel concludes Virginia’s geriatric release program insufficient to save juve LWOP sentences from violating Graham

A Fourth Circuit panel today handed down a lengthy split decision today in LeBlanc v. Mathena, No. 15-7151 (4th Cir. Nov. 7, 2016) (available here), concerning the application of the Supreme Court's Eighth Amendment Graham ruling in Virginia.  Here is how the majority opinion by Judge Wynn gets started:

Graham v. Florida, 560 U.S. 48, 74 (2010), held that “the Eighth Amendment forbids the sentence of life without parole” for juvenile offenders convicted of nonhomicide offenses. Accordingly, the Supreme Court held that States must provide juvenile nonhomicide offenders sentenced to life imprisonment with “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 75.

Nearly a decade before the Supreme Court decided Graham, Respondent, the Commonwealth of Virginia, sentenced Petitioner Dennis LeBlanc to life imprisonment without parole for a nonhomicide offense he committed at the age of sixteen. In light of Graham, Petitioner sought postconviction relief from his sentence in Virginia state courts. The state courts denied Petitioner relief, holding that Virginia’s geriatric release program — which was adopted more than fifteen years before the Supreme Court decided Graham and will allow Petitioner to seek release beginning at the age of sixty — provides the “meaningful opportunity” for release that Graham requires.

Mindful of the deference we must accord to state court decisions denying state prisoners postconviction relief, we nonetheless conclude that Petitioner’s state court adjudication constituted an unreasonable application of Graham.  Most significantly, Virginia courts unreasonably ignored the plain language of the procedures governing review of petitions for geriatric release, which authorize the State Parole Board to deny geriatric release for any reason, without considering a juvenile offender’s maturity and rehabilitation.  In light of the lack of governing standards, it was objectively unreasonable for the state courts to conclude that geriatric release affords Petitioner with the “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” Graham demands. Id.  Accordingly, Petitioner is entitled to relief from his unconstitutional sentence.

Judge Niemeyer issued a lengthy dissent that gets started this way:

In affirming the grant of Dennis LeBlanc’s habeas petition brought under 28 U.S.C. § 2254, the majority holds that the Virginia Supreme Court concluded unreasonably that Virginia’s geriatric release program provided a meaningful opportunity for release to juveniles and therefore satisfied the requirements of Graham v. Florida, 560 U.S. 48 (2010).  Graham forbids sentencing juveniles to life in prison without parole for nonhomicide crimes.  In reaching its conclusion, the majority relies simply on its expressed disagreement with the Virginia Supreme Court’s decision in Angel v. Commonwealth, 704 S.E.2d 386 (Va. 2011), and effectively overrules it.  The Virginia court’s opinion, however, is demonstrably every bit as reasonable as the majority’s opinion in this case and should be given deference under § 2254(d)(1).

Especially because the "swing" vote on this panel came from a district judge sitting by designation, I think there is a decent chance this case might get further consideration by the Fourth Circuit sitting en banc. I also would expect Virginia to seek Supreme Court review if it does not seek or secure en banc review.

November 7, 2016 in Assessing Graham and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Sunday, November 06, 2016

"Life Without the Possibility of Parole for Juvenile Offenders: Public Sentiments"

The title of this post is the title of this new paper authored by Jennifer Gongola, Daniel Krauss and Nicholas Scurich. Here is the abstract:

The United States Supreme Court recently abolished mandatory life in prison without the possibility of parole (LWOP) for juvenile offenders, holding that the practice was inconsistent with the 8th amendment’s cruel and unusual punishment clause, and its “evolving standards of decency” jurisprudence. The Court explicitly left open the question of whether non-mandatory LWOP is consistent with these constitutional standards.

This paper examines the public’s sentiment concerning juvenile LWOP. An online sample (n = 599) weighted to be representative of the U.S. population was queried about juvenile LWOP as a general policy and in response to a specific case in which they had to impose a prison sentence on a juvenile convicted of murder. The age of the juvenile was experimentally manipulated. Overall, 31% of participants favored juvenile LWOP as a general policy while 55% were willing to impose juvenile LWOP in the specific case presented. The age of the juvenile moderated this effect, such that participants were more willing to impose LWOP on a 16-year-old than a 12-year-old both as a general policy matter and in response to the specific case vignette. A majority of participants were consistent in their preferred punishment across both frames, including 30% who selected LWOP.

Political affiliation was the only demographic variable that predicted consistency in preferred punishment across the two frames. Additionally, participants who consistently endorsed juvenile LWOP placed greater emphasis on retribution and deterrence as goals of punishment while individuals who evidenced inconsistent punishment preferences placed a greater emphasis on rehabilitation.

November 6, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (22)

Another big NYC white-collar sentencing produces another way-below-guideline sentence

This USA Today article, headlined "Wall Street fraud sentencing prompts tears and debate," provides the highlights of a high-profile federal fraud sentencing that took place in Manhattan on this past Friday. Here are some of the details:

It was an emotional federal court sentencing, with the future of an Ivy League-educated former private equity executive hanging in the scales of justice.  

The prosecution said Andrew Caspersen, a scion of a wealthy business family, should get as much as a 15-year-plus prison sentence for executing a Ponzi-like scam that collectively bilked about a dozen of his clients, family members, and his investment company out of roughly $46 million.  The defense said Caspersen never intended to steal and betray. Asking for leniency, his attorney, Paul Shechtman presented evidence to show the 40-year-old father of two had been gripped by a pathological gambling addiction.

On the bench in the 14th-floor Manhattan courtroom sat U.S. District Judge Jed Rakoff, a renowned legal independent and author of a recent essay that almost seemed to foreshadow the proceeding.  "Distinctions of intent frequently determine, as a matter of law, the difference between going to prison and going free," Rakoff wrote in The New York Review of Books in his examination of neuroscience and the law.  What ensued was a nearly three-hour debate over whether and how much gambling addiction should factor in the sentence — complete with references to "The Gambler," a short novel by Fyodor Dostoyevsky.

By the end, Caspersen and his wife, Christina, wept as they held one another in the courtroom.  Shechtman brushed away tears of his own.  And Manhattan U.S. Attorney Preet Bharara issued a statement that noted Caspersen had been sentenced — but made no comment on the punishment.

The prosecution attacked the gambling addiction defense from the start. Assistant U.S. Attorney Christine Magdo argued that 2014-2016 scam run by the Princeton University and Harvard Law School graduate had been carefully calculated. In a sentencing memo to the court, she noted that Caspersen fooled his roughly dozen victims by incorporating sham entities with names similar to real private equity firms.

The victims lost millions.  Some, investment professionals themselves, declined to present victim statements by name, fearing the reputational loss of being fooled.  Magdo added that Caspersen used much of the scam proceeds to pay the mortgage and two home equity credit lines on a Manhattan apartment, as well as a $3 million home in Bronxville, a wealthy suburb of New York City....

Shechtman submitted dozens of support letters to the court, including pleas for leniency from Caspersen's wife, friends, and even the doorman of his Manhattan co-op. The defense also turned to scientific and financial trading experts.  Dr. Marc Potenza, a Yale University School of Medicine psychiatry professor and mental health expert on addiction, examined Caspersen and reviewed his health records in preparation for testifying at the sentencing hearing. "Mr. Caspersen suffered from a severe gambling disorder, a mental illness, and there is little doubt that it contributed substantially to him losing his own money and seek money by fraud from others to continue on the same destructive path," Potenza wrote in a letter to the court....

Citing the experts' conclusions, Shechtman urged Rakoff to weigh the "tragic dimension" of Caspersen's gambling addiction.... Caspersen fought back tears as he addressed the court before being sentenced. "I have committed serious crimes of fraud, and have no one to blame but myself," he said. "I stand before you asking for mercy."...

After more than an hour of testimony and questioning of Potenza, Rakoff said he deemed it "more likely than not" that gambling addiction existed and could be a mitigating factor. Still, he stressed it must be weighed with other factors in the case. "It was a substantial fraud," said the judge. "It was a fraud that involved the deception of people who had a lot of faith in the defendant."

Ultimately, Rakoff sentenced Caspersen to four years in prison, followed by three years of supervised release, and nearly $28 million in restitution. "No purpose would be served by having him rot in prison for years on end," said the judge. He characterized federal sentencing guidelines that would allow the far longer sentence sought by prosecutors as "absurd." And, referring to the likelihood that some might question the leniency, Rakoff said outsiders didn't know all the facts of the case.

I cannot find any indication that Judge Rakoff has or plans to write up his sentencing conclusions in a formal opinion, but I sincerely hope he does.  For consistent and cogent sentencing even after Booker made the guidelines advisory, it is critical in my view not only for federal district judges to consider thoughtfully all the 18 USC 3553(a) sentencing factors, but also for them to produce written opinions to explain how they weighed those factors in high-profile cases in which they significantly deviate from the ranges suggested by the guidelines.

November 6, 2016 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, White-collar sentencing, Who Sentences? | Permalink | Comments (2)

Friday, November 04, 2016

"Bridgegate" now a federal sentencing story after two former New Jersey officials convicted on all federal counts after lengthy jury deliberations

As regular readers know, I tend to avoid discussing high-profile criminal prosecutions unless and until they become interesting or important sentencing stories.  And then, perhaps problematically, once they become notable sentencing stories, I tend to discuss the cases too much.  These tendencies are going to be on full display now that the long-running so-called "Bridgegate" scandal this morning because a great sentencing story. This CNN piece explains, while concluding with an accurate and ridiculous sentencing point:

Two former officials linked to New Jersey Gov. Chris Christie's office were found guilty on all charges Friday in connection with the closure of lanes in 2013 on the George Washington Bridge in an act of alleged political retribution, the fallout for which has come to be known as Bridgegate. The news comes after nearly five days of deliberations from the jury.

Bridget Anne Kelly, the former deputy chief of staff to Christie, and Bill Baroni, the former deputy executive director of the Port Authority of New York and New Jersey, both faced seven counts of various charges including conspiracy, fraud, and civil rights deprivation.

The verdict is another setback in Christie's political career, following a controversy that spans nearly three years and put a significant dent in the Garden State Republican's presidential ambitions. Christie is heading planning behind Republican nominee Donald Trump's transition if he wins the presidency. CNN has reached out to the Trump campaign for comment and not yet gotten a response.

Prosecutors allege that the lane closures on the George Washington Bridge were part of a deliberate effort to punish the Democratic mayor of Fort Lee, New Jersey, who did not endorse the Republican incumbent Christie in his 2013 re-election bid.  Emails and text messages released in January of 2014 form the basis of the charges. In one particularly damning email, Kelly told former Port Authority official David Wildstein, "Time for some traffic problems in Fort Lee."  Kelly later said her messages contained "sarcasm and humor," and she claims that she had told Christie about traffic problems resulting from a study a day prior to sending the email....

Kelly and Baroni each face a maximum sentence of 86 years, according to Paul Fishman, the federal prosecutor in the case.

Though I am disinclined to accuse federal prosecutors of "overcharging" unless and until I know all the facts, the simple fact that the conviction on all counts here even presents the possibility of a sentence of 86 years in prison leads me to be more than a bit suspicious of how the feds approached this case. That concern aside, I feel pretty certain predicting (1) that now-convicted federal felons Bridget Anne Kelly and Bill Baroni are unlikely to be sentences to more than a few years in prison, and (2) that federal prosecutors are going to be inclined to ask for a pretty lengthy prison sentence for these two because they had the temerity to contest their guilt and put the feds through the bother of a lengthy trial, and (3) that a low-profile, high-impact legal question for Kelly and Baroni is whether they will be given bail pending what could be very lengthy appeals of their multiple convictions.

I have not followed this case closely enough to even begin to figure out what the advisory guideline calculations might look like in these cases, but I would love to hear from some informed folks about what they think Bridget Anne Kelly and Bill Baroni are now facing, formally or informally, as this long-running scandal becomes a fascinating federal sentencing case.

November 4, 2016 in Campaign 2016 and sentencing issues, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (9)

Monday, October 31, 2016

"Defendant in U.S. opioid kickback case claims constitutional right to smoke pot"

The title of this post is the headline of this notable new argument about a notable motion filed in federal district court case. Here are the details:

A U.S. ex-pharmaceutical sales representative accused of paying kickbacks to induce doctors to write prescriptions for an opioid drug is asserting he has a constitutional right to continue smoking marijuana so he can remain clear-headed for his defense.

In a filing Friday, lawyers for Jeffrey Pearlman asked a federal judge for the U.S. District Court in Connecticut to modify his bail conditions so that he can continue using marijuana that was prescribed to him by a New Jersey doctor to help him kick his opioid addiction.  "Forcing him off the medical marijuana and forcing him to return to addictive opioids would impair his Sixth Amendment right to participate fully in his defense and his Fifth (Amendment) right to due process," his attorneys Michael Rosensaft and Scott Resnik of Katten Muchin Rosenman LLP wrote.

The novel request is one of only at least three such attempts in a federal court to permit the use of medical marijuana.  It is possibly the only motion of its kind to assert a Sixth Amendment defense that the failure to permit medical marijuana use could re-trigger an opioid addiction and impede a person's ability to participate in his own defense....

A variety of state laws have legalized marijuana for medicinal use, but federal law still prohibits it. The drug is classified as a Schedule I substance, meaning it is addictive and serves no medical purpose. Many opioids, by contrast, fall under Schedule II, meaning they are addictive, but have medical uses.

Pearlman, a former Insys Therapeutics, was charged criminally in September for allegedly arranging sham speaker programs designed to encourage medical professionals to write prescriptions for a fentanyl spray.  His lawyers say Pearlman became addicted to opioids used to treat severe back and leg pain and the drugs made him "foggy" and unable to think clearly.

After being prescribed marijuana in August, they said, his pain has subsided and he is able to "think more clearly."  Whether the judge will grant Pearlman's request remains to be seen.  Two defendants in other federal courts previously lost their bids to continue using medical marijuana, though the facts and circumstances in those cases were different.

In this case, the U.S. Attorney's Office has not opposed the request.  A spokesman for the office declined to elaborate further.

There are so many drug war ironies baked into this story, I am not sure I know where to start my fuzzy commentary on the highlights of this case. For now, I will be content to note the remarkable fact that the U.S. Attorney's Office's has here not opposed a request by a federal fraud defendant to be able to break federal drug laws while on bail.

October 31, 2016 in Marijuana Legalization in the States, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Friday, October 28, 2016

"Should 25-Year-Olds Be Tried as Juveniles?"

The question in the title of this post is the headline of this new lengthy New Republic article, which includes these excerpts:

Over the past year, several states — including Vermont, Illinois, New York, and Connecticut — have debated laws that would change how the justice system treats offenders in their late teens and early twenties.  It remains the case that in 22 states, children of any age — even those under ten — can be prosecuted as adults for certain crimes.  “Raise the Age” campaigns across the country are pushing for legal changes in order to treat all offenders under 18 as juveniles. But some advocates and policymakers are citing research to argue 18 is still too young, and that people up to the age of 25 remain less than fully grown up.

Some of the most compelling evidence comes via magnetic resonance imaging, or MRI.  In 2011, brain researchers Catherine Lebel and Christian Beaulieu published a study of 103 people between the ages of five and 32, each of whom received multiple brain scans over the course of six years.  The researchers were looking for changes in white brain matter, a material that supports impulse control and many other types of cognitive functioning....  Altogether, the research suggests that brain maturation continues into one’s twenties, and even thirties....

Researchers are using the term “post-adolescence” or “extended adolescence” to describe this period of development in one’s twenties and early thirties. Social change is as important as biological change in understanding why some people in this age group are drawn to crime. Individuals who are “disconnected” — neither working nor in school — are more likely to get in trouble with the law.  While fewer young women are disconnected today than in previous decades, the opposite is true for young men....

Experts used to believe that “adult onset” criminals, or those who get in trouble for the first time in their twenties or older, were more likely than juvenile offenders to come from affluent backgrounds, and to have higher intelligence. New research questions those assumptions....

If people in their twenties are a lot like adolescents socially and biologically, should they really be considered full adults under the law?  Many advocates who work directly with this population say no.  “For many years, the idea of how to achieve public safety with this group was you want to lock them up, protect the community by not having them around,” said Yotam Zeira, director of external affairs for Roca, a Massachusetts organization that provides counseling, education, and job training to 17- to 24-year-old male offenders.  “The sad reality is that after you lock them up, nothing gets better. Public safety is not really improved. Prosecutors know they are prosecuting, again and again, the same people.”...

While politically palatable, young adult prisons may not be all that successful in decreasing reoffending.  Research shows that even detention in a juvenile facility is “criminogenic,” meaning it makes it more likely that a person will reoffend, compared to a juvenile who committed a similar crime, but was not incarcerated.

Beyond politics, one of the challenges of asserting that 18- to 25-year-olds are not full adults is that science shows some people in this age group are much more mature than others, with more static brains.  “You can’t look at a brain scan from someone you don’t know and say that person is 18,” said Lebel, the brain researcher.  “You can pick out any age, whether it’s five or 30, and you see people are distributed over a wide range.”

Moffitt, the psychologist, agrees that the policy implications of the new research are far from clear. “In our justice system, it has to be the same rule for everyone for it to be just and fair,” she said. “There will always be the sort of very serious, early onset kind of offenders that ... will have a crime career as a lifestyle.” There is also a “larger group of young people who are milling around, being young, getting in trouble, annoying everyone.  But young people have always done that. You don’t want them to get a criminal record that prevents them from getting a job.” The problem, Moffitt added, is that “as long as you make a cut point based on age, you are treating both groups the same.”

October 28, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (6)

Thursday, October 27, 2016

Significant new report calls for closing all traditional youth prisons due to their inefficacy

This recent item from the Harvard Gazette, headlined "Youth justice study finds prison counterproductive: New report documents urgent need to replace youth prisons with rehabilitation-focused alternatives," spotlights a significant new report concerning the way juvenile offenders are punished. Here are excerpts:

A new report, published by Harvard Kennedy School’s Program in Criminal Justice Policy and Management (PCJ) and the National Institute of Justice (NIJ), documents ineffectiveness, endemic abuses, and high costs in youth prisons throughout the country.  The report systematically reviews recent research in developmental psychology and widespread reports of abuse to conclude that the youth prison model should be replaced with a continuum of community-based programs and, for the few youth who require secure confinement, smaller homelike facilities that prioritize age-appropriate rehabilitation.

The authors, who are leading youth justice researchers and former youth correctional administrators, find that the current youth prison model, which emphasizes confinement and control, often exacerbates youth trauma and inhibits positive growth while failing to address public safety.  Rather, the paper argues, programs work best when youths are in their home communities with rehabilitative programs or in smaller, homelike facilities that promote opportunities for healthy decision-making and development. Corrections agencies should provide a range of options depending on the individual’s needs, from smaller secure facilities to noncustodial programs.

Annual youth imprisonment costs are approximately $150,000 per individual, yet recidivism rates remain close to 70 percent. The report examines the experiences of several states that have pursued alternative models and finds community-based approaches can reduce recidivism, control costs, and promote public safety.

“Youth in trouble need guidance, education, and support, not incarceration in harmful and ineffective youth prisons,” said PCJ Senior Fellow Vincent Schiraldi, a co-author of the report. Previously, Schiraldi directed juvenile corrections in Washington, D.C., and served as commissioner of probation in New York City.  “We now know from research and on-the-ground experience that youth prisons are not designed to best promote youth rehabilitation.  This report offers concrete alternatives for policymakers across the country to maintain public safety, hold young people accountable, and turn their lives around.”

“Juvenile-justice systems must have the clear purpose of giving each youth the tools he or she needs to get on the right path to a successful adulthood and to reintegrate into the community,” said Patrick McCarthy, president and chief executive officer of the Annie E. Casey Foundation and a co-author of the report.  Like Schiraldi, McCarthy is a former director of youth corrections — in his case, in Delaware.  “By closing traditional youth prisons and leveraging increased political will to reform our country’s dependence on incarceration, states can use the savings to begin implementing a new, more effective approach to serving young people.”

This report, titled “The Future of Youth Justice: A Community-Based Alternative to the Youth Prison Model,” is available in full at this link.  And here is a key paragraph from its opening pages:

Whether the benefits and costs of youth prisons are weighed on a scale of public dollars, community safety, or young people’s futures, they are damaging the very people they are supposed to help and have been for generations. It is difficult to find an area of U.S. policy where the benefits and costs are more out of balance, where the evidence of failure is clearer, or where we know with more clarity what we should be doing differently.

October 27, 2016 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, October 26, 2016

Has DOJ's "Smart on Crime" initiative had a big impact in federal white-collar sentencing outcomes in recent years?

It has now been more than full three years since then-Attorney General Eric Holder made his historic speech to the American Bar Association (reported here and here) about excessive use of incarceration in the United States.  In that speech, AG Holder announced the US Justice Department's "Smart on Crime" initiative while making the case that "too many Americans go to too many prisons for far too long and for no good law enforcement reason" and that "widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable." At the time, and subsequently as a result of officials' comments (including 2015 remarks by then AG Holder and 2016 statements by now AG Loretta Lynch and Deputy AG Sally Yates), much has been made about the impact of DOJ's "Smart on Crime" initiative on the case processing and sentencing of federal drug offenders.

But recently, as the question in the title of this post suggests, I have been thinking about, and wondering if there is a good way to assess, the possible impact of DOJ's "Smart on Crime" initiative on the case processing and sentencing of white-collar offenders.  Critically, as I have noted to a number of courts in a number of ways in a number of settings, DOJ's public "SMART on CRIME" materials uses a lot of language that applies to, and should impact, how non-violent white-collar offenders are sentenced.  For example, DOJ has stressed the importance of alternatives to incarceration for all non-violent offenders while advocating a "shifting away from our over-reliance on incarceration" to reflect the reality that "[f]or many non-violent, low-level offenses, prison may not be the most sensible method of punishment." And AG Holder's speech was not only focused on drug offenses or offenders when he emphasized excessive incarceration "comes with human and moral costs that are impossible to calculate," and when he stressed that "the judiciary [can] meet safety imperatives while avoiding incarceration in certain cases."

Notably, as some links above highlight, DOJ officials have in 2015 and 2016 documented and promoted how DOJ's "Smart on Crime" initiative has impacted the case processing and sentencing of federal drug offenders.  But, perhaps unsurprisingly in these political times, DOJ officials have not said a word (at least that I have seen) about how DOJ's "Smart on Crime" initiative might be impacting white-collar cases (or really any other non-drug cases).

Against that backdrop, I took another look this week at recent US Sentencing Commission data published through its great Quick Facts series on Theft, Property Destruction, & Fraud and Tax Fraud.  These two reports seem to cover, roughly speaking, the pools of white-collar cases I have in mind that might be readily impacted by "Smart on Crime" talk about reduced reliance on lengthy terms of imprisonment.  And, perhaps significantly, two notable parallel sentencing "trends" were reported in these USSC documents:

These two data notes are not, of course, conclusive qualitative proof that DOJ's "Smart on Crime" initiative has had a big impact on federal white-collar sentencing outcomes in recent years.  But it does suggest something is helping to "move the sentencing needle" in these kinds of cases in recent years.  Relatedly, I would love to hear in the comments or some other way any and all reports (dare I say "qualitative" evidence) from white-collar sentencing practitioners concerning whether they think what AG Holder said and DOJ did as part of its "Smart on Crime" initiative back in 2013 is having a continual tangible impact on case processing and sentencing in non-violent fraud and other white-collar cases.

October 26, 2016 in Criminal justice in the Obama Administration, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3)

Two interesting reviews of the (in)application of Graham and MIller in two states

In my upper-level sentencing course, we are now discussing the past, present and future of Eighth Amendment jurisprudence placing limits on the imposition of prison terms.  Of course, this discussion now culminates in a review of the Supreme Court's recent work in Graham v. Florida and Miller v. Alabama and their continuing fallout.  Conveniently, just this past weekend, two different newspapers in two different states published these two articles on how that fallout is playing out: 

This passage from the first of these articles highlights some reasons why, even years after Graham and Miller were decided and required resentencing of certain juvenile offenders, most of these offenders are still going to be spending many decades in prison before even having a chance at release:

In striking down these harsh sentences, the Supreme Court “obviously was concerned, No. 1, about locking kids up and throwing away the key,” said Marsha Levick, Philadelphia attorney and co-founder of the Juvenile Law Center. “The court was very clear that it believes kids are truly different.”  Indeed Justice Elena Kagan has written that, “given all that we have said … about children’s diminished culpability, and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”

But in Courtroom 12, Circuit Judge John H. Skinner was unmoved.  Despite hundreds of hours of legal work, stacks of documents and a morning of arguments, the judge told Thomas, “I haven’t really changed my mind at all as far as what you should get in this case.”

So Thomas, the youngest child in a tight-knit military family, was sentenced again to 40 years.  This time, there will be a review in front of a judge and chance for release after 15 years, a provision that brings the penalty into compliance with state law.

Scenes like this one in a Jacksonville suburb are playing out around the state and across the country as judges resentencing juvenile offenders continue to issue lengthy sentences that advocates say defy the intent of the Supreme Court.

It will take years for the courts to work through the 58 Duval County homicide cases in which the juveniles’ original sentences have been deemed unconstitutional. Preparing for a resentencing hearing is intensive, and an area where the case law is constantly evolving.

But if the results from some of the earliest resolved Jacksonville cases are any indication, judges will continue to hand down long punishments. In the nine cases in which teens were first sentenced to life for childhood crimes that weren’t murder, seven of the defendants will be 60 or older when they are released.

October 26, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Tuesday, October 25, 2016

"Assessing the Impact of Johnson v. United States on the Void-for-Vagueness Doctrine"

The title of this post is the title of this effective and extensive new Casetext essay authored by Carissa Hessick. It starts and ends this way:

Johnson v. United States, 135 S. Ct. 2551 (2015), held that the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague.  Johnson generated a large amount of litigation in the federal courts.  Less than a year after it was decided, the Supreme Court decided another Johnson case, Welch v. United States, 136 S. Ct. 1257 (2016), which held that the rule in Johnson should be applied retroactively to those defendants whose convictions and sentences have already become final.  The Supreme Court has also agreed to hear two new Johnson cases in the 2016 Term.

Johnson raised important constitutional doubts about federal statutes that employ the so-called “categorical approach” to classifying criminal conduct, as well as doubts about certain Federal Sentencing Guidelines.  This short essay describes Johnson and explores the Johnson-related issues that the Court will hear this Term....

Johnson v. United States is of the most cited U.S. Supreme Court cases from recent Terms.  Johnson obviously affected the large number of defendants who were sentenced under the residual clause of the Armed Career Criminal Act.  It may, however, have a lasting impact on the vagueness doctrine itself.  By questioning the viability of the categorical approach and by clarifying that the doctrine applies also to laws that fix sentences, Johnson has called into doubt the constitutionality of other federal criminal laws and various Federal Sentencing Guidelines.  We will have to await the decisions in Lynch v. Dimaya and Beckles v. United States in order to fully assess the legacy of Johnson.  If the government loses those cases, then we are likely to see a further challenges to laws that fall within the long shadow of Johnson.

October 25, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Monday, October 24, 2016

Former Pennsylvania AG sentenced to 10-23 months in prison following jury convictions for perjury and obstruction of justice

I have not closely followed developments surrounding the political downfall and criminal prosecution of former Pennsylvania Attorney General Kathleen Kane.  But today this matter involved some interesting sentencing stories and drama, as reported via this lengthy local article headlined "Despite plea for leniency, Kane gets 10-23 months in jail."  Here are excerpts:

Former Pennsylvania Attorney General Kathleen Kane was sentenced Monday to 10 to 23 months in jail for orchestrating an illegal news leak to damage a political enemy, capping a spectacular downfall for a woman once seen as one of the state's fastest-rising stars.

"The case is about ego, ego of a politician consumed by her image from Day 1," Judge Wendy Demchick-Alloy told Kane at the end of a five-hour hearing in Norristown. "And instead of focusing solely on the business of fighting crime, the focus was battling these perceived enemies . . . and utilizing and exploiting her position to do it."

A tearful Kane pleaded for leniency, urging the judge to consider the impact on her sons. "I would cut off my right arm if they were separated from me and I from them," she said. "Please sentence me and not them."   But Demchick-Alloy was not swayed. "It's a shame that they had to go through all of this," she told Kane. "But that's a decision you made, not this court."

Unable to immediately post $75,000 bail, Kane was led in handcuffs from the courtroom to the Montgomery County Correctional facility in Eagleville.  She was released hours later — and might not have to return anytime soon. She will remain free on bail until she exhausts her state appeals, a process that could take months.

Still, the sentencing marked a bitter end to a career that drew national attention after Kane, a political neophyte and Scranton-area prosecutor, in 2012 became the first Democrat and woman to be elected as attorney general of Pennsylvania. Over hours on Monday, the judge heard Kane's supporters — including her son — extol her accomplishments and describe how devastating her conviction has been.

But Montgomery County prosecutors countered by calling to the stand Kane's current and former colleagues, who testified how she let a personal feud and paranoia poison the state's top law enforcement office and plunge it into disarray.

Erik Olsen, a top prosecutor, said he was thrilled when Kane won election, thinking her victory would bring a much-needed fresh perspective to an office he said had at times been "misogynistic and mean-spirited."  Instead, he testified, "through a pattern of systematic firings and Nixonian espionage, she created a terror zone in this office."

Kane's first year was marked by political and public relations successes.  She drew attention for her stands in support of marriage equality and gun control and for crippling Republican Gov. Tom Corbett's move to privatize the lottery — all positions her lawyer cited Monday in arguing for house arrest.  But after her star began to dim in 2014, she leaked confidential grand jury material to a newspaper in a bid to embarrass a political enemy, and then lied about her actions under oath. The ensuing two years became a bitter war, often played out through legal filings or public statements, that at times entangled government officials, Supreme Court justices, and the legislature.

At a trial in August, a jury found her guilty of perjury, obstruction and other charges.  She resigned a day later.

In her plea to the judge, Kane did not directly apologize for her crimes but rather for the consequences of her actions, saying she never intended to hurt anyone and was sorry if Pennsylvanians had lost a sense of trust in the attorney general's office. But her appeal for house arrest was a personal one: A 50-year-old mother in the throes of a divorce, she said a sentence sending her to prison could devastate her sons, 14 and 15....

Kane's lawyer, Marc R. Steinberg, said Kane's unprecedented fall from grace had been a punishment in itself. "She stands a convicted felon subject to public shame and public humiliation," he said.  Steinberg also argued Kane could be in danger behind bars, a prediction echoed by Frank V. DeAndrea Jr., a former Hazleton police chief who raised the specter of drug gangs ordering a prison hit and told the judge incarceration could be a "death sentence" for the former prosecutor.

Demchick-Alloy retorted: "When you unfortunately dirty yourself with criminal behavior, you assume that risk."

Prosecutors had sought a stiff prison term, pointing to the impact of Kane's crimes and the office culture of fear and paranoia that developed under her tenure. A former state prosecutor, Clarke Madden, testified that Kane's wrongdoing caused the State Police and the FBI to refuse to cooperate with their office, discouraged victims and witnesses from being helpful to their cases and led judges and defense lawyers to subject prosecutors to sarcastic and sniggering remarks....  After the sentencing Monday, Montgomery County District Attorney Kevin R. Steele and fellow prosecutor Michelle Henry told reporters they were satisfied with the outcome. "We suggest that is a significant sentence," Steele said. "Nobody is above the law."

October 24, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (2)

Friday, October 21, 2016

"Status Courts"

The title of this post is the title of this notable new paper by Erin Collins now available via SSRN. Here is its abstract:

This article identifies and analyzes a new type of specialized “problem-solving” court: status courts. Status courts are criminal or quasi-criminal courts dedicated to defendants who are members of particular status groups, such as veterans or girls.  They differ from other problem-solving courts, such as drug or domestic violence courts, in that nothing about the status court offender or the offense he or she committed presents a systemic “problem” to be “solved.”  In fact, status courts aim to honor the offender’s experience and strengthen the offender’s association with the characteristic used to sort him or her into court.

The article positions status courts as a troubling development in the evolution of problem-solving justice, in particular, and criminal justice reform, generally.  It reveals that status courts institutionalize the notion that certain offenders, by virtue of their inclusion in a particular status group, deserve better treatment than others.  This “moral sorting” provides an expressive release that may, counterintuitively, disincentivize widespread systemic reform.

And yet, while status courts present cause for concern, they also advance a positive, and possibly transformative, notion: that some individuals commit criminal offenses, at least in part, because of the influence of external factors beyond their control. In this way, status courts challenge the retributive notion that criminal offenders are wholly independent, rational actors and counterbalance the othering effect of many current criminal justice practices.  As the rise of retributive ideals played a prominent role in ramping up the penal machinery over the past few decades, embracing the more contextual, complicated conceptualization of the criminal offender status courts advance can temper the tendency to overincarcerate.

October 21, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, October 20, 2016

Local Montana judge being assailed for short jail sentence given to father who raped 12-year-old daughter

The latest controversially lenient sexual offense sentencing garnering social and traditional media attention comes from Montana, and this Washington Post article provides some of the notable details under the headline "Father who ‘repeatedly raped his 12-year old daughter’ gets 60-day sentence. Fury erupts." Here are excerpts:

In the case of Judge John McKeon, as of early morning Wednesday, almost 20,000 people had signed a Change.org petition calling for his impeachment for the 60-day sentence he gave a Glasgow, Mont., man who pleaded guilty to repeatedly raping his prepubescent daughter. “A father repeatedly raped his 12-year old daughter,” Deputy Valley County Attorney Dylan Jenson said during an Oct. 4 sentencing hearing. “It’s time to start punishing the judges who let these monsters walk our streets,” read the petition.

Prosecutors had recommended a mandatory 25-year sentence, 100 years with 75 suspended, which is what state law calls for. Instead, though, Judge McKeon handed down a far lighter sentence: a 30-year suspended prison sentence, which means the man will only serve it if he fails to meet the conditions of his probation.

Among those conditions, which McKeon called “quite rigorous,” was the requirement for the man to register as a sex offender, the Glasgow Courier reported. He also cannot access pornography and has limited access to the Internet. In addition, the man will serve 60 days in jail, but McKeon gave him credit for the 17 days he already served, meaning he’ll only spend another 43 days in jail....

In most of these controversial cases, the judges under siege tend to remain silent. What makes McKeon’s case unusual is that he has chosen to defend himself in public. In an email to the Associated Press, McKeon said he had several reasons for handing down the seemingly light sentence.

The judge claimed that news coverage obscured state law by failing to mention an exception to the mandatory 25-year prison sentence. According to McKeon, the law allows those arrested for incest involving someone under 12 years old to avoid prison if a psychosexual evaluation finds that psychiatric treatment “affords a better opportunity for rehabilitation of the offender and for the ultimate protection of the victim and society.” The judge wrote this is one of Montana’s attempts “to encourage and provide opportunities for an offender’s self-improvement, rehabilitation and reintegration back into a community.”

In the note to the AP, McKeon also referenced letters written to him by the victim’s mother and grandmother. Both letters requested the convicted man not be sentenced to prison. The victim’s mother, who walked in on the man sexually abusing her daughter, wrote that the man’s two sons love him and she wanted his “children have an opportunity to heal the relationship with their father,” according to McKeon.

The victim’s grandmother echoed this, calling the man’s behavior “horrible” but stating that the man’s children, “especially his sons, will be devastated if their Dad is no longer part of their lives.”

For all these letters defending the convicted man, though, Deputy Valley County Attorney Dylan Jensen told the AP that no one spoke on behalf of the victim, a 12-year-old girl, at Friday’s sentencing hearing. The petition to impeach McKeon highlighted this fact. “No one spoke on behalf of the 12 year old child at trial,” it read. “No one. The victim was not given justice, but instead will have to live with the fear that she still has to face her rapist in their community. ”

McKeon’s email concluded, “All district judges take an oath to uphold the Constitution and laws of this state. These constitutional provisions and laws include certain fundamental legal principles that apply at sentencing, including a presumption of innocence for unproved criminal allegations, the varying sentencing policies and the government’s burden to counter evidence supporting an exception to mandatory sentence.”...

McKeon, who has served as a Montana state judge for 22 years, is retiring next month, according to the Associated Press. Considering that an impeachment in Montana, according to the National Center for State Courts, requires a “two-thirds vote of the house of representatives and [a] convict[ion] by a two-thirds vote of the senate,” the point is fairly moot — there simply isn’t enough time to impeach him.

October 20, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)

Tuesday, October 18, 2016

"Children are Different: The Abolition of Mandatory Minimum Sentencing in Florida"

The title of this post is the title of this short essay by Paolo Annino now available via SSRN. Here is the abstract:

This essay argues that juvenile mandatory minimum sentences violate the Eighth Amendment based on the US Supreme Court's Miller v. Alabama requirement of individualized assessment and the Iowa Supreme Court's State v. Lyle application of individualized assessment to all juvenile sentencing.  This essay discusses the issue of juvenile mandatory minimum sentencing in the context of recent Florida decisions.

October 18, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Monday, October 17, 2016

Federal judge troubled by how Philadelphia DA is dealing with post-Miller resentencing

This interesting local article, headlined "Federal judge blasts Philly DA's 'juvenile lifers' policy," highlights the continued struggle in some quarters to give meaningful effect to the Supreme Court's Eighth Amendment ruling in Miller v. Alabama more than four years later.  Here are excerpts:

The Philadelphia District Attorney's office has conceded that a judge resentencing "juvenile lifers" may impose a minimum sentence lower than the 35 years the office has been offering in such cases.

The possibility was raised Monday as the office agreed to move ahead with resentencing for Kempis Songster, 44, serving life without parole for a murder he committed in 1987 at age 15.  An openly frustrated U.S. District Judge Timothy J. Savage — who had ordered a new sentence for Songster four years ago, and again in August with a 120-day deadline — said the office's policy of offering all inmates the same deal for a new sentence was inconsistent with a U.S. Supreme Court ruling that had put back into play about 300 murder cases in Philadelphia involving juveniles.

Savage's Aug. 17 order had urged resentencings in which a judge would have discretion to impose "individualized, proportionate sentences," take into consideration an inmate's rehabilitation, and impose a maximum of life only in "the rarest of permanently incorrigible" cases.

"Here's the problem that I have," Savage told Assistant District Attorney Susan Affronti on Monday.  "If you're saying you have all these offers out, it seems you're treating all of these folks the same way — 35 years to life.  I don't get that. That to me appears to show a lack of due diligence, of looking at each case individually.  I understand you want to do this for policy reasons. Maybe because it looks good."

Songster's case and others are back in the courts as a consequence of Montgomery v. Louisiana, a U.S. Supreme Court decision in January that made retroactive the court's ban on automatic life-without-parole sentences for juveniles. The ruling affects about 2,300 cases nationwide, about 500 of which are in Pennsylvania - including about 300 in Philadelphia.

Affronti, accompanied by Tariq el-Shabazz, one of District Attorney Seth Williams' top deputies, agreed to drop the appeal of Savage's order directing Songster to be resentenced as well as its request for a stay of the 120-day time frame. Savage's earlier ruling had questioned the district attorney's reliance on parole as the means of release by leaving maximum life sentences in place....

Bradley Bridge of the Defender Association of Philadelphia, who is handling many of the "juvenile lifer" cases, said the district attorney's dropping of its appeal was significant because it left Savage's opinion in place. "His vision of what is a lawful sentence is substantially different than the prosecutor's view of what is a lawful sentence," Bridge said. "The prosecutor has now conceded that Judge Savage wins. They're not challenging him on it."

Up until now, Williams has offered about 60 defendants plea agreements of 35 years to life, which, Savage previously noted, in effect passes the decision on release over to the parole board, which has approved the release of a handful of defendants in the oldest of the cases. Williams' office has argued that allowing parole in these cases was an acceptable way to comply with the Supreme Court ruling. Savage wrote in an earlier ruling, however, that a sentence with a maximum of less than life had to be considered by the resentencing judge. The life maximum should be ordered only in rare cases, but was allowable, he said.

Affronti acknowledged that the office had not been willing to offer a negotiated new sentence of less than 35 years to life for those were were 15 to 17 at the time of their crime, which is the current sentence set by Pennsylvania for first-degree murder involving a juvenile defendant 15 and older, set after the Supreme Court invalidated sentences of life without parole. Pennsylvania law also now allows for a more lenient sentence of 25 to life for juveniles who were younger than 15 at the time of the crime.

Affronti said the D.A.'s office would continue to use the new Pennsylvania law as a guideline for offers to the lifers, even though it does not legally apply retroactively, because "I believe a 15-year-old that commits first-degree murder in 1974 should be treated the same as a 15-year-old in 2016." The state Supreme Court ruled, however, that that new penalty could not be applied retroactively - a ruling sought by the commonwealth to avoid reopening these cases at all, prior to the U.S. Supreme Court retroactive ruling.

October 17, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Interesting lengthy dissent from SCOTUS cert denial from Justice Sotomayor joined (only) by Justice Ginsburg

There is a bit of interesting news with today's otherwise dull SCOTUS order list in the form of a lengthy dissent from the denial of certiorari penned by Justice Sotomayor and joined by Justice Ginsburg.  The dissent in Elmore v. Holbrook is available here, and it gets started and ends this way:

Petitioner Clark Elmore was convicted of murder in 1995 and was sentenced to death.  His court-appointed lawyer, who had never tried a capital case before, knew that Elmore had been exposed to toxins as a young adult and that he had a history of impulsive behavior.  A more experienced attorney encouraged Elmore’s lawyer to investigate whether Elmore had suffered brain damage as a young man. Instead of doing so — indeed, instead of conducting any meaningful investigation into Elmore’s life — Elmore’s lawyer chose to present a one-hour penalty-phase argument to the jury about the remorse that Elmore felt for his crime.  As a result, the jury did not hear that Elmore had spent his childhood playing in pesticide-contaminated fields and had spent his service in the Vietnam War repairing Agent Orange pumps.  The jury did not hear the testimony of experts who concluded that Elmore was cognitively impaired and unable to control his impulses. The jury heard only from an assortment of local judges that Elmore had looked “dejected” as he pleaded guilty to murder, not from the many independent witnesses who had observed Elmore’s searing remorse.

The Constitution demands more.  The penalty phase of a capital trial is “a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U. S. 280, 304 (1976).  It ensures that a capital sentencing is “humane and sensible to the uniqueness of the individual.”  Eddings v. Oklahoma, 455 U.S. 104, 110 (1982). Elmore’s penalty phase fell well below the bare minimum guaranteed by the Constitution.  His lawyer acted deficiently in choosing a mitigation strategy without fully exploring the alternatives and in failing to investigate the mitigation strategy that he did choose to present. And had the jury known that Elmore — who had never before been convicted of a crime of violence and felt searing remorse for the heinous act he committed — might be brain damaged, it might have sentenced him to life rather than death.

This Court has not hesitated to summarily reverse incapital cases tainted by egregious constitutional error, particularly where an attorney has rendered constitutionally deficient performance. See, e.g., Hinton v. Alabama, 571 U.S. ___ (2014) (per curiam); Sears v. Upton, 561 U.S. 945 (2010) (per curiam); Porter v. McCollum, 558 U.S. 30 (2009) (per curiam). This case plainly meets that standard. For that reason, I respectfully dissent from the denial of certiorari....

All crimes for which defendants are sentenced to death are horrific. See Glossip, 576 U. S., at ___ (BREYER, J., dissenting) (slip op., at 14); id., at ___ (THOMAS, J., concurring) (slip op., at 6–10).  But not all defendants who commit horrific crimes are sentenced to death.  Some are spared by juries.  The Constitution guarantees that possibility: It requires that a sentencing jury be able to fully and fairly evaluate “the characteristics of the person who committed the crime.” Gregg v. Georgia, 428 U.S. 153, 197 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.).  That guarantee is a bedrock premise on which our system of capital punishment depends, and it is a guarantee that must be honored — especially for defendants like Elmore, whose lives are marked by extensive mitigating circumstances that might convince a jury to choose life over death.  Only upon hearing such facts can a jury fairly make the weighty — and final — decision whether such a person is entitled to mercy.  I respectfully dissent from the denial of certiorari.

UPDATE: In the comments, Cal. Prosecutor highlights this notable new post by Kent Scheidegger at Crime & Consequences to provide more context for understanding this lengthy dissent from a SCOTUS cert denial.  Here is how that post gets started and ends:

The U.S. Supreme Court today declined to review the case of Washington State murderer Clark Elmore.  Justice Sotomayor, joined by Justice Ginsburg, dissented in an opinion castigating the defense lawyer at trial.  If the lawyer was so bad, one might ask, why did the Washington Supreme Court deny relief?  That court has certainly had no difficulty ruling in favor of murderers in past capital cases.  It is one of the country's more criminal-friendly forums.  If the lawyer was so bad, why did six of the eight Justices of the U.S. Supreme Court decline to join Justice Sotomayor's vigorous dissent?

There is, of course, more to the story.  After the break, I have copied an extensive portion of the Brief in Opposition written by Senior Counsel John Samson for the Washington AG's office....

Defending people who have committed horrible crimes is not easy.  Frequently tough choices must be made.  If the defendant is sentenced to death, as people who commit horrible crimes frequently are and should be, the capital appeal defense cult stands ready to say that the trial lawyer was incompetent for taking the path that he did at each fork in the road, regardless of which one he took.

October 17, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Wednesday, October 12, 2016

You be the judge: what sentence for mother and grandmother who delivered deadly heroin to teen?

The question in the title of this post is prompted by this disturbing AP story headlined "Mom, grandma face sentencing in teen's heroin death at hotel." Here are the depressing details:

The mother and grandmother of a teen who died from a heroin overdose at an Ohio hotel are scheduled to be sentenced for giving the 16-year-old the drugs that killed him.  Prosecutors say the grandmother delivered the drugs that her daughter and a friend used with the teen at a hotel in suburban Akron.

Investigators say Andrew Frye was found dead last April in a chair inside the hotel room that was littered with syringes and drug paraphernalia.

Both his mother, Heather Frye, and grandmother, Brenda Frye, pleaded guilty to involuntary manslaughter and other charges last month.  Prosecutors say Brenda Frye got the heroin from her boyfriend who pleaded guilty to heroin possession.

This prior story about the guilty pleas entered last month reports that the mother, Heather Frye, is 31 years old and the grandmother, Brenda Frye, is 52 years old.  With those additional details, I am now genuinely interested in and eager to hear from readers about what they think would be a fair and effective sentence for these two individuals.

October 12, 2016 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Tuesday, October 11, 2016

"Slave Narratives and the Sentencing Court"

The title of this post is the title of this interesting new paper authored by Lindsey Webb available via SSRN (and which certainly serves as an interesting scholarly "chaser" after watching the new documentary 13th). Here is the abstract:

The United States incarcerates a greater percentage of its population than any other country in the world.  Courts are substantially more likely to sentence African American and Latino people to prison than white people in similar circumstances, and African Americans in particular represent a grossly disproportionate percentage of the incarcerated population. Violence and other ills endemic to jails and prisons are thus disproportionately experienced by people of color.

This Article argues that criminal defense lawyers should explicitly address conditions of confinement at sentencing.  In doing so, a criminal defense lawyer has the opportunity to serve as both advocate and abolitionist.  As advocates, defense lawyers can incorporate information about conditions of confinement into sentencing narratives to support arguments for shorter sentences or against imprisonment altogether.  As abolitionists, defense lawyers can juxtapose the humanity of their clients with the poor or even dire conditions of confinement in our jails and prisons — not only to influence the court’s decision about an individual client’s sentence, but to impact the court’s view of our systems of incarceration as a whole.  Defense lawyers acting as abolitionists thus seek to disrupt and dismantle a system of imprisonment that disproportionately affects African American and Latino people in significant and damaging ways.

In examining how invoking conditions of confinement at sentencing engages defense attorneys as advocates and abolitionists, this Article seeks insight from a tool of abolitionists and advocates from a different time: Civil War-era slave narratives.  Slave narratives exposed the hidden conditions of slavery while also seeking to humanize the enslaved people subjected to those conditions.  Using slave narratives as a touchstone in a conversation about sentencing advocacy provides a new perspective on the role of storytelling in litigation and social movements, including questions of who tells the story and which stories are told, in the context of systems of control with deep disparate impacts based on race.

October 11, 2016 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)