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.
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.
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.
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.
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
A 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" document, requires 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.
Friday, November 11, 2016
How many veterans are among Prez Obama's 944 federal prison commutations? How many more veterans are clemency worthy?
The 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:
- Thinking about sentenced troops on Veterans Day
- How many vets, after serving to secure liberty, are now serving LWOP sentences?
- My amicus effort to support our troops
- Should prior military service reduce a sentence?
- How about a few clemency grants, Prez Obama, to really honor vets in need on Veterans Day?
- Are special jail facilities for veterans (and other special populations) key to reducing recidivism?
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:
- "Bridgegate" now a federal sentencing story after two former New Jersey officials convicted on all federal counts after lengthy jury deliberations
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.”
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.
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:
- During the past five years, the rate of within range sentences for §2B1.1 offenders has steadily decreased (from 54.4% in fiscal year 2011 to 42.4% in fiscal year 2015).
- During the past five years, the rate of within range sentences for tax fraud offenders has decreased (from 37.8% in fiscal year 2011 to 25.8% in fiscal year 2015).
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:
From Jacksonville.com here about developments in Florida, "No Second Chance: Why juvenile offenders stay locked away"
From the Milwaukee Journal Sentinel here about developments in Wisconsin, "Juvenile offenders in legal limbo: Although life sentences without parole banned for youths, 68 state inmates not likely to benefit"
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.
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.
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."
Friday, October 21, 2016
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.
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.
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.
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)
Tuesday, October 04, 2016
Racial issues in death sentencing (and insider trading and malicious prosecution) next up for SCOTUS oral argument
As I noted in this recent post, the Supreme Court is back in action with a new fall season chock full of cases involving criminal justice issues. Today's first official day of oral argument, as noted here, involved case on how to interpret the federal bank-fraud statute and on how to apply the Double Jeopardy Clause. And the SCOTUS action gets extra exciting for sentencing fans with the first big capital case of the season, Buck v. Davis, to be heard on Wednesday. Here are excerpts from Amy Howe's lengthy overview of the case at SCOTUSblog, "Argument preview: Justices to consider role of racial bias in death penalty case":
Even Duane Buck’s attorneys describe the facts of his crime as “horrific.” Buck believed that his former girlfriend, Debra Gardner, was in a romantic relationship with another man, Kenneth Butler. On July 30, 1995, he went to Gardner’s Houston home, where he shot and killed both Gardner and Butler. Buck also shot his step-sister, Phyllis Taylor, in the chest at point-blank range; the bullet missed her heart by only an inch, but she survived.
A Texas trial court appointed two lawyers to represent Buck at his trial. One of those lawyers, Jerry Guerinot, has been described as the worst capital defense lawyer in the country: Twenty of his clients have been sentenced to death. When the Supreme Court hears oral arguments in Buck’s case next week, the decision by those attorneys to present racially inflammatory testimony by a defense expert will be at the heart of the debate.
A key issue at Buck’s trial was whether he would be dangerous in the future: Unless the jury unanimously concluded that he would be, it could not sentence him to death under Texas law. One of Buck’s former girlfriends, Vivian Jackson, testified that he had repeatedly abused her, but that fear had kept her from going to the police. However, Buck did not have any convictions for violent crimes, and a psychologist testified that he was unlikely to be dangerous in the future.
Buck’s lawyers also retained another psychologist, Dr. Walter Quijano. Quijano provided the defense team with a report in which he indicated that, as a statistical matter, Buck was more likely to commit violent crimes in the future because he is black. That report was admitted into evidence, at the request of Buck’s lawyers. After two days of deliberations, the jury concluded that Buck was indeed likely to be dangerous in the future and sentenced him to death....
There are several points of contention in the Supreme Court. The first is the merits of Buck’s argument that his trial counsel violated his constitutional right to an effective attorney when he introduced Quijano’s opinion.
Buck emphasizes that Quijano’s “testimony was so directly contrary to Mr. Buck’s interests, no competent defense attorney would have introduced it.” And the introduction of that evidence, he contends, likely “tipped the balance in the prosecution’s favor”: Although the key question before the jury was whether Buck was likely to be dangerous in the future, prosecutors failed to provide any evidence that Buck “had been violent outside the context of romantic relationships with two women, and the jurors learned that he had adjusted well to prison.” Moreover, he notes, the jury apparently “struggled to determine the appropriate sentence” for Buck, which suggests that, if Quijano’s testimony had not been admitted, at least one juror — all that would be necessary — might have voted against a death sentence.
The state concedes both that “race is an arbitrary, emotionally charged factor that has nothing to do with individual moral culpability” and that the introduction of Quijano’s opinion “was at least debatably deficient performance” by Buck’s trial lawyers. But, the state contends, Buck had failed to show that the jury might have reached a different decision if the opinion had not been introduced, because there was plenty of evidence that Buck was likely to be dangerous in the future. The state further downplays the significance of Quijano’s opinion that Buck was statistically more likely to be dangerous in the future because he is black, asserting that it “played only a limited role at trial,” particularly when the psychologist’s “ultimate conclusion” was that Buck “would likely not be a future danger.”
The other issues before the Court are more technical, but no less important: whether Buck’s case presents the kind of extraordinary circumstances that would justify relief under Rule 60(b)(6) and whether the lower courts made a mistake when they rejected his application for a certificate of appealability....
In many of the court’s recent death penalty cases, the justices have been deeply divided. Two justices — Stephen Breyer and Ruth Bader Ginsburg — have even suggested that the court should consider whether the death penalty is constitutional at all. That question is not before the court in Buck’s case, but ... oral arguments could nonetheless elicit strong opinions on the administration of death penalty from the eight-member court.
Though the Buck case is likely to garner the most media attention, there are other big legal and practical issues before Justices in two other criminal cases tomorrow. Again, SCOTUSblog provides helpful resources for these cases:
Monday, October 03, 2016
Interesting look at gender dynamics in sex offender prosecutions in North Dakota
This local article from North Dakota, which is headlined "Investigators say all sex offenders treated the same, but some studies find female criminals face lighter sentences," take a close look at the interest intersection of sex offenses and gender. Here is how the article starts:
Last month, a young Bottineau teacher was sentenced to serve about a month and a half in jail, pay $325 in court fees and undergo treatment after admitting to having sexual relations with at least two teenage boys. Marissa Ashley Deslauriers, born in 1991, pleaded guilty in Bottineau County District Court to two Class A misdemeanor charges of contributing to deprivation of a minor and two Class B misdemeanors of sexual assault.
Originally, she faced felony charges that could have resulted in 15 years in prison and $30,000 in fines, but Deslauriers reached a plea deal with prosecutors that resulted in lesser charges and two years of unsupervised probation. She was not required to register as a sex offender. The case sparked discussion about the way the legal system treats men and women who are convicted of sexual crimes, and if gender has an influence in sentencing.
There are 1,754 registered sex offenders in North Dakota, public records show. Twenty-seven of them are women. A wide range of research supports the theory that men are overwhelmingly more likely to commit sexual assault than women, but research on the differences in the way male and female offenders are treated in the justice system are hard to find.
Dr. Adam Matz, assistant professor of criminal justice at the University of North Dakota, said women, overall, tend to receive lighter sentences than men for similar offenses. Much of this is due to perceptions of women as primary caretakers for children. Matz said the age of the victim and the age of the offender are both taken into consideration with sexual crimes.
"In general, the severity of the case and the person's criminal history are probably the two biggest things in terms of sentencing decisions," Matz said. "And in general sentencing research, you do see the same trend where women tend to get more lenient sentences or are more likely to receive probation." Matz, who specializes in parole and probation, said he would not downplay probation and its impact on people's lives.
Those with little criminal history are more likely to serve lighter sentences. "Typically with females, particularly with teachers, a lot of times these are first-time offenders. They don't have a criminal history; that's another reason why there might be a disparity there," Matz said.
A study published in 2012 by a doctoral student at Arizona State University found noticeable discrepancies in the sentencing for male and female teachers convicted of having sexual relationships with students older than 15. The study noted many teachers were first-time offenders, which also can lead to lighter sentencing.
Wednesday, September 28, 2016
"How Did Chicago Get So Violent? Did the effort to eradicate the city’s gangs in the 1990s inadvertently lead to its bloody present?"
The question in the title of this post are the headline of this really interesting new Slate article. I recommend the article in full, and this extended excerpt highlights the key ideas of the piece:
The first wave of convictions stemming from Operation Headache came in March 1996. But the biggest, most symbolically meaningful blow to the Gangster Disciples was delivered in May 1997, when Hoover was convicted of 42 counts of conspiracy to distribute drugs, received a sentence of six life terms, and was transferred to a supermax prison in Colorado, where his cell was located several stories underground and his ability to communicate with the remnants of his gang were severely constrained. Soon, the GDs in Chicago had been all but neutralized, and the authorities shifted their attention to decapitating the city’s other major drug organizations, the Black Disciples and the Vice Lords.
Over the course of a roughly 10-year stretch starting in the mid-1990s, leaders from the GDs, the Vice Lords, the Black Disciples, and to a lesser extent, the Latin Kings were successfully prosecuted and taken off the street. The top-down assault appeared to work as Safer and his colleagues had hoped: violent crime in Chicago began to decline, with the city’s murder total dropping from a high of 934 in 1993 to 599 10 years later.
For a while, it looked like the trend might continue moving in a positive direction, but after dipping below 500 in 2004, the number of murders in Chicago per year leveled off and began hovering in the 400s. Over the past several years, however, the situation started getting worse; today, Chicago is once again synonymous with out-of-control gun violence, a city that regularly makes national news for the perilous existence that some of its poorest residents must endure. Over the weekend of Sept. 12, the city passed 3,000 shootings and 500 murders since the beginning of the year, surpassing in just nine months the total numbers from 2015. As of this writing, the 2016 tally is up to 3,131 shootings and 530 homicides; a recent report from the Brennan Center for Justice showed that Chicago, by itself, is responsible for half of the 13 percent increase in homicides that the country as a whole is projected to experience this year.
According to the Chicago Police Department, 85 percent of the city’s gun murders in 2015 can be attributed to gang violence — a statistic that suggests a return to the bad old days while obscuring how profoundly the nature of Chicago’s gang problem has changed in the intervening years. While experts say the Latin Kings, a Hispanic gang, continue to run a large and rigidly organized drug-selling operation on Chicago’s West Side, the majority of Chicago residents who call themselves gang members are members of a different type of group. Rather than sophisticated drug-selling organizations, most of the city’s gangs are smaller, younger, less formally structured cliques that typically lay claim to no more than the city block or two where they live. The violence stems not from rivalries between competing enterprises so much as feuds that flare up with acts of disrespect and become entrenched in a cycle of murderous retaliation.
Many close observers of Chicago’s violence believe that, as well-intentioned as it was, the systematic dismantling of gangs like the Disciples led directly to the violence that is devastating the city’s most dangerous neighborhoods in 2016. Taking out the individuals who ran the city’s drug trade, the theory goes, caused a fracturing of the city’s criminal underworld and produced a vast constellation of new entities that are no less violent, and possibly even more menacing, than their vanquished predecessors.
“Every time they hit these large street gangs, they’d focus on the leadership,” said Lance Williams, an associate professor at Northeastern Illinois University, and the co-author of a book about the rise and fall of the Black P Stone Nation, a gang that was eradicated in the 1980s. “It’s like cutting the head off a snake — you leave the body in disarray and everyone begins to scramble for control over these small little areas. And that’s where you get a lot of the violence, because the order is no longer there.” Williams added: “When you lose the leadership, it turns into chaos… What we’re dealing with now is basically the fallout of gang disorganization.”
The proliferation of small gangs has created a complicated and ever-changing patchwork of new alliances and rivalries, and instilled in many young people — predominantly poor, black men — a sense that they are vulnerable at all times to lethal attacks by members of opposing factions.
Monday, September 26, 2016
Florida paper devotes three-part editorial to assail state's sex offender residency restrictions
A helpful reader altered me to this remarkable three-part editorial from the Florida Times-Union that concluded over the weekend highlighting problems with residency restrictions for sex offenders:
Part 1: "Law is designed to fail: Many sexual predators are wandering the streets"
Part 2: "Designed to fail: Sexual predators are wandering the streets"
Part 3: "Designed to fail: Solutions for sexual predator residency requirements"
Ever eager to focus on solutions even more than problems, I will highlight here the closing sections of the last of these editorials:
A year ago, California stopped requiring all sex offenders meet residency restrictions, instead enforcing these laws only against high-risk offenders. Available housing for low-risk offenders increased dramatically, and the number of homeless offenders decreased. Counties here, such as Duval and Nassau, should immediately create working groups to look at the effectiveness of strict county residency restrictions en route to making changes. We should also look at novel ways to create more housing for released sexual felons.
Communities in Florida have begun to experiment. Several hotels that meet residency restrictions have been transformed into facilities to house sex offenders. In other places in the state, mobile home parks have been converted to complexes that serve those coming out of prison.
One of the more comprehensive programs, however, has been launched by a nonprofit in Eugene, Ore. An organization, Sponsors, provides both short-term and long-term housing for sexual offenders and predators upon their release. In addition, the organization is currently building an entire complex of apartments that will offer permanent housing for ex-felons, including those convicted of sexual offenses.
Other states such as Washington and Vermont have similarly enacted more humane and effective measures for housing sex offenders and predators that pair governmental agencies with nonprofits to locate housing.
It’s time we look at the possibility of creating such programs here. Homelessness is not the answer.
September 26, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (7)
Saturday, September 24, 2016
US House passes significant update to federal Juvenile Justice and Delinquency Prevention Act
Though it now seems that major federal statutory sentencing reform remains dead at least until the election (as I had thought months ago), this Marshall Project piece highlights that some other federal criminal justice reform has been moving quietly forward. Here are the details:
Even though the year began with strong bipartisan support for federal sentencing reform, no major changes to the criminal justice system have made it out of Congress thanks to a combination of legislative gridlock, election-year rhetoric about rising crime in some cities, and Republican reluctance to hand President Obama a major victory. But on Thursday, the House of Representatives quietly — and overwhelmingly — passed what might be the most significant justice reform measure to reach Obama in his tenure.
The bill is an update of the Juvenile Justice and Delinquency Prevention Act, which has been expired since 2007. It would withhold federal funding from states that hold minors in adult jails. Unlike previous versions of the law, the new bill would extend that protection to juveniles who have been charged with adult crimes but are still awaiting trial. The legislation would also ban states from locking up minors for so-called status offenses — things that are crimes only because of the age of the offender, such as truancy or breaking curfew.... “I’m delighted, but also optimistic,” said Rep. Bobby Scott (D-Va.), a lead sponsor of the bill. “Getting a law passed on justice issues — one that doesn’t go backward — has been a challenge, to say the least. But we ought to be able to conform the House and Senate versions and get this to the president” before his time in office runs out.
The Senate version of the bill has made it out of committee and has almost unanimous support. But it still faces an obstacle in Sen. Tom Cotton (R-Ark.), who has singlehandedly blocked the measure from being put to a quick voice vote. Cotton’s home state, Arkansas, locks up minors for running away and other status offenses at a disproportionately high rate, Mother Jones reported this week. A spokeswoman said Cotton is concerned the proposed law would erode the power of the bench. “It is prudent to allow states to determine if their judges — often in consultation with the parents and attorneys involved — should have the discretion to order secure confinement as a last-resort option,” Cotton spokeswoman Caroline Rabbitt said.
Sens. Charles Grassley (R-Iowa) and Sheldon Whitehouse (D-R.I.), the lead proponents of the bill on the Senate side, have been trying for months to reach a compromise with Cotton. If their effort fails, it would fall to Majority Leader Mitch McConnell (R-Ky.) to take up precious floor time — in a season devoted to reaching a spending deal and funding the fight against the Zika virus — with a debate and vote on the legislation.“Since it so closely resembles the Senate bill, Chairman Grassley is optimistic that it can be passed in the Senate,” said spokeswoman Beth Levine....
The JJDPA law has existed in various forms since 1974 and provides federal grants to states on the condition they adhere to several “core principles” for detaining youth: not in adult facilities, not for status offenses, and not in ways that impact different racial groups differently. But over time, loopholes have been added to the legislation, all of which the new, reauthorized bill aims to close.
States that do not want to comply with the new law, should it pass, could choose to forgo a portion of their federal funding, a modest $92 million per year to be shared across the country — assuming Congress agrees to appropriate the money. The bill also does not contain a key goal for reformers of the juvenile system: restricting the use of solitary confinement in youth prisons.
But the bill would require states to collect new data on racial disparities at every stage of the juvenile system and to present the federal government with a concrete plan for how they will address those divides. It would also require states to ensure that academic credits and transcripts are transferred, in a timely fashion, between schools and juvenile-detention facilities, and that children get full credit toward graduation for any schoolwork they completed while incarcerated. Finally, the legislation would ban the shackling of pregnant girls, provide funding for delinquency prevention and gang-intervention programs, and require states to report data on juvenile recidivism rates and other measures.
Thursday, September 22, 2016
"Under the Radar: Neuroimaging Evidence in the Criminal Courtroom"
The title of this post is the title of this notable (and quite lengthy) article available via SSRN authored by Lyn Gaudet and Gary Marchant. Here is the abstract (with one line emphasized therein for sentencing fans):
This Article analyzes court decisions in 361 criminal cases involving neuroimaging evidence through the end of 2015. There has been a steady upward trend in the number of criminal cases considering neuroimaging evidence with the number of reported decisions being the highest in the most recent period of 2013-2015. Neuroimaging evidence has been used in competency, guilt, and penalty phases of criminal trials, with the most efficacy being seen in the penalty phase, especially in capital cases.
In order to provide a helpful analysis of uses and trends of this specific type of evidence, this Article includes an identification of the specific neuroimaging modality used or requested in each case (CT, MRI, EEG, PET, SPECT), the reason for the request for neuroimaging, the legal argument involving the imaging data, and the court’s response. In addition, common concerns regarding the use of neuroimaging data are also addressed, including the complexity of the various techniques and analysis, individual variability of the brain, the time gap between scanning and the criminal act, and the ability to make statements about groups versus about one individual.
As supported by the trends demonstrated in this analysis, there has been a shift in recent years from discussion about whether neuroimaging evidence is relevant and admissible toward admissibility of this type of evidence and a focus on the substantive results and appropriate use of the neuroimaging data.
Interesting account of how Mexico invests in keeping its homicidal citizens from being sentenced to death in the US
The Marshall Project has this interesting new article headlined "How Mexico Saves Its Citizens from the Death Penalty in the U.S.: A fund is designated to train, pay and advise American defense lawyers." Here are is how it gets started:
When the body of 25-year old Lesley Hope Plott was found lying in a ditch in Russellville, Ala., in February of 2013, police had little trouble zeroing in on a suspect: hours earlier, a nearby church’s security camera had recorded her being beaten and stabbed by her estranged husband, Angel Campos Nava.
Then, Thomason received a call offering her something few lawyers in death penalty cases get: money, training, and advice, courtesy of the Mexican government. Nava’s case had caught the attention of the Mexican Capital Legal Assistance Program, created by Mexican officials in 2000 to save the country’s citizens from execution in the United States.
One of the program’s chief purposes is to help defense attorneys construct a biography of the accused—to humanize them. Poverty, family dysfunction, and developmental disability are frequent themes in their clients’ lives. When presented as part of a defense, such themes can encourage mercy among jurors and dissuade them from handing down a death sentence.
To that end, the program arranges for lawyers to go to Mexico to track down school and hospital records and stories about their clients’ lives, either paying for their travel costs or advising them on how to request money from local courts. Under the program, Mexico pays American lawyers up to $220 an hour to track potential death penalty cases around the country—watching court decisions and news stories from the moment of arrest, all the way through the last minute scramble before an execution—and advise court-appointed lawyers like Thomason.
Since 2008, the program has provided these attorneys with an average annual budget of around $4 million to track as many as 135 cases at a time, according to the program’s filings with the Department of Justice. That comes out to roughly $29,000 per case, per year. By contrast, the Equal Justice Initiative, which represents numerous inmates on Alabama’s death row, has reported that many of them were sentenced to death after their attorneys’ fees were capped at $1,000 for out-of-court trial preparation.
Wednesday, September 21, 2016
Federal District Judge reasonably asks "What’s The Deal With White Guys And Child Porn?"
Long-time readers and federal district court aficionados likely know plenty about Senior United States District Judge Richard G. Kopf, a jurist who has never been afraid to say what he is thinking (and who's gotten in trouble a few times for that tendency). As evidenced by this new post at Mimesis Law, the judge has lately been giving thought to kiddie porn and the racial demographics of certain offender groups. Here are excerpts:
In America, there is no doubt that in most circumstances being white (Caucasian in census terms) is a benefit.... But, at least in one category, it appears that being white is not a really good thing, but rather a predictor for the commission of horrible federal crimes. I refer to the production of child pornography.
The Sentencing Commission has told us that child porn consumers[* footnote] are “overwhelming white.” U.S. Sentencing Commission, Report to the Congress: Federal Child Pornography Offenses, ch. 11 at 308 n. 56 (Dec. 2012). The same thing is true for producers of child pornography. That is: "Production offenders, like non-production child pornography offenders, are a relatively homogenous group demographically compared to federal offenders generally. Among production offenders in fiscal year 2010, the overwhelming majority were male (97.0%), white (85.9%), and United States citizens (97.0%)."
Moreover, child porn producers were very different than the normal federal offender. They were employed, relatively well-educated and came from a higher socio-economic background. To be specific, ... "like non-production offenders, production offenders on average occupy a higher socio-economic status than federal offenders generally. In fiscal year 2010, 87.7 percent of production offenders were high school graduates, and 46.7 percent had at least some college. In fiscal 2010, among all federal offenders, the typical offender was not a high school graduate (51.4%), and only 19.9 percent of offenders had at least some college education. There was a high degree of employment among child pornography production offenders at the time of their arrests. Of the 197 production offenders sentenced in 2010 for which there was employment data, 76.1 percent were employed."
But in all probability, you don’t know what I mean, at least on a visceral level, by the words “child porn producer.” So let me give you an example. Be prepared to puke. The following is an accurate media summary of a child porn production case that started off in Michigan and landed on my docket as well because the united group of producers spanned our nation.
"A November arrest in a child porn case has led federal investigators to a larger ring of suspects accused of working together online to manipulate young girls into engaging in sexual acts on camera. A complaint against a California man filed in Detroit federal court Thursday revealed details of a disturbing and elaborate operation that sought to lure minors into video chatrooms where they would be urged to perform 'dares' while their images were recorded.... Federal investigators learned that members of the group served distinct roles that included 'hunters,' 'talkers,' 'loopers' and 'watchers'."
What happened to these young girls, mostly in their early teens, was horrendous. Suffice it state that they were cajoled or trapped into violating themselves in the most sickening and humiliating of ways, in one case blackmailed to continue the abuse, and in another case permitted to harm herself for the pleasure of the observers.
My part of this case was simple. The Nebraska white guy, who was 31, and a hardworking man, with post-secondary education, and respected member of his community, was confronted at his home by the FBI. He told me that he was relieved when the feds came to the door because he didn’t know how to stop. He immediately spilled his guts. I accepted the Rule 11(c) (1) (C) plea agreement, containing an appeal waiver, and requiring me to sentence the defendant to 35 years in prison. His Guideline range was life.
He was very smart to have accepted the deal because I would likely have imposed a life sentence. Despite my reservations, I approved the plea agreement to avoid a trial with the kids being forced to testify. I also sentenced him to a life of supervised release when he gets out of prison as an old man. He was capable of making, and I required him to pay, a substantial amount of restitution to the children.
As I reflected on the above, I wondered about the word “thug” with all the racial freight that word carries. I asked myself how I should describe these white child porn producers assuming I see no problem with the word “thug.” Perhaps I could call them “white devils!” Anyway, at this point I realized that my mind was wandering, so I returned to the essential question.
What the hell is wrong with white guys?
[* footnote] As I have previously noted in Fault Lines, I have some empathy for child porn consumers as opposed to child porn producers. See here.
"Assessing Time Served" and the deeply under-theorized problems of criminal history
Patrick Woods has this effective and important new article now available via SSRN titled "Assessing Time Served." Here is the abstract (which will be followed by a few comments I have about this topic):
This article examines the utility of a new way of determining when increased punishment should be imposed pursuant to “three strikes” laws or other recidivist enhancements. In the past two years, Congress and the United States Sentencing Commission have each considered criminal justice reform measures that would use the length of time an offender spent incarcerated as a proxy for the seriousness of his earlier criminal conduct. While this reform seems sound at first glance, the article ultimately concludes that its incorporation into current state and federal sentencing laws must be done carefully, if at all, and that doing so now may be premature.
The article compares this new “time served” approach with the current methods of determining the severity of the punishment imposed upon an offender for his prior crime. Current federal and state laws assess the seriousness of prior punishment using either the maximum statutory penalty — irrespective of the real sentence — or the sentence announced in court by the judge — even if only a small fraction of that sentence was actually served before the defendant was released. Compared with these methods, determining the severity of a prior punishment using a “time served” measure seems to be an improvement.
Real problems, however, lurk just below the surface. The article discusses in detail significant challenges with records gathering, defining the term of incarceration, and using the metric in a way that is consistent with due process guarantees. It suggests how the metric might be employed to minimize each of these concerns, but also concludes that the condition of state and local incarceration records may make use of the metric in the near future impracticable.
This article effectively highlights some of the practical challenges of using time actually served in prison as a metric for recidivist sentencing enhancements, and these practical challenges must be considered against the backdrop of the host of other practical difficulties federal courts have experienced in using other metrics in application of the Armed Career Criminal Act and guideline assessments of criminal history. Moreover, as the title of this post hints, I think modern criminal justice theorists and scholars ought to be working a lot more on what the author calls the "philosophical underpinnings" of recidivist sentencing enhancements. (The author usefully brackets this issue because his fundamental project in this article is not conceptual.) In many ways, I think the "war on drug" has had its biggest impact on modern incarceration through such recidivist enhancements, and I have long thought that the "philosophical underpinnings" of such enhancements can and should be greatly influenced by the types (and especially the motives) of prior offenses.
September 21, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)
Tuesday, September 20, 2016
Terrific TakePart series of article and commentary on "Violence and Redemption"
TakePart has this great "Big Issue" collection of articles, videos and commentary under the heading "Violence and Redemption: Can Rehabilitating Felons Make Us Safer." There is so much important and insightful material collected here, I cannot easily link to it all. But I can provide this introductory paragraph and some headlines/links to whet appetites:
With 5 percent of the world’s people but 25 percent of the world’s incarcerated, the United States is home to the largest prison population in the world.
A meaningful reduction in the prison population of 2.3 million people can’t happen without addressing those incarcerated for violent offenses. They make up at least 53 percent of the total in state prisons. Is that too many? Are they in for the right reasons? Are they hopeless cases, or can something be done to help reform and rehabilitate them, make them valuable members of society who won’t commit crimes again? Advocates cite three possible approaches to this problem: reforming justice, rehabilitation, and forgiveness.
Wednesday, September 14, 2016
"Righting Wrongs: The Five-Year Groundswell of State Bans on Life Without Parole for Children"
In just five years — from 2011 to 2016 — the number of states that ban death-in-prison sentences for children has more than tripled. In 2011, only five states did not permit children to be sentenced to life without parole. Remarkably, between 2013 and 2016, three states per year have eliminated life-without- parole as a sentencing option for children. Seventeen states now ban the sentence.
This rapid rate of change, with twelve states prohibiting the penalty in the last four years alone, represents a dramatic policy shift, and has been propelled in part by a growing understanding of children’s unique capacity for positive change. Several decades of scientific research into the adolescent brain and behavioral development have explained what every parent and grandparent already know — that a child’s neurological and decision-making capacity is not the same as those of an adult. Adolescents have a neurological proclivity for risk-taking, making them more susceptible to peer pressure and contributing to their failure to appreciate long-term consequences. At the same time, these developmental deficiencies mean that children’s personalities are not as fixed as adults, making them predisposed to maturation and rehabilitation. In other words, children can and do change. In fact, research has found that most children grow out of their criminal behaviors by the time they reach adulthood.
Drawing in part from the scientific research, as well as several recent U.S. Supreme Court cases ruling that life-without-parole sentences violate the U.S. Constitution for the overwhelming majority of children, there is growing momentum across state legislatures to reform criminal sentencing laws to prohibit children from being sentenced to life without parole and to ensure that children are given meaningful opportunities to be released based on demonstrated growth and positive change. This momentum has also been fueled by the examples set by formerly incarcerated individuals who were once convicted of serious crimes as children, but who are now free, contribute positively to their communities, and do not pose a risk to public safety.
In addition to the rapid rate of change, legislation banning life without parole for children is notable for the geographic, political, and cultural diversity of states passing these reforms, as well as the bipartisan nature in which bills have passed, and the overwhelming support within state legislatures.
Currently, Nevada, Utah, Montana, Wyoming, Colorado, South Dakota, Kansas, Kentucky, Iowa, Texas, West Virginia, Vermont, Alaska, Hawaii, Delaware, Connecticut, and Massachusetts all ban life without parole sentences for children. Additionally California, Florida, New York, New Jersey, and the District of Columbia ban life without parole for children in nearly all cases.
It is also important to note that three additional states — Maine, New Mexico, and Rhode Island — have never imposed a life-without-parole sentence on a child. Several other states have not imposed the sentence on a child in the past five years, as states have moved away from this inappropriate sentence both in law and in practice.
September 14, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (13)
Monday, September 12, 2016
Spotlighting the import, impact and new debates over prosecutorial control of charging juves as adults
The Atlantic has this effective new article digging deeply into the role (and possible regulation) of prosecutors in the decision to try certain juvenile defendants in adult court. (As practioners know, the decision to bind a juvenile over to adult court is often essentially a sentencing decision because the decision will often dramatically impact the maximum and minimum sentences a juvenile defendant will face.) The lengthy piece carries this lengthy headline: "Treating Young Offenders Like Adults Is Bad Parenting: As one state wrestles with the effects of trying juvenile defendants in adult courts, others reconsider the practice." I recommend the piece in full, and here are excerpts:
In 2000, voters in California approved Proposition 21, a ballot measure that, among other things, gave district attorneys the right to “direct file” juvenile offenders who committed felonies and other serious crimes like murder and sex offenses. Direct filing gives the D.A. alone the power to decide whether or not a young offender should be tried as an adult in an adult court instead of in the juvenile-justice system. In all, 15 states and Washington, D.C., have such a mechanism in place. In California, the D.A. has to make that decision within 48 hours of an arrest and usually only has the police report to guide his or her decision. In 2014, 393 young people were direct filed and tried in state adult courts. The state attorney general’s 2015 juvenile-justice report states that 88 percent of juveniles tried in adult court were convicted. Call this parenting style the tough-love approach.
Deciding to direct file a young person circumvents the role of a judge, who would otherwise conduct a “fitness hearing” to determine where an offending youth should be tried. It’s like one parent quickly and unilaterally deciding on a child’s punishment without first talking it over with the other parent. In some cases, the second parent might stand firmly behind the first, but in others, being eliminated from the decision can lead to feelings of disrespect, accusations of power-hoarding, and the unearthing of buried tensions in the relationship.
“With direct file, there’s no opportunity for it to go before a judge to make that very important decision on whether or not a child should be prosecuted as an adult,” said Nisha Ajmani, a lawyer and program manager at the Center on Juvenile and Criminal Justice who opposes the practice. She works with lawyers and young clients on direct-file cases or to prepare for fitness hearings.
But the district attorney has an incentive to eschew fitness hearings, since in California they are exhaustive and can take months. The hearings involve evaluating the young person on five criteria: the degree of criminal sophistication exhibited; whether rehabilitation is possible before the end of the juvenile court’s jurisdiction, at age 21; the delinquency history; the success of any previous attempts at rehabilitation by the juvenile court; and the circumstances and gravity of the offense that’s alleged.
California has worked in earnest in recent years to provide judges more guidance on those fitness criteria. Now the state also emphasizes factors such as the offender’s home and family environment growing up, exposure to violence and trauma, mental and emotional development, and circumstances outside of the seriousness of the crime that might be relevant to the decision to prosecute in an adult court. Call this parenting style the holistic approach. “A judge should really be the party making that decision after a fair, thorough, and neutral process,” Ajmani said, warning that district attorneys subject to elections often want to appear tough on crime to ensure their political viability. “It shouldn’t be the prosecutor who only has 48 hours to make that decision and is inherently biased to begin with.”
“The absolute reality is that we, as prosecutors, have an immense amount of power in California,” said Patrick McGrath, the Yuba County district attorney. “In some respects, I think almost everybody would agree that the extent of power that we have over charging and case disposition probably really exceeds the amount of power that a judge has.” But McGrath doesn’t think that power is misplaced: He employs direct file in his county and supports its basic premise.
Wednesday, September 07, 2016
En banc Third Circuit find as-applied Second Amendment violation in federal firearm prohibition for certain criminals
Long-time readers know that I have been expressing constitutional concerns about broad federal criminal firearm prohibitions even since the Supreme Court in Heller decided that the Second Amendment includes an individual constitutional right to keep arms. Today, the Second Amendment took a bite into federal firearm laws via a fractured Third Circuit opinion that runs 174 pages(!) in a case that might now be headed to the Supreme Court. Here is how the en banc ruling in Binderup v. US AG, No. 14-4550 (3d CIr. Sept. 7, 2016) (available here) gets started:
Federal law generally prohibits the possession of firearms by any person convicted in any court of a “crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). Excluded from the prohibition is “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” Id. § 921(a)(20)(B). And there is also an exemption for “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored,” where the grant of relief does not expressly preserve the firearms bar. Id. § 921(a)(20).
In United States v. Marzzarella we adopted a framework for deciding facial and as-applied Second Amendment challenges. 614 F.3d 85 (3d Cir. 2010). Then in United States v. Barton we held that the prohibition of § 922(g)(1) does not violate the Second Amendment on its face, but we stated that it remains subject to as-applied constitutional challenges. 633 F.3d 168 (3d Cir. 2011).
Before us are two such challenges. In deciding them, we determine how a criminal law offender may rebut the presumption that he lacks Second Amendment rights. In particular, a majority of the Court concludes that Marzzarella, whose two-step test we reaffirm today, drives the analysis. Meanwhile, a separate majority holds that the two as-applied challenges before us succeed. Part IV of this opinion sets out how, for purposes of future cases, to make sense of our fractured vote.
Tuesday, September 06, 2016
New York Times editorial spotlights "The Injustice of Making Kids Pay"
This new editorial from the Gray Lady highlights a new report that laments the imposition of economic sanctions on juve offenders and their families. Here are excerpts (with links from the original):
It takes a lot these days to surprise anyone with the irrationalities of the American criminal justice system, rife as it is with harsh and counterproductive practices that do little or nothing to improve lives or keep the public safe. But a new report, published by the Juvenile Law Center, shocks nonetheless. It illustrates the destructive results of charging court fees and fines to juveniles, many of whom come from impoverished families.
Courts impose costs on defendants in all 50 states and the District of Columbia to cover all sorts of expenses — day-to-day courtroom operations, drug and mental-health tests, even public defenders, who exist solely to represent people who can’t afford a lawyer. These charges, which mount quickly, are disruptive enough for lower-income adults who are trying to get their lives back on track. They can be an even heavier burden on juveniles, one million of whom find themselves in court each year.
When these young people or their families fail to pay, they may end up behind bars, be forced to return to court over and over again, or have their driver’s licenses suspended, making it harder for them to go to school or work. Families that are already struggling to get by may have to decide between paying the courts or buying food and clothing.
Absurdly, 11 states even charge to expunge a juvenile record, which is a major obstacle to a young person’s ability to get into college, land a job or find a place to live.
In general, the report found, these burdens — many ostensibly aimed at deterring crime — have the opposite effect: By saddling young people with piles of debt they cannot pay, they increase the likelihood that juveniles will wind up in trouble with the law again. And like so much else about the criminal justice system, these costs fall most heavily on poor and nonwhite juveniles. As one of the report’s authors put it, “Asking people to pay what they don’t have doesn’t help anyone.”
Tuesday, August 30, 2016
Lameting modern parole practices while making a case that "Jailing Old Folks Makes No Sense"
The quoted title of this post is the headline of this new New York Times op-ed authored by Geraldine Downey and Frances Negrón-Muntaner. But, as these extended excerpts from the commentary highlight, the piece is mostly focused on problems with modern parole decision-making:
In 1980, the methadone clinic that had been treating Gloria Rubero as an outpatient dropped her. She was soon desperate for drugs. In August that year, she and an associate took part in a burglary that went wrong and led to the murder of an elderly neighbor. Ms. Rubero was arrested three days later, and was eventually convicted of robbery and second-degree homicide. The judge at Ms. Rubero’s trial gave her an indeterminate sentence of 20 years to life.
At the start of her jail term, Ms. Rubero felt suicidally depressed. But over time, she devoted herself to helping others. In 1985, she became a founding member of the Youth Assistance Program and logged more than 200 hours of speaking to at-risk youth on the harshness of prison life.... Ms. Rubero also got an education: earning, first, her G.E.D.; and then, between 1992 and 1993, an associate in arts and a bachelor of science from Mercy College, in Dobbs Ferry, N.Y. She even made the dean’s list. [S]he also joined the maintenance staff, and excelled at electrical and plumbing work [and later] was accorded the very rare privilege of carrying tools like craft knives, screwdrivers and wire cutters.
Despite this record of rehabilitation, she was denied parole five times in a period of six years. Each time, the parole board concluded that Ms. Rubero could not be granted parole because the “serious” and “violent” nature of her crimes made her release “incompatible with the welfare and safety of the community.” In 1999, Ms. Rubero suffered several major strokes, and at a subsequent parole board hearing, she was unable to walk or talk. Yet she was still considered a danger to the community, and her application was denied. Ms. Rubero gradually recovered, and finally, after her sixth hearing, was granted parole and walked out of prison. She was 56 and had spent 26 years behind bars.
Many incarcerated people would be the first to acknowledge the pain and loss their crimes caused. But if prisoners older than 50 have served decades-long sentences and have shown evidence of rehabilitation, the only rationale for holding them appears to be endless punishment and retribution.
The problem is growing as the American prison population gets grayer. By 2012, there were almost 125,000 inmates age 55 and older out of a total population of 2.3 million. Even as the overall prison population continues to decrease, it is estimated that by 2030, there will be more than 400,000 over 55s — a staggering increase from 1981, when there were only 8,853. The numbers are rising despite recognition that continuing to lock up older prisoners not only does nothing to reduce crime, but is also expensive and inhumane. More and more aging people are becoming seriously ill and dying in prison. Prisons are not equipped to be nursing homes.
And there is mounting evidence that there is little, if any, public safety benefit to keeping people like Ms. Rubero in prison for so long. According to recent studies, a vast majority of people over 50 who are released from prison in the United States, including those with convictions for violent offenses, are much less likely to commit a crime than younger people who have never been incarcerated. Nationally, rearrests occur for only 2 percent of former prisoners over 50, and hardly at all among over-65s. Most people simply age out of crime.
If older people in prison pose so little danger, why not free them? As Ms. Rubero’s experience suggests, a major reason is a resistance to granting parole. The criteria of parole boards in states like New York include assessments of a prisoner’s possible threat to public safety and her chances of reintegrating into society. Yet boards primarily base their decisions to deny on the seriousness of the crime for which the person was convicted.
Overlooking the fact that elderly people who have served long sentences are not a public safety risk, parole boards focus instead on the past criminal behavior. In effect, they prefer to resentence the prisoner rather than make a judgment about the individual’s growth since entering prison.
What can be done to change course and stop spending billions of taxpayer dollars to keep people behind bars for excessive lengths of time ? An immediate first step would be for parole boards to give more weight to a prisoner’s transformation since entering her incarceration. Indefinitely locking up prisoners who pose no security risk once they have served their minimum term and who could contribute more outside is an inexcusable waste of money and human potential.
Monday, August 29, 2016
"Quantifying Criminal Procedure: How to Unlock the Potential of Big Data in Our Criminal Justice System"
The title of this post is the title of this notable new paper by my OSU colleague Ric Simmons available via SSRN. Though this paper is mostly focused on the use of big data in police practices, all serious students of sentencing know that big data can and does also play a role in risk assessments and other post-conviction decision-making. Here is the abstract:
Big data’s predictive algorithms have the potential to revolutionize the criminal justice system. They can make far more accurate determinations of reasonable suspicion and probable cause, thus increasing both the efficiency and the fairness of the system, since fewer innocent people will be stopped and searched.
However, three significant obstacles remain before the criminal justice system can formally use predictive algorithms to help make these determinations. First, we need to ensure that neither the algorithms nor the data that they use are basing their decisions on improper factors, such as the race of the suspect. Second, under Fourth Amendment law, individualized suspicion is an essential element of reasonable suspicion or probable cause. This means that either the predictive algorithms must be designed to take individualized suspicion into account, or the predictive algorithms can only be used as one factor in determining whether the legal standard has been met, forcing police and judges to combine the algorithm’s results with individualized factors. And finally, the legal standards themselves must be quantified so that police and judges can use the numerical predictions of big data in their reasonable suspicion and probable cause determinations.
These obstacles are not insurmountable. And if the necessary changes are made, the criminal justice system will become far more transparent, since the factors the algorithms take into consideration will necessarily be open for judges and the general public alike. Furthermore, setting a quantified likelihood for reasonable suspicion and probable cause will allow us to engage in a healthy debate about what those numbers ought to be, and it will also ensure conformity across different jurisdictions.
Sunday, August 28, 2016
Immediately after sentencing for attempted murder, Ohio man gives himself the death penalty by jumping off third floor
As reported in this local Ohio article, headlined "After sentencing, man jumps from courthouse third floor, dies," a sad and sudden development concluded a state sentencing proceeding on Friday. Here are the details:
A tragic turn of events occurred after a man sentenced on an attempted murder charge took his own life at the Jefferson County Courthouse.
What started as a sentencing hearing for 42-year-old Jason Binkiewiz Friday morning ended in tragedy. Jefferson County Common Pleas Judge Michelle Miller handed down a 13-year prison sentence for the charges of attempted murder and felony assault. The charge stems from a man being shot in the face outside a Dillonvale home in November 2015.
The proceedings were littered with details on a troubled past filled with a long criminal history. In some of her final remarks to the court the judge noted: "His behavior has continued over a period of 16 years, has continued to escalate and spiral out of control, resulting in somebody getting shot in the face."
But from the courtroom, things only spiraled further. As a deputy escorted Binkiewicz out of courtroom, he made his escape. "He made a run for the banister on the third floor of the courthouse and threw himself over the banister and has been pronounced dead," Jefferson County Sheriff Fred Abdalla said.
Screams filled the inside of the courthouse, and outside emergency responders rushed to the scene. Binkiewicz jumped approximately 100 feet to his death, from the third floor to the first floor.
"As soon as Binkiewicz started running, Deputy Price he was on him quick enough when he reached out, he had his shirt. It wasn't good enough, and if he held on to the shirt, most likely Deputy Price would have gone over with him," said Sheriff Abdalla. Officials are still in shock and prosecutors who have been working the case say the outcome could not have been predicted.... Because a sheriff's deputy was involved, the Steubenville police department will be handling the investigation along with the Attorney General's office.
Thursday, August 25, 2016
Ohio Supreme Court concludes it violates due process to treat a juve adjudication like adult conviction at later sentencing
As reported in this local press article, headlined "Court: Juvenile crimes can't enhance adult sentences," the Ohio Supreme Court handed down an interesting sentencing opinion today in Ohio v. Hand, No. 2016-Ohio-5504 (Ohio Aug. 25, 2016) (available here). Here is the press summary of the ruling:
Prior juvenile convictions cannot be used to escalate the severity of charges or increase the prison sentences of adults, a divided Ohio Supreme Court ruled today.
In a 4-3 decision, the justices declared that treating cases from juvenile court as prior convictions for adult-sentencing purposes is unconstitutional, violating the due-process clauses of the Ohio and U.S. constitutions, and is “fundamentally unfair.”
Justice Judith Ann Lanzinger, writing for the majority, said that juvenile court proceedings, which are civil — not criminal — matters, are designed to protect the development of those under age 18 while they are rehabilitated.
Adult felony sentences, however, are designed to protect the public and punish offenders, she wrote. “In summary, juvenile adjudication differs from criminal sentencing — one is civil and rehabilitative, the other is criminal and punitive,” Lanzinger wrote.
The full opinion is available at this link. And as this final conclusion paragraph highlights, there are lots of interesting elements of the decision that all sentencing fans will want to check out:
Treating a juvenile adjudication as an adult conviction to enhance a sentence for a later crime is inconsistent with Ohio’s system for juveniles, which is predicated on the fact that children are not as culpable for their acts as adults and should be rehabilitated rather than punished. It is widely recognized that juveniles are more vulnerable to outside pressures, including the pressure to admit to an offense. Under Apprendi, using a prior conviction to enhance a sentence does not violate the constitutional right to due process, because the prior process involved the right to a jury trial. Juveniles, however, are not afforded the right to a jury trial. Quite simply, a juvenile adjudication is not a conviction of a crime and should not be treated as one.
Massachusetts judge's probation sentence for sexual assault gives east coast its own Brock Turner
This new New York Times article, headlined "Judge’s Sentencing in Massachusetts Sexual Assault Case Reignites Debate on Privilege," reports on the latest seemingly too-lenient sentence for sexual assault stirring up controversy in the wake of a summer spent discussing the now-infamous Brock Turner case out of California. Here are the details:
The two women were asleep on a bed after drinking at a party when they were sexually assaulted. A high school athlete pleaded guilty to indecent assault and battery on a person over 14 in the case, according to court documents. But when a Massachusetts judge sentenced the defendant, David Becker, to two years’ probation last week, he reignited a debate on white privilege, leniency and judicial discretion.
The case is being compared to a rape trial in which a champion student swimmer from Stanford University, Brock Turner, received six months in jail for raping an unconscious woman behind a Dumpster at a party on campus. The judge in that case, Aaron Persky of the Santa Clara County Superior Court, was the subject of a recall effort in June.
Prosecutors in the Massachusetts case recommended a two-year sentence for Mr. Becker, 18, a former student at East Longmeadow High School, a spokesman for the Hampden County district attorney’s office, James Leydon, said in an email on Wednesday. Mr. Becker also would have had to register as a sexual offender.
But on Aug. 15, Judge Thomas Estes of Palmer District Court not only ignored the prosecutors’ recommendation, but he also allowed Mr. Becker to serve his probation in Ohio, where the defendant planned to attend college, court documents showed. Judge Estes said Mr. Becker must abstain from drugs and alcohol, submit to an evaluation for sex offender treatment and stay away from the victims, both of whom were 18, they showed.
According to The Republican, Mr. Becker’s lawyer, Thomas Rooke, said, “The goal of this sentence was not to impede this individual from graduating high school and to go onto the next step of his life, which is a college experience.”
“He can now look forward to a productive life without being burdened with the stigma of having to register as a sex offender,” Mr. Rooke said, according to The Republican. Mr. Rooke could not be reached by telephone on Wednesday.
After Mr. Becker’s sentence was made public, a petition went up online seeking names to present to state lawmakers to remove the judge. It had garnered more than 10,000 signatures by Wednesday afternoon. “This is yet another instance of a white athlete receiving a slap on the wrist for a violent sexual crime, following on the heels of the Brock Turner case in California,” the petition said.
Mr. Becker was originally charged with two counts of rape and one count of indecent assault, according to the documents. According to police reports, Mr. Becker told investigators that when one of the women “didn’t protest,” he assumed it was “O.K.,” but he denied having any physical contact with the other woman, according to the documents.
In a text message to one of the victims the next day, Mr. Becker apologized for the assault, the court documents said. The victim responded with a text telling him, “Don’t even worry about it,” but later told the police that she had said that because “she did not know what else to say,” according to a police report presented in court. The police declined to comment on Wednesday.
The sexual assault case is one of several recent episodes that activists say show a troubling trend toward lenient punishment for young white perpetrators. In one case in Colorado, a former University of Colorado student, Austin Wilkerson, 22, who was convicted of raping a female student in 2014, was sentenced to two years on work or school release and 20 years to life on probation. He also must register as a sex offender. Prosecutors said the victim had consumed too much alcohol at a party, The Daily Camera reported. “No prison time for sexual assault sends a terrible message,” the Colorado attorney general, Cynthia Coffman, said on Twitter after the decision....
Colby Bruno, a senior legal counsel with the Victim Rights Law Center in Massachusetts, said that in the 12 years she had been with the center, she has seen her share of cases involving elements of racial privilege. Even more so, she has observed a bias in favor of male suspects in court cases involving violence against women, she said in a telephone interview, adding, “This is basically business as usual for the courts.”
“There is an element in each of the cases of entitlement on the part of the perpetrators. It is something I have seen across the board in the cases that I have represented,” she said. “Giving perpetrators a second chance is not a good idea,” Ms. Bruno added. “This is a felony, not a mistake, and it has to be treated like that.”
August 25, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)
Tuesday, August 23, 2016
New Fair Punishment Project report takes close look at small number of US counties still actively utilizing the death penalty
In this post earlier this year, I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). I received an email this morning highlighting a new big project and report from the the FPP. Here are excerpts from the email:
Today [FPP] released a new report offering an in-depth look at how the death penalty is operating in the small handful of counties across the country that are still using it. Of the 3,143 county or county equivalents in the United States, only 16—or one half of one percent—imposed five or more death sentences between 2010 and 2015. Part I of the report, titled Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties examined 10 years of court opinions and records from eight of these 16 “outlier counties,” including Caddo Parish (LA), Clark (NV), Duval (FL), Harris (TX), Maricopa (AZ), Mobile (AL), Kern (CA) and Riverside (CA). The report also analyzed all of the new death sentences handed down in these counties since 2010....
The report notes that these “outlier counties” are plagued by persistent problems of overzealous prosecutors, ineffective defense lawyers, and racial bias. Researchers found that the impact of these systemic problems included the conviction of innocent people, and the excessively harsh punishment of people with significant impairments. The report notes that many of the defendants appear to have one or more impairments that are on par with, or worse than, those that the U.S. Supreme Court has said should categorically exempt individuals from execution due to lessened culpability. The Court previously found that individuals with intellectual disabilities (Atkins v. Virginia, 2002) and juveniles under the age of 18 (Roper v. Simmons, 2005) should not be subject to the death penalty under the Eighth Amendment.
In conducting its analysis, we reviewed more than 200 direct appeals opinions handed down between 2006 and 2015 in these eight counties. We found:
- Sixty percent of cases involved defendants with significant mental impairments or other forms of mitigation.
- Eighteen percent of cases involved a defendant who was under the age of 21 at the time of the offense. In Riverside County, 16 percent of the defendants were age 18 at the time of the offense.
- Forty-four percent of cases involved a defendant who had an intellectual disability, brain damage, or severe mental illness. In four of the counties, half or more of the defendants had mental impairments: Maricopa (62 percent), Mobile (60 percent), Caddo Parish (57 percent), and Kern (50 percent).
- Approximately one in seven cases involved a finding of prosecutorial misconduct. Maricopa and Clark counties had misconduct in 21 percent and 47 percent of cases respectively.
- Bad lawyering was a persistent problem across all of the counties. In most of the counties, the average mitigation presentation at the penalty phase of the trial, in which the defense lawyer is supposed to present all of the evidence showing that the defendant’s life should be spared -- including testimony from mental health and other experts, lasted approximately one day. While this is just one data point for determining the quality of legal representation, this finding reveals appalling inadequacies. In Duval County, Florida, the entire penalty phase of the trial and the jury verdict often came in the same day.
- A relatively small group of defense lawyers represented a substantial number of the individuals who ended up on death row. In Kern County, one lawyer represented half of the individuals who ended up on death row between 2010 and 2015.
- Five of the eight counties had at least one person exonerated from death row since 1976. Harris County has had three death row exonerations, and Maricopa has had five.
- Out of all of the death sentences obtained in these counties between 2010 and 2015, 41 percent were given to African-American defendants, and 69 percent were given to people of color. In Duval, 87 percent of defendants were Black in this period. In Harris, 100 percent of the defendants who were newly sentenced to death since November 2004 have been people of color.
- The race of the victim is also a significant factor in who is sentenced to death in many of these counties. In Mobile County, 67 percent of the Black defendants, and 88% of all defendants, who were sentenced to death were convicted of killing white victims. In Clark County, 71 percent of all of the victims were white in cases resulting in a death sentence. The report noted just three white defendants sentenced to death for killing Black victims between 2010 and 2015. One of those cases was from Riverside, and in that case the defendant was also convicted of killing two additional white victims. The two other cases were from Duval.
- Five of the 16 “outlier counties” are from Florida and Alabama, the only two states that currently allow non-unanimous jury verdicts. In Duval, 88 percent of the decisions in the review period were non-unanimous, and in Mobile the figure was 80 percent.
Part II of this report, which will be released in September, will look at the remaining eight “outlier counties,” including: Dallas (TX), Jefferson (AL), Pinellas (FL), Miami-Dade (FL), Hillsborough (FL), Los Angeles (CA), San Bernardino (CA), and Orange (CA).
August 23, 2016 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)
Friday, August 19, 2016
US Sentencing Commission finalizes its priorities for the guideline amendment cycle ending May 1, 2017
This new Federal Register notice from the US Sentencing Commission reports on the results of the USSC's meeting yesterday in which the Commission "identified its policy priorities for the upcoming amendment cycle." Here are what I consider to be highlights from the fourteen listed priorities:
[T]he Commission has identified the following priorities:
(1) Continuation of its work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendations set forth in the Commission’s 2011 report to Congress, titled Mandatory Minimum Penalties in the Federal Criminal Justice System, including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c), and to develop appropriate guideline amendments in response to any related legislation.
(2) Continuation of its multi-year examination of the overall structure of the guidelines post-Booker, possibly including recommendations to Congress on any statutory changes and development of any guideline amendments that may be appropriate. As part of this examination, the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.
(3) Continuation of its study of approaches to encourage the use of alternatives to incarceration.
(4) Continuation of its multi-year study of statutory and guideline definitions relating to the nature of a defendant’s prior conviction (e.g., “crime of violence,” “aggravated felony,” “violent felony,” “drug trafficking offense,” and “felony drug offense”) and the impact of such definitions on the relevant statutory and guideline provisions (e.g., career offender, illegal reentry, and armed career criminal), possibly including recommendations to Congress on any statutory changes that may be appropriate and development of guideline amendments that may be appropriate.
(5) Continuation of its comprehensive, multi-year study of recidivism, including (A) examination of circumstances that correlate with increased or reduced recidivism; (B) possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons, and promote effectiveness of reentry programs; and (C) consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study....
(9) Study of offenses involving MDMA/Ecstasy, synthetic cannabinoids (such as JWH-018 and AM-2201), and synthetic cathinones (such as Methylone, MDPV, and Mephedrone), and consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study.
(10) Possible consideration of whether the weapon enhancement in §2D1.1(b)(1) should be amended to conform to the “safety valve” provision at 18 U.S.C. § 3553(f) and §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases)....
(14) Consideration of any miscellaneous guideline application issues coming to the Commission’s attention from case law and other sources, including possible consideration of whether a defendant’s denial of relevant conduct should be considered in determining whether a defendant has accepted responsibility for purposes of §3E1.1.
Wednesday, August 17, 2016
"Overlooked: Women and Jails in an Era of Reform"
Since 1970, there has been a nearly five-fold increase in the number of people in U.S. jails — the approximately 3,000 county or municipality-run detention facilities that primarily hold people arrested but not yet convicted of a crime. Despite recent scrutiny from policymakers and the public, one aspect of this growth has received little attention: the shocking rise in the number of women in jail.
Women in jail are the fastest growing correctional population in the country — increasing 14-fold between 1970 and 2014. Yet there is surprisingly little research on why so many more women wind up in jail today. This report examines what research does exist on women in jail in order to begin to reframe the conversation to include them. It offers a portrait of women in jail, explores how jail can deepen the societal disadvantages they face, and provides insight into what drives women’s incarceration and ways to reverse the trend.
This Vera fact-sheet provides this additional information about some of the report's various findings and themes:
Available research to help explain why women are increasingly incarcerated in U.S. jails is scarce, dated, and limited in scope. Nevertheless, general data about women in the criminal justice system provides clues about who these women are, and why they end up in jail. Like men in jail, they are disproportionately people of color, overwhelmingly poor and low-income, survivors of violence and trauma, and have high rates of physical and mental illness and substance use.
The majority are charged with lower-level offenses—mostly property and drug-related—and tend to have less extensive criminal histories than their male counterparts. Unlike incarcerated men, women in jails are often primary caregivers to their young children—nearly 80 percent of women in jails are mothers, and most are single parents.
Once incarcerated, women must grapple with systems, practices, and policies that are designed for the majority of the incarcerated population: men. With limited resources, jails are often ill-equipped to address the challenges women face when they enter the justice system. As a result, many women leave jail with diminished prospects for physical and behavioral health recovery, with greater parental stress and strain, and in even more financially precarious circumstances than before becoming caught up in the justice system.
As interest in rolling back the misuse and overuse of jail increases, women frequently remain an afterthought in discussions about reform; yet the roots and trajectory of their increasing rate of jail incarceration demand further study. This report documents the existing foundation for reform that can potentially set the stage for further, well-crafted programs and practices to stem the flow of women cycling through the nation’s local jails.
Federal district judge assails prosecutors for not seeking more prison time for cooperators in government corruption cases
This local article from New Jersey, headlined "Judge blasts U.S. attorney during sentencing of Guttenberg contractor in theft," reports on a federal judge expressing concern that federal prosecutors are being too soft in sentencing recommendations in a notable white-collar setting. Here are the details:
A federal judge repeatedly criticized the U.S. Attorney's Office in Newark during a hearing Wednesday, scolding prosecutors for seeking light sentences -- sometimes with no prison time -- for people who plead guilty to corruption and related offenses.
Before sentencing a Guttenberg contractor who conspired with Union City officials to steal federal housing funds, U.S. District Judge William H. Walls spent several minutes upbraiding the U.S. Attorney's Office for a "ridiculous" pattern of bringing corruption cases and then seeking lenient sentences for defendants who plead guilty.
"That is so ridiculous it makes no sense in the context of true law enforcement," Walls said from the bench. "This is sheer legal nonsense." "If you swindle the government, regardless of your status, you should go to jail," he added.
Despite his protests, Walls agreed in the end with prosecutors, who had filed motions to avoid mandatory sentencing guidelines, and sentenced the defendant in Wednesday's case to three years of probation instead of prison.
Walls, a senior judge appointed by President Bill Clinton, is also presiding over the corruption trial of U.S. Sen. Robert Menendez. Attorneys for Menendez, D-Paramus, deny the charges and have sought to quash the indictment. Justice Department officials in Washington are handling that prosecution, not the U.S. Attorney's Office in Newark.
U.S. Attorney Paul Fishman has made corruption cases a hallmark of his tenure and his office is prosecuting Bill Baroni and Bridget Anne Kelly, two former associates of Governor Christie's who have been implicated in the George Washington Bridge lane-closure case. Christie, who was U.S. attorney before Fishman, also made corruption cases a highlight of his term.
Since President Obama appointed him in 2009, Fishman has secured convictions for several top officials including the former chairman of the Bergen County Democratic Organization, Joseph Ferriero; a former Trenton mayor, Tony Mack; and the former chairman of the Port Authority of New York and New Jersey, David Samson, who is also a former New Jersey attorney general.
A spokesman for Fishman, in response to Walls's comments, noted that defendants who cooperate with prosecutors are entitled to "some consideration" at sentencing. “It is firmly rooted in our system of justice that a defendant who admits his own guilt and cooperates in the government's investigation or prosecution of criminal conduct is entitled to some consideration at the time of sentencing," said Fishman spokesman Matthew Reilly. "It is the prosecution's responsibility to bring that information to the attention of the court, and the court has the discretion to determine how much weight to give it.”
Darren Gelber, a lawyer at the Wilentz, Goldman and Spitzer firm and a former president of the Association of Criminal Defense Lawyers of New Jersey, said "Judge Walls has a reputation of being a tough sentencer."
"I'm sure he like others has become increasingly frustrated with the perception that corruption is all too prevalent in our state," said Gelber, who was not involved in Wednesday's case.
The U.S. Attorney's Office charged that Leovaldo Fundora, the owner of Falcon Remodeling of Guttenberg, conspired with two public officials in Union City to steal federal housing funds. The two Union City officials instructed Fundora to collude with two other businesses, which are unnamed in court papers.... Prosecutors estimated losses from the scheme between $120,000 and $200,000.
"I deeply regret what I have done," Fundora told the court as his wife and daughter sat behind him. "I know it's going to take a long time to get my reputation back, but I will try my best." His attorney, Raymond Flood, said Fundora was a Cuban immigrant who had been working since he was 12 years old. "He's been a criminal for four years," Walls noted, "four years that he swindled the government."
Fundora pleaded guilty in 2013 and his theft conviction carried a maximum sentence of 10 years and a $250,000 fine. At Fundora's sentencing hearing Wednesday, prosecutors recommended a much lighter sentence and Walls, despite his critical comments, agreed. The U.S. Attorney's Office filed what is known as a "5K1.1" motion, asking the judge to depart from the federal sentencing guidelines to impose a lighter punishment on Fundora. Walls sentenced Fundora to three years of probation, ordered him to pay $73,753 in restitution, and imposed a $2,000 fine.
"This is absolutely ridiculous and I will not do it again," Walls told the assistant U.S. attorney handling the case, Barbara Llanes. Walls said businesses that win contracts from government agencies should hold themselves to a higher standard. He suggested the U.S. Attorney's Office was more interested in getting favorable conviction statistics than pursuing tough punishments. "The society is being swindled, and your office seems to care about notching wins," the judge told Llanes.
Responding to Walls's questions, Llanes noted that the two Union City public officials -- Johnny Garces and Washington Borgono, who both pleaded guilty -- have not been sentenced. Prosecutors would not file "5K1.1" motions for them, she added.
August 17, 2016 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0)