Sentencing Law and Policy

Tea-leaf analysis of the likely Rodriquez ACCA case outcome

Writing over at CO, Anita Krishnakumar takes up my query about what her great ACCA analysis might mean for Rodriquez, the one last notable ACCA case still pending before the Justices.  Her thoughtful post highlights the unexpected affiliations that these ACCA cases create and ends this way:

So, hazardous though this kind of speculation can be, I am predicting a 5-4 or 6-3 outcome in favor of the defendant in this case.  Of course, if I am wrong about Justice Alito, the case could flip and the government could win.

Has quadriplegic been punished enough already?

A helpful reader altered me to this fascinating sentencing story out of California.  These sad facts provide an extraordinary setting to debate the purposes of punishment (not to mention the purposes of a public trial and the concept of closure):

The sentencing of a quadriplegic accused of killing a 69-year-old woman in a car crash was postponed this morning because his attorney is withdrawing his plea.

Danny Espinoza, 25, had pleaded no contest to felony vehicular manslaughter in the death of Dorothy Anne Walter. Espinoza was driving west on Stockdale Highway on March 5, 2006 and went into the eastbound lane near Buena Vista Road and slammed into Walter’s car. Walter later died at Kern Medical Center.  Espinoza was paralyzed from the accident.

Espinoza faces up to six years in prison. Judge Michael Lewis said this continuance is impeding closure and “this is a difficult sentence for all people.”  Espinoza’s attorney, Bruce Blythe, did not say in the hearing why he chose to withdraw the plea.... Laurie Kolkman, Espinoza’s mother, said a trial will help bring the truth about what happened in the crash. “I think it will be good,” she said.

Prosecutor Michael Yraceburn said the withdrawal was a surprise and that the defendant is having “buyer’s remorse.”... Walter’s family were scheduled to speak at the sentencing. Espinoza’s next hearing is scheduled for June 5.

Terrific analysis of Justices' wacka ACCA work

Writing over at CO, Anita Krishnakumar has this fantastic new post, titled "Dejá-Vu in Begay v. United States," examining the struggles that the Supreme Court has been having with application of the Armed Career Criminal Act.  Here is the "upshot" of her analysis:

Justices Alito, Souter, and Thomas have proved the most committed to the statutory text in the context of this criminal sentencing enhancement, even when the resulting outcome is not-so-palatable to them.  (Their Begay dissent openly expresses sympathy for the result produced by the majority, but laments the majority's construction as irreconcileable with the text).  Justice Scalia has proved consistent, across cases, in applying the rather atextual, but Rule-of-Lenity-inspired, construction which he concocted to limit the reach of an ambiguous criminal statute. Justices Stevens and Ginsburg have proved somewhat mysterious, and arguably inconsistent, in their reasoning with respect to this particular sentencing enhancment. And Justices Breyer, Roberts, and Kennedy have proved rather common-law-judge-like in their willingness to tweak the applicable test for this sentencing enhancement (adding on a "similar in kind" requirement) in order to achieve their version of justice on a case-by-case, ad-hoc, basis.

The only think missing from Anita's analsyis is an assessment of what all this might mean for Rodriquez, the other notable ACCA case still pending before the Justices.

Should Michigan be willing to forgive and forget long-ago drug crime?

A new drug sentencing story from Michigan sounds like the script of a Lifetime TV movie.  Here are the basics from this piece in The Saginaw News:

A southern California family is standing by the wife and mother who lived under a false name and with a colossal secret: Susan M. LeFevre escaped from a Plymouth prison 32 years ago.  But Michigan authorities are painting a different picture from LeFevre's account that her drug involvement was minor and she jumped a barbed wire fence to escape from prison out of fear for her safety.

The former Thomas Township resident, arrested at 19 for taking $600 from an undercover officer during a heroin drug sting in 1974, served about one year of a 10- to 20-year sentence for violating drug laws and conspiring to commit that crime when she walked away from the Robert Scott Correctional Facility at 21.  Her husband of 23 years, Alan Walsh, said his family was blindsided and grief-stricken by the revelation that Marie Day, the woman he fell in love with and who bore his three children, had hidden a criminal past....

LeFevre, a 1973 Arthur Hill High School graduate, received her sentence Feb. 27, 1975. On Feb. 2, 1976, she walked away from prison, saying she threw a coat over a barbed wire fence and climbed into a waiting vehicle where her grandfather and another relative were saying the rosary.  LeFevre headed for California and used a Social Security number belonging to someone who died in 1981, a number she says she made up, said Steve Jurman, the federal Marshal who arrested her.  She obtained a California driver's license using a false date of birth but didn't renew it after it expired in 1999.

Her 32 years of freedom ended April 24, when federal marshals acting on an anonymous tip from Michigan arrested her at her home in Del Mar.  Police described her home as a mansion in Carmel Valley, where she lived with her husband, two daughters and a son -- 15, 20 and 22.

"I've heard her story that she just happened to be with a person who was selling heroin," said Russ Marlan, spokesman for the state Department of Corrections. "The file we have is very different." LeFevre's crimes likely caused many and serious ripples in the criminal underworld, he said. A state trooper testified LeFevre was a ringleader of a drug-trafficking operation, Marlan said.

"She had people working for her. She was making a large profit," Marlan said.  "She wore nice clothing and rented an apartment. When she was arrested, she had $600 in cash, paraphernalia for cutting heroin, and photographs that proved she was acquainted with people higher up in the Saginaw drug world.   When she was sentenced to do 10 to 20 years for a person with no prior history... those things don't mesh with someone (who was a small time drug dealer).  The state police that did the investigation estimated she was making $2,000 a week when she was arrested. That's $104,000 a year.  That's good money now, imagine what it was in 1974."

This related story has a corrections official suggesting that she would have to serve at least 5+ years on her original conviction and that a sentencing judge might tack on an additional prison term for escape.  The piece also notes, however, that Michigan Governor "Jennifer M. Granholm has the power to grant clemency."  This case should be an interesting one to watch in the days and weeks ahead.

UPDATE:  This new article provides more details about LeFevre's life and crimes in the 1970s, and it concludes with this notable suggestion from the Michigan prosecutor in charge of a drug task force at the time she was originally sentenced:

If he were prosecutor today, said Denton [who was Saginaw County's prosecutor in charge during the 1970s], he wouldn't put LeFevre back in prison. Instead, he would allow her to withdraw her plea, have her replead to the same charges, then sentence her under the new Michigan guidelines, which would factor in a prior record, the severity of the crime and what she has done with her life.  "I'd give her probation and let her go back and be with her family in California."

New paper on blended juve sentencing

Now appearing on SSRN is this interesting new piece providing an empircal perspective on a "new juvenile sentencing innovation, blended sentencing."  The piece is titled "Who Gets a Second Chance? An Investigation of Ohio's Blended Juvenile Sentence," and here is the abstract:

During the early 1990s, many state legislatures made sweeping changes in the dispositional and sentencing options available to juvenile courts, including the introduction of a new juvenile sentencing innovation, blended sentencing.  Blended sentencing emerged during a period of steadily increasing violent juvenile crime as a compromise between those who wanted to emphasize public safety, punishment, and accountability of juvenile offenders and those who wanted to maintain or strengthen the traditional juvenile justice system. The purpose of the present paper is to examine the practice of blended sentencing in Ohio.  Our objective is to identify the factors that influence the probability that juvenile offenders will be processed as conventional juvenile or as blended sentencing cases (referred to as a Serious Youthful Offender or SYO in Ohio) or transferred to the adult criminal justice system.

Using data from over 600 juvenile cases in Ohio, we propose a multinomial regression model to predict factors associated with the various dispositional case processing options. From these data we found, that, all other things being equal, non-white juvenile offenders were significantly less likely than white offenders to be SYOs as opposed to being transferred.  While some policy makers advocate that blended sentencing options as are currently in use be discontinued, we suggest that the most promising option to rationalize the use of blended sentencing and to avoid disparities in its use is to incorporate the principal of risk in its application.

"Punishing Family Status"

The title of this post is the title of this new paper available via SSRN.  Here is the abstract:

This Article spotlights two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status?  We address the first question in Part I by first revealing a variety of laws permeating the criminal justice system that together form a string of "family ties burdens" or penalties that impose punishment upon individuals on account of their familial status. The six burdens we train our attention on are omissions and vicarious liability, incest, bigamy, adultery, and failure to pay child support.

Part II then develops a framework for the normative assessment of these family ties burdens, asking in which ways can these laws be properly understood as "burdens."  By looking at these sites synthetically, we also uncover a latent rationale for these family ties burdens: namely, the promotion of voluntary care-giving relationships.  We explain the nature of this rationale and its implications for proper policy design¿particularly whether its intrusion into the criminal justice system can withstand critical scrutiny. Finally, in Part III, we apply our proposed framework to see under which conditions these burdens should be rejected, retained, or redrafted in terms that are neutral to family status and instead capable of promoting voluntary care-giving.

Dan Markel, one of the co-authors of this paper, discusses the work in this post at PrawfsBlawg.

Attacking a not-so-hefty white-collar sentence

Writing for Bloomberg.com, commentator Ann Woolner assails the below-guideline sentence recently given to a high-profile white-collar defendant.  Her sharp commentary, which is titled "Thieving Wal-Mart Boss Does Time at Banquet Table," begins this way:

Here is a little story about a big man who embezzled hundreds of thousands of dollars from his employer, cheated the U.S. Treasury and will serve not a day in jail for it.  If Thomas Coughlin, Wal-Mart's former No. 2 executive, has learned anything from his encounter with the law, it is how to manipulate the justice system.

For one thing, because of poor health he gets to stay home and avoid even the most accommodating of white-collar prison camps, as those un-jails are dubbed.  Then there is his notion of community service. Less imaginative felons wind up collecting highway trash. Coughlin goes to a party.

It's true. Coughlin persuaded his probation officer to let him count as community service the hours he spent last month schmoozing with old hunting buddies at a banquet for the National Wild Turkey Federation, local chapter. Well, why not? The event raised money for the nonprofit, conservation group, according to the Arkansas Democrat-Gazette, which first reported Coughlin's big night out. So what if the federation promotes killing wild turkeys while working to conserve them?

Coughlin got to count not only his time at the banquet, but time spent attending planning meetings and rounding up auction items.  No spooning out soup to the homeless for this millionaire.  The sheer pleasure of being out of the house and among the 350 banquet-goers was itself a bonus. Except for approved forays, he and his ankle bracelet are spending his 27-month sentence within 10 feet of his house, which sits on a 2,000-acre ranch near Centerton, Arkansas.

Feds agree to probation for tax cheat billionaire!?!?!

After seeing this story at Forbes, headlined "U.S. Agrees Guilty Billionaire Shouldn't Go to Jail," I may have to rethink my assumption that federal prosecutors never are willing to go soft on any white-collar criminals.  Here are the details:

[T]he sentencing of billionaire Orange County real estate developer Igor M. Olenicoff, scheduled to take place in a federal court in California April 14, might not make for good scared-straight headlines. In a new court filing, government prosecutors agree that Olenicoff, who pleaded guilty in December to one felony count of filing a false 2002 U.S. individual income tax return, should get off on probation.

In his plea agreement, Olenicoff, 65, admitted he lied on his 1998 through 2004 tax returns when he answered "no" to a question asking if he had ownership or authority over any financial accounts in foreign countries.  In fact, he had accounts in the Bahamas, Switzerland, Liechtenstein and Britain. As part of the plea deal, Olenicoff paid $52 million in back federal taxes, interest and civil fraud penalties and agreed to bring all the money in his foreign accounts (believed to total in the hundreds of millions) back to the U.S.

Forbes estimates the self-made, Russian-born Olenicoff, who came to the U.S. at age 15, is now worth $1.6 billion.  While the false-tax-return charge is punishable by up to three years in jail, Olenicoff's deal with prosecutors, together with federal sentencing guidelines, made it unlikely he would get more than six months.  Then last month, a U.S. probation officer filed a pre-sentencing report recommending Olenicoff get off with just one year of probation and a $3,500 criminal fine.  While that report is not a public document, prosecutors' response to it is.

In a filing this week, prosecutors said they didn't object to probation, but urged that the probation last three years--to ensure Olenicoff's "future compliance with Internal Revenue laws. " The prosecutors noted that while Olenicoff has fully complied with the terms of his plea deal, his "use of off-shore bank accounts and the transferring of assets to these accounts dates back to at least 1992."

Edward M. Robbins Jr., Olenicoff's attorney, said the prosecutors' position makes it "highly unlikely" that the judge will sentence Olenicoff to any prison time, although he still might order home detention. But Robbins, a former federal tax prosecutor who is now a partner with Hochman, Salkin, Rettig, Toscher & Perez, in Beverly Hills, rejected any suggestion that Olenicoff is getting off lightly and insisted the felony conviction alone would indeed have a strong deterrent effect.

I think what irks me about this story is the idea that a defendant apparently worth $1.6 billion is going to only face a fine of a few thousand dollar.  Especially if he is to avoid all prison time, how about a fine of, say, .1% of his worth.  Even letting this fellow keep 99.9% of his fortune could still produce a more fitting fine of $1.6 million.  Also, how about some community service requiring him to help low and middle income tax payers set up lawful tax shelters?

You make the call: what is a just and effective sentence for Sister Barbara Markey?

Since most judges likely have no experience sentencing nuns, I hope readers will use the comments to help out the Nebraska judge who will soon have to sentence Sister Barbara Markey.  Here is the AP story providing the background:

A Roman Catholic nun accused of stealing from the Omaha Archdiocese and gambling much of the money away has pleaded guilty to theft.  An attorney says Sister Barbara Markey pleaded Monday to theft of more than $1,500.  Defense attorney J. William Gallup says she also agreed to pay $125,000 in restitution.

Markey faces up to 20 years in prison when she is sentenced in July.

Markey is an internationally known speaker.  She was fired in 2006 as director of the archdiocese's family life office after an audit found irregularities. The audit found that Markey spent $307,545 for her own use or without documentation.  Prosecutors say Markey used the money to cover gambling forays, gifts and trips.

Regular readers will not be surprised to hear that I do not think a long prison term makes much sense for Sister Barbara Markey.  But I am still thinking about what would make sense.  Suggestions, dear readers?

Keeping track of corportate punishment (and its deferral)

Mary Flood has this interesting new piece in the Houston Chronicle, headlined "Justice's deals draw scrutiny: Research by Houston lawyers takes issue with corporate penalties."  Here are snippets, including a closing quote from yours truly:

The research of two Houston lawyers is at the center of a growing controversy over the way the Justice Department lets corporations accused of wrongdoing off the criminal hook.  Larry Finder, a former Houston U.S. Attorney in private practice, and Ryan McConnell, a federal prosecutor here, started tracking and writing about the trends a few years ago.  Now their work is oft-cited as legislators, professors and others take aim at how the Justice Department is striking a growing number of deals with companies.

Though there has been mounting concern about the increased use of agreements to help bad-acting corporations avoid business-crushing criminal trials, scrutiny heightened recently with revelations of prosecutors passing lucrative monitoring jobs to former colleagues. One such contract worth potentially $52 million went to ex-top prosecutor John Ashcroft's firm to monitor Zimmer Holdings in a case about kickbacks in the medical field.

Finder and McConnell could find no other analysis of these corporate prosecutions.  They found that there seemed to be no policy in place to create uniformity in the way federal prosecutors handle the cases.  Their work is cited by members of Congress now trying to change the way these cases are handled....

Ellen Podgor, a professor at Stetson University College of Law who has written about these corporate deals, said the idea of corporate deferred prosecution is a good one "but I see enormous problems in the way they are operating."  She said the problem is the government's role. It gets to decide whether the corporation is in breach, it gets to pick the monitor and all this without the judicial oversight in regular plea bargains or probations, she said....

Doug Berman, a professor at Moritz College of Law at Ohio State University who writes on federal sentencing, said "it's sad nobody was keeping track until some eggheads in Houston did." "We have a sentencing commission that tracks every sentence on drug cases and sex offender cases, yet when it comes to the Justice Department giving a break to corporations, nobody keeps track of this stuff," Berman said.  "The powers that be don't want too much out about whether corporations are getting too many breaks."

Interesting coverage of mental illness and sentencing in Harvard Law Review

I had the honor of writing for "Developments in the Law" and then serving as Developments Chair during my years on the Harvard Law Review.  Consequently, I am especially proud to see that this year's Developments in the Law is focused on "The Law of Mental Illness".  And, as the introduction highlights, "[b]ecause the criminal justice system has become home to many mentally ill individuals, several of the Parts the focus on this area."  Indeed, as this summary table of contents highlights, there is a lot of good reading in this Devo for sentencing fans:

DEVELOPMENTS IN THE LAW -- THE LAW OF MENTAL ILLNESS

I. Introduction

II. Sell v. United States: Forcibly Medicating the Mentally Ill To Stand Trial

III. Booker, the Federal Sentencing Guidelines, and Violent Mentally Ill Offenders

IV. The Impact of the Prison Litigation Reform Act on Correctional Mental Health Litigation

V. The Supreme Court's Pursuit of Procedural Maxima over Substantive Minima in Mental Capacity Determinations

VI. Mental Health Courts and the Trend Toward a Rehabilitative Justice System

VII. Voting Rights and the Mentally Incapacitated

Corrupt GOP contributor gets long below-guideline sentence

As detailed in this Washington Post story, a high-profile corruption sentencing took place yesterday in which the defendant got a dozen years in prison and should feel lucky he did not get a lot more:

Brent R. Wilkes, a California defense contractor and prominent GOP campaign contributor, was sentenced to 12 years in federal prison yesterday for lavishing a Republican congressman with money, prostitutes and other bribes in exchange for nearly $90 million in work from the Pentagon.  Wilkes, 53, was convicted in November of 13 felony crimes including bribery, conspiracy and fraud for giving the gifts to former representative Randy "Duke" Cunningham (R-Calif.), who is serving an eight-year prison term for accepting millions in bribes from Wilkes and others.

The sentence by U.S. District Judge Larry Burns in San Diego was far smaller than the 25-year term federal prosecutors had sought or the 60-year term urged by federal probation officers. U.S. Attorney Karen P. Hewitt said nonetheless that Wilkes "has earned every day of the sentence he received" and that the prison term "reflects the egregiousness of the corrupt conduct."

Wilkes has steadfastly maintained his innocence since being charged a year ago, saying his dealings with Cunningham were legitimate and blaming wrongdoing on others. "I am a man who cares deeply for this community, for my family, for my country," Wilkes said in a brief statement to the court, the Associated Press reported.

The judge said he was troubled by Wilkes's failure to accept responsibility for his crimes. "If you were to do the right thing about this, today is the day to own up," the judge told Wilkes, according to the AP.  "You have no sense of contrition.  You had this corrupt relationship with the congressman and you profited from it."

Shouldn't we have tougher recidivism sentencing laws for DWI?

This Ohio story about an upcoming DUI sentencing has my blood boiling again about the failure of states to adopt tough recidivism sentencing laws to respond to the very risky behavior of repeat drunk driving.  Here are the basics:

Three decades of drunken driving have finally caught up with 19-time offender Stephen W. Wolf — thanks largely to a pair of quick-acting young men.  Wolf, 50, of Hamilton, faces up to 10 years in prison when he is sentenced today on his 19th drunken-driving conviction....

Wolf's lawyer, Robert Qucsai, says Wolf should not be judged by his driving record alone. "He's a really personable guy. He's really easy to talk to.  He's not nearly as bad as his record would reflect," Qucsai said Monday.  Even Qucsai acknowledges that people ask him: How could Wolf still be driving? Qucsai's answer: "It's not like he has a valid license."

Plenty of people drive despite having a suspended or revoked license, authorities say, and locking them up is the only way to stop them from driving....  Authorities say Wolf likely would not even be in court if not for Alex Heher, 20, of Fairfield Township, and his passenger, Adam Trantham, 19.  They followed Wolf after seeing him in a hit-and-run crash July 13....

Assistant Prosecutor John Heinkel... said it would be an over-reaction to blame the court system for Wolf's lengthy record without long-term punishment. "My guess would be that, in some of the prior cases, there were probably issues as to the (alcohol) testing, and negotiated pleas were worked out," he said....

Back in the 1970s — when Wolf first started drinking and driving — all drunken-driving charges were misdemeanors.  Those charges carried little or no jail time, no matter how many times a drunken driver was snared, Heinkel said.  Now, repeat drunken drivers are slapped with felonies — and a 2004 Ohio law adds one to five years for offenders with at least five drunken-driving convictions during a 20-year span.

The article rightly notes that, over the past three decades, drunk driving sanctions have become more severe. And to good effect: as this 2002 report details, considerable research "over 40 years has shown conclusively that good laws that are strongly supported and enforced with meaningful penalties reduce drunk driving."  Unfortunately, as this report also details:

Every state has an elaborate system of drunk driving laws, enforcement, courts, and punishment, but these systems do not work as well as they should.  Arrest rates are low.  Complex laws allow some offenders to escape any punishment. Other offenders can avoid a drunk driving conviction through a plea bargain. Sanctions are not applied consistently.  Sentence requirements are not completed.  These problems are not well known because many states do not have good record systems.  Drunk drivers have little fear of being stopped, arrested, convicted, and punished — so they continue to drink and drive.

In California, a petty theft following two drug offenses can be enough to get someone a mandatory sentence 25-year-to-life, but even Ohio's "tougher" DWI law only adds a few years for having at least five drunken-driving convictions.  I guess we as a society are not really as concerned about the loss of life as some death penalty abolitionist folks might have one believe.

Another potent report calling for juve sentencing reforms

As detailed in this press report, an "Illinois youth justice advocacy group called for the abolition of life-without-parole sentencing for youths 17 and under on Wednesday."  Here are more details from the article:

The Illinois Coalition for the Fair Sentencing of Children interviewed 103 state prisoners who got that maximum sentence even though they were 14 to 17-year-olds. The oldest prisoner who talked about his life-without-parole sentence as a youth, is now 47.  The study concluded that adolescents should have the chance to come before a parole board within the first 15 to 20 years of their life sentence.

The group said it is inhumane to lock-up minors for life without the chance of parole.  They said adolescents are less culpable than adults and are capable of being rehabilitated. The coalition pointed out that the  U.S. Supreme Court 2005 recognized that children are “categorically less culpable” for their crimes because their brain development is still evolving.  Some psychiatrists said that young adults are not necessarily less culpable, but their developmental stage needs to be considered.

A lot more information about the report can be found at this Northwestern Law School webpage.  The executive summary from the report is available at this link, and the full report is available here.

Violent crime and crazy talk

Over at Crime & Consequences, Steve Erickson has this interesting post titled, "The Ubiquity of Substance Abuse in the Calculus of Crime and Mental Illness."  Here are snippets:

As mentioned previously, the recent National Institute of Mental Health's CATIE study suggested a link between schizophrenia and violence. That conclusion generated a lot of controversy from folks who assert that there is no link between mental illness and violence, touting the frequent mantra that those with mental illness are no more likely to become violent than the general population. Indeed, we should be careful not to needlessly contribute to the enduring stigma that burdens those with mental illness.  Nonetheless, we shouldn't ignore the link between mental illness and crime simply because it makes some people uncomfortable or is at odds with the vested rhetoric of political correctness....

[Other] studies confirm ... a strong link between criminality and substance abuse.... Putting all of the rhetoric aside, the risk of violence and crime among those with mental illness who abuse alcohol and drugs is a serious risk in need of candor within the academic and popular realms of debate.

Fifth Circuit flags yet another criminal history circuit split for SCOTUS to consider

By my count, the Supreme Court this Term has four cases on its docket (which is more than 5% of its merits docket) committed to resolving circuit splits concerning the impact and import of state criminal convictions in the application of federal sentencing law: (1) Logan (decided last month, basics here); (2) Rodriquez (argued earlier this month, basics here); (3) Begay (argued earlier this month, basics here); and (4) Burgess (to be argued in March, basics here).  As federal sentencing practitioners know, however, there are plenty more cases like these producing circuit splits over state criminal history and federal sentencing rules.

Another splitting criminal history headache is showcased in a recent Fifth Circuit ruling, US vs. Lopez-Salas, No. 06-41637 (5th Cir. Jan. 3, 2008) (available here).  Interestingly, in this case the Fifth Circuit expressly rejects the government's interpretation of the criminal history aspect of the immigration guidelines, and interpretation which the district court and a prior Eleventh Circuit decision had adopted.  It will be interesting to see if the government considers appealing this ruling and gives SCOTUS yet another opportunity to examine the wonderful intricacies of state criminal history and federal sentencing law.

Sentencing word to the wise: watch your pre-sentencing words

Thanks to this CNN piece, here is a classic sentencing example of the old "watch what you say" lesson:

A judge sentenced a woman to nearly the maximum prison term for negligent homicide after hearing a recorded jail conversation in which she made light of the bicyclist she killed.

Melissa Arrington, 27, was convicted two months ago of negligent homicide and two counts of aggravated DUI in connection with the December 2006 death of Paul L'Ecuyer. She could have gotten as few as four years behind bars, but Superior Court Judge Michael Cruikshank sentenced her Tuesday to 10½ years -- one year shy of the maximum. Cruikshank said he found a telephone conversation between Arrington and an unknown male friend, a week after L'Ecuyer was killed, to be "breathtaking in its inhumanity."

During the conversation, the man told Arrington that an acquaintance believed she should get a medal and a parade because she had "taken out" a "tree hugger, a bicyclist, a Frenchman and a gay guy all in one shot." Arrington laughed. When the man said he knew it was a terrible thing to say, she responded, "No, it's not."

SCOTUS oral argument transcripts in ACCA cases

As previewed here, today the Supreme Court heard oral argument in US v. Rodriquez (06-1646) and Begay v. US (06-11543), two cases exploring whether certain prior state offenses should trigger the severe mandatory minimum sentencing terms Congress provided in the Armed Career Criminal Act (known as ACCA).   The oral argument transcripts from these two cases are now available here and here. 

I have now printed out these two transcripts and will take them home for evening consumption (along with my federal-judicial bucket o' brew).

UPDATE: Both transcripts make for interesting reads, and some deep conceptual and jurisprudential issues get covered in Rodriquez.  As in other ACCA cases, it seems that Justice Scalia is most concerned about the governments efforts to give an unclear statute an unduly broad reading.  Indeed, at the end of the Rodriquez, when the government asserts that a narrow reading of the statute could lead to "pernicious consequences," Justice Scalia responds: "It's good to put more people in jail?  I mean, that isn't necessarily what we're after."  Of course, this does seem to be what DOJ is usually after when it presses broad readings of ACCA.

Previewing Tuesday's ACCA cases in the Supreme Court

Tuesday morning the Supreme Court will hear argument in US v. Rodriquez (06-1646) and Begay v. US (06-11543), two cases exploring whether certain prior state offense should trigger the severe mandatory minimum sentencing terms Congress provided in the Armed Career Criminal Act (known as ACCA). 

As detailed in this prior post, I wrote up a formal preview of these two ACCA cases for the ABA.  In this preview, I noted that these cases, though technically raising pure issues of statutory interpretation, implicate a number of cross-cutting jurisprudential and policy considerations.  For another take on these cases, previews are also available from SCOTUSwiki on Rodriquez here and Begay here.

New HRW report assailing juve LWOP in California

As detailed in this press statement, today a new report was released by Human Rights Watch calling upon the California legislature to "pass a law this month to end the sentencing of children to prison for life with no possibility of parole."  The report is entitled "When I Die, They'll Send Me Home: Youth Sentenced to Life without Parole in California," and it can be accessed in various ways from this link.  Here is the start of the report's summary:

Approximately 227 youth have been sentenced to die in California's prisons. They have not been sentenced to death: the death penalty was found unconstitutional for juveniles by the United States Supreme Court in 2005. Instead, these young people have been sentenced to prison for the rest of their lives, with no opportunity for parole and no chance for release.  Their crimes were committed when they were teenagers, yet they will die in prison. Remarkably, many of the adults who were codefendants and took part in their crimes received lower sentences and will one day be released from prison.

In the United States at least 2,380 people are serving life without parole for crimes they committed when they were under the age of 18.  In the rest of the world, just seven people are known to be serving this sentence for crimes committed when they were juveniles.  Although ten other countries have laws permitting life without parole, in practice most do not use the sentence for those under age 18. International law prohibits the use of life without parole for those who are not yet 18 years old.  The United States is in violation of those laws and out of step with the rest of the world.

Some recent related posts on juve life sentences:

• Nebraska working to reform juve LWOP sentences
• NYTimes coverage of very young lifers
• Juves serving life terms
• Fascinating juve clemency development in Colorado
• Life without parole for juvenile may be cruel, but it is not unusual
• The next issue in sentencing of juveniles?
• California considering eliminating LWOP for juveniles
• Forthcoming PBS program "When Kids Get Life"
• Does Roper suggest young juve LWOP is unconstitutional?

Nebraska working to reform juve LWOP sentences

A helpful reader sent me this encouraging article headlined "Bill would give youngsters sentenced to life in prison hope for parole."  Here are excerpts:

Nebraska would join eight other states that have prohibited sentencing young murderers to life in prison without parole under a bill introduced Thursday in the Legislature. Nebraska currently has 30 people who were sent to prison for life before their 19th birthdays....

Under the bill introduced by State Sen. Dwite Pedersen of Omaha, those convicted of a murder that was committed before their 18th birthday could be considered for parole after 25 years. Those convicted of a murder committed before their 16th birthday could be considered for parole after 20 years.

In a recent report, Nebraska youth advocacy group Voices for Children, which supports Pedersen's bill, said "life without parole is contrary to the mission of juvenile justice."...  Eight states and the District of Columbia now prohibit the sentencing of youth offenders to life without parole. Colorado is the most recent to ban the sentence, acting in 2006.

Some related posts:

• NYTimes coverage of very young lifers
• Juves serving life terms
• Fascinating juve clemency development in Colorado
• Life without parole for juvenile may be cruel, but it is not unusual
• The next issue in sentencing of juveniles?
• California considering eliminating LWOP for juveniles
• Forthcoming PBS program "When Kids Get Life"
• Does Roper suggest young juve LWOP is unconstitutional?

Previewing two coming ACCA cases

Though unlikely to get much media attention, the Supreme Court has two Armer Career Criminal Act cases on tap for argument on January 15 that should be of interest to sentencing and statutory interpretation fans.  I wrote up a formal preview of these case for ABA's request, and the ABA folks have graciously allowed me to post my write-up here.  This passage from my preview highlights why two seemingly little cases raise a lot of big issues:

Though technically raising pure issues of statutory interpretation, these ACCA cases implicate a number of cross-cutting jurisprudential and policy considerations.  On the statutory construction front, the Justices frequently debate and disagree about whether to focus only on the express text enacted by Congress or on the broader legislative purposes and history that might help inform the text.  Also, in the criminal justice context, some Justices (including some perceived to be conservative) regularly invoke various due process and fairness principles to reject expansive interpretations of federal criminal statutes urged by the Department of Justice.  In addition, many Justices have expressed concerns in opinionsand speeches about rigid mandatory sentencing terms that sometimes unduly limit district judges’ discretion to achieve case-specific justice at sentencing.  Further, in a series of (technically unrelated) recent constitutional rulings, a majority of Justices have consistently held that the Sixth Amendment’s jury trial right prevents district judges from making certain factual findings that increase the defendant’s maximum available sentence term.

Download acca_aba_preview_2008.pdf

Second Amendment challenge to felon-in-possession conviction

Especially in light of my hunting post yesterday, I was very intrigued to see this morning's New York Sun article headlined "Convicted Felon Tests Second Amendment."  Here are excerpts:

Current federal law prevents felons from keeping a firearm. [Damon] Lucky, already a felon twice over, was convicted this year of violating that law. His court motion seeks to have that conviction tossed out on the grounds that the law violates the Second Amendment.

At its essence, the question before the Supreme Court in an upcoming case is whether the Second Amendment gives individuals the right to own guns or grants only a collective right to form militias. Even some proponents of the individual rights position say the Second Amendment allows for some gun control, like laws that prevent felons from owning firearms.

[Lucky's lawyer Harry] Batchelder conceded that the motion is a long shot.  Still, few defendants in gun possession cases in New York ever raise a Second Amendment argument.  Except for Lucky, Mr. Batchelder said, "they all go away quietly."

It's possible, several lawyers say, that Lucky's case is the only challenge currently in court in New York City claiming that the Second Amendment provides for an individual right to own a gun. Mr. Batchelder, an ex-military man, described Lucky as "the recon scout for the Second Amendment."... 

In Lucky's legal motion, Mr. Batchelder refers to the gun rights advocates as "Paineists," and the gun control advocates as "Stalinist collectivists." Yet the lawyer says he personally favors gun control.  "But my personal views have nothing to do with what I advocate," Mr. Batchelder said. "Otherwise, I wouldn't be advocating for too many people."

Some related posts:

• SCOTUS takes up DC Second Amendment case ... predictions?
• A Second Amendment problem with Peltier?
• Hunting, pardons and a Second Amendment claim?

Evolving images of a killer and the evolving Eighth Amendment

There are so many interesting facets of the Pittman case (first discussed here), which has now been brought to the Supreme Court.  This new National Law Journal article provides the basics and highlights the role of a law school clinic in bringing the case to the Supreme Court:

A group of University of Texas School of Law students has helped file a petition with the U.S. Supreme Court in hopes of getting a South Carolina teenager's sentence reviewed.  The petition, filed on Monday, asks the court to review the case of Christopher Pittman, who is serving a 30-year sentence without parole for murdering his grandparents when he was 12.  Five third-year law students from the school's Supreme Court Clinic in Austin teamed up with five public policy students and spent the semester working on the case.

In addition, as spotlighted in this post at Pharmalot, the Pittman case has already drawn plenty of attention from folks other than those concerned just with the operation of the criminal justice system:

[If the Supreme Court takes this case] another aspect is likely to get attention — Christopher Pittman was taking Zoloft at the time he used a shotgun to shoot his grandparents, and then set fire to their home in 2001.  During his trial four years later, his attorneys argued, unsuccessfully, that the rampage was heavily influenced by the antidepressant, which Pfizer has always denied....  Meanwhile, a [recent] Fox News program, Hannity’s America, ran a segment linking recent mass shootings by teenagers with antidepressants. The episode had its flaws — the reporter failed to include comment from anyone in pharma or at the FDA, and suggested a connection to the recent shooting at the Omaha shopping mall without offering any evidence. Nonetheless, these two items suggest the debate over the proper use of antidepressants won’t go away and, in fact, is likely to remain polarized for the foreseeable future.

While others may be primarily interested in the human and medical stories that surround this case, I am focused on legal issues concerning the interpretation and application of the Eighth Amendment in this (non-capital) context.  Of particular interest to me is how the Eighth Amendment is to be applied in non-capital cases in light of the Court's recent capital rulings in Roper and Atkins (and its forthcoming work in Baze).  Specifically, I wonder whether and how the legal concept of an "evolving national consensus" that was central in Roper and Atkins should be unpacked here.  Against this backdrop, I am especially intrigued by the different images of the defendant that can be in the mind's eye as one thinks about whether the sentence he received is unconstitutional because it would violate societal mores.  As a few shrewd commentors have already noted (and as the pictures in this post highlight) the evolving nature of a young man perhaps has already played a role in his fate, and could continue to play a role in the debate over this case.

A severe juve sentence seeking SCOTUS attention

How Appealing does a great job here collecting resources relating to the cert petition filed yesterday in the in Pittman v. South Carolina.  This AP article provides the basics:

Attorneys have asked the U.S. Supreme Court to hear the case of a teen sentenced to 30 years in prison for killing his grandparents when he was 12, arguing that the sentence is cruel.... In the brief submitted to the high court late Monday, attorneys from the University of Texas School of Law argued that the 30-year sentence violates Christopher Pittman's Eighth Amendment protection from cruel and unusual punishment.

The adverse ruling from the South Carolina's highest court, which can be found here, rejected the defendant's constitutional challenge by stating, inter alia, that "we do not believe that evolving standards of decency in our society dictate that it is cruel and unusual to sentence a twelve-year-old convicted of double murder to a thirty-year prison term."

The cert petition, which Howard Bashman has made available for downloading via this link, presents these three questions:

I.  Is a sentence of 30 years without possibility of parole constitutionally disproportionate as applied to a 12-year-old child?

2.  Are the mitigating qualities of youth relevant to whether a 12-year-old's non-capital sentence is constitutionally disproportionate?

3.  Does the Eighth Amendment prohibit the imposition of a sentence of 30 years without possibility of parole on a 12-year-old child where the sentencer was absolutely precluded from considering youth as a mitigating factor justifying lesser punishment?

For lots and lots of reasons, I really hope the Supreme Court takes this case.  In fact, I think Pittman is a much more important and consequential case than the child rape capital case from Louisiana (Kennedy) that many SCOTUS watchers are watching so closely.  But, because capital cases always seem to drawn unique interest from the Justices, I'd probably bet Kennedy is a more likely grant than Pittman.  (In my perfect (and very, very unlikely) world, these cases would be consolidated for one mega-argument about the modern scope and reach of the Eighth Amendment.)

Fascinating review of recent white-collar sentencing realities

I just noticed this Bloomberg news story detailing some of the sentencing realities of the modern assault on corporate crime.  The story is headlined "Bush Fraud Probes Jail Corporate Criminals Less Than Two Years," and here some lengthy excerpts from a very interesting piece:

Sixty-one percent of defendants sentenced in the Bush administration's crackdown on corporate fraud spent no more than two years in jail, escaping the stiff penalties given WorldCom Inc. and Enron Corp. executives. In the past five years, 28 percent of those sentenced got no prison time and 6 percent received 10 years or more, according to a review of 1,236 white-collar convictions....

A wave of corporate corruption marked by Enron's collapse in 2001 and an accounting scandal at WorldCom led Congress to enact harsher penalties. President George W. Bush signed the Sarbanes-Oxley Act to reform governance and named a Corporate Fraud Task Force to push "significant" prosecutions....

Defendants got reduced jail time when they helped prosecutors investigate frauds, served as low- or mid-level executives, or committed crimes that were less sophisticated than complex accounting conspiracies, the review by Bloomberg News found....Of the 1,236 convictions from 2002 to 2007 in the review, 1,133 defendants were sentenced. Forty-seven percent of those got a year or less in prison....

The Justice Department claimed credit for 1,236 convictions in the crackdown on corruption. The department says it doesn't have a comprehensive list.  Bloomberg assembled a comparable list based on more than 350 cases from task force annual reports, lists of executives, and press releases on the department's Web site....

Joan Meyer, who oversees the task force as senior counsel to the deputy attorney general, argues that any prison sentence can serve as a deterrent. "Every case can't be an Enron,'' Meyer says. "The question is, do we give a pass to white-collar defendants because their crimes are non-violent and result in lesser sentences? That would be an abdication of our responsibilities.''...

At least 129 defendants cooperated with prosecutors, court records show.  The number may be higher, lawyers say, because public files don't always reflect whether a judge credited a defendant for helping the government.....  Judges weigh a crime's nature, the amount of financial loss and a defendant's circumstances in sentencing. Offenders who plead guilty tend to get less time than those who go to trial. 

Defendants are penalized for not accepting responsibility for their crime, while those convicted at trial may be held accountable for the full loss in a fraud.  Of 193 defendants convicted at trial, 38 got 10 years or more....  "The idea that somebody who goes to trial and gets hammered while people who plead guilty get far less time smacks of the Inquisition,'' says defense attorney John Keker of Keker & Van Nest in San Francisco. "I think it's a disgrace.  The going-to-trial penalty should be an embarrassment to judges everywhere.''...

Another "priors" case with some rule of lenity spicing

This new post at SCOTUSblog provides a bit more background on Burgess, the most sentencing-focused case in today's big bunch of cert grants.  Here are the Questions Presented in the case:

1. Whether the term “felony drug offense” as used in federal statute requiring imposition of enhanced mandatory minimum 20 years’ imprisonment when drug offender has “prior conviction for a felony drug offense” must be read in pari materia with federal statutes defining both “felony” and “felony drug offense”, so as to require imposition of minimum 20-year sentence only if prior drug conviction as both punishable by more “than one year in prison and characterized as a felony by controlling law.

2. When the court finds that a criminal statute is ambiguous, must it then turn to rule of lenity to resolve ambiguity?

By my count, Burgess is the fourth case this Term dealing with how federal statutes define state prior offenses for purpose of certain sentencing enhancements.  Because these issues arise a lot, and because they can often generate circuit splits, I am not surprised these case often garner attention in the cert. pool.  However, with so many other issues competing for the Justices' attention, I suspect a few SCOTUS watchers are not that excited that more than 5% of the argued docket this term is focused on these state priors issues.

SCOTUS resolves easy(?) ACCA issue, provides tea leaves

As Lyle Denniston reports here at SCOTUSblog, the Supreme Court handed down two opinions this morning, including a unanimous opinion by Justice Ginsburg in Logan v. United States (available here). Here is Lyle's account of the Logan ruling:

The Logan case involved the interpretation of the phrase “civil rights restored” in the federal Armed Career Criminal Act.  Those who have been convicted previously of felonies and are then convicted of possessing guns are subject to a maximum sentence of ten years, but that maximum is increased to life for those who have had three prior convictions for violent felonies — including violent misdemeanors.  But Congress exempted from that enhancement feature those who have had their civil rights restored.  James D. Logan of Janesville, Wis., was convicted of being a felon posseesing a gun and was sentenced to 15 years in prison, based upon three prior convictions for misdemeanor battery — a crime that causes no loss of civil rights. Logan argued that convictions that carry no loss of civil rights should be treated the same as those for which rights were lost then later restored.  The Court rejected that claim. “Congress did not include offenders who retained civil rights at all times in its dispensation for offenders whose civil rights have been restored,” Justice Ginsburg said. “We are not equipped to say what statutory alteration, if any, Congress would have made had its attention trained on offenders who retained civil rights.” And, she added, the Court cannot “recast” the law in a way that Congress did not.

Logan struck me as a relatively easy case and this result is not at all surprising.  Indeed, what makes the case worth reading is mostly an effort to read between the lines for tougher cases on the horizon, ranging from Gall and Kimbrough, to harder ACCA cases to be argued in January, to the gun rights restriction debate that may surround the Second Amendment case.

Particularly for Gall and Kimbrough, the emphasis on statutory construction in Logan is notable.  Though perhaps most significant is the fact that Justice Ginsburg's authorship likely means she is not the main author for the opinions in Gall and Kimbrough.  (Same goes for CJ Roberts, who authored the other civil opinion issued today, although both cases decided today come from the Court's second sitting this Term, whereas Gall and Kimbrough came from the first.)

New attitudes about juvenile crime and punishment

This long piece from the AP, headlined "States rethink charging kids as adults," provides a detailed examination of new views