Sentencing Law and Policy

"Vulnerability and Just Desert: A Theory of Sentencing and Mental Illness"

The title of this post is the title of this significant new article by E. Lea Johnston, which is now available via SSRN. Here is the abstract:

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms.

The Article then explores the significance of this differential impact for sentencing within a retributive framework.  It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm proximately caused by the state during confinement and addresses in particular the troublesome issue of prison violence.  It then turns to just desert theory and principles of ordinal and cardinal proportionality to identify three ways in which vulnerability to serious harm may factor into sentencing.

In so doing, the Article advances the current debate about the relevance of individual suffering to retributivism and lays the theoretical groundwork for the consideration of vulnerability due to mental illness as a morally relevant element in sentencing decisions.

Is TJ Lane eager to be the "uncommon" juvenile murderer who can constitutionally get an LWOP sentence?

The question in the title of this post is prompted by this local news report about a high profile state sentencing proceeding which took place in Ohio this morning.  The piece is headlined "Ohio school shooter, wearing 'KILLER' T-shirt, sentenced to life in prison," and here are excerpts:

An Ohio judge has sentenced T.J. Lane, the Ohio teen charged with shooting three students to death and wounding three others last February, to life in prison without parole.

Lane showed up to his sentencing wearing a white T-shirt with the word "KILLER" in capital letters scrawled on it -- the same word police say he had emblazoned on his shirt the day of the shootings at Chardon High School.

Lane, 18, pleaded guilty last month to all charges against him in the Feb. 27, 2012, shootings, in which he opened fire on a cafeteria table full of students in the rural community of Chardon.

In a brief statement during his sentencing on Tuesday, Lane flipped his middle finger to people in the courtroom, which included family members of his victims, reported NBC affiliate WKYC.com.  He revealed his "KILLER" T-shirt to the court once he was inside, taking off a blue button-down shirt he had worn on the way in, the station reported.

Three students -- Demetrius Hewlin, 16; Russell King Jr., 17; and Daniel Parmertor, 16 -- were killed last February.  Nate Mueller and Joy Rickers were wounded, as was Nick Walczak, who is paralyzed from the waist down, according to Reuters.

Lane has not given a motive for the shootings, which rocked the tiny town 30 miles outside Cleveland.

The families of the boys who died in the shooting have attended every one of Lane’s court hearings, The Plain Dealer said.  "I feel he should be locked up for the rest of his life," Domenick Iammarino, grandfather of Daniel Parmertor told The Plain Dealer ahead of the sentencing.  "It was a despicable, premeditated act.  He should breathe his last breath in prison."

Those readers involved with juvenile sentencing or following closely modern Eighth Amendment rulings concerning life without parole sentences (LWOP) know that the Supreme Court in its recent ruling in Miller v. Alabama stated that "given all we have said in Roper, Graham, and this decision 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." It would seem that TJ Lane, who was well past his seventeenth birthday at the time of his seemingly random act of mass murder, was eager to use his time in court today to help ensure that he could be a "poster child" for the kinds of cases and kinds of juvenile defendants for which an LWOP sentence may still be constitutionally permissible.

A few recent related posts:

• "Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases"
• "Constitutional Line Drawing at the Intersection of Childhood and Crime"
• Is Miller an Eighth Amendment "bombshell or baby step"?

Comments on Steubenville outcomes: "Juvenile Court is supposed to be better than this"

My Ohio State College of Law colleague Kimberly Jordan, who helps runs OSU's Justice for Children Project, sent me the following interesting (sentencing-related) comments following today's verdicts and sentences in the (surprisingly?) high-profile juvenile sex offense case in Steubenville, Ohio:

The intersection of social media, teen drinking, small town football, and sex led to two young men, Trent Mays and Ma’lik Richmond, being adjudicated delinquent in juvenile court this weekend -- the equivalent of a guilty finding if the boys had been adults at the time of the incident.  Their being found guilty is not a huge surprise; the prosecution did a tremendous job pulling thousands of text messages and social media posts to make their case.  The surprise is that the court failed to adequately address their disposition, or imposition of the sentence.  From all appearances, no investigative work was done by the court post-adjudication.  That means no pre-sentence investigation, social history, or risk assessment tool was utilized to determine what punishment was appropriate for these boys.  Their attorneys, in prior hearings, had presented letters and documents to the court to argue for their pre-trial release, but did not have the opportunity today to present any witness testimony or other information before Judge Lipps ordered them remanded to juvenile prison.

This is one unique function of juvenile court; judges are given wide latitude in fashioning a disposition that serves to meet the needs of the child and hold him accountable for his offense.  As an attorney, though, I am shocked at the serious deprivation Trent and Ma’lik are now facing, without any attention paid to their mental health, possible intervening life circumstances, prior participation (or not) in rehabilitative services, and individual strengths and weaknesses.  Yes, they did the crime, but juveniles are not subject to mandatory sentences.  Trent and Ma’Lik were not tried as adults.  They could have been, having been charged with the serious crime of rape.  The prosecutor handling the case for the State of Ohio has the discretion whether to ask the juvenile court to bind over, or transfer the juvenile’s case to adult court.  Certain categories of offense are automatically transferred, but rape is not one of them (the legislature could certainly include it, but has wisely left transfer for the murder categories of crime).  In order for the juvenile court to exercise discretion to transfer a case to the adult criminal court, it must make a finding that the particular juvenile is not amenable to juvenile court treatment.  Given that Trent and Ma’lik had never been in trouble with the juvenile court before, this likely would have been an uphill battle for the prosecution.

Since the case stayed in juvenile court, only juvenile court sentences -- called dispositions -- were available if the boys were found guilty.  Here, Judge Lipps utilized the most severe punishment possible for Trent and Malik -- commitment to The Department of Youth Services (DYS), or juvenile prison.  Both boys will be assessed for their treatment needs once at the facility, including undergoing assessments to determine their level of risk for re-offending in a sexual manner.  They will be treated like inmates, but they will also go to school and receive counseling, likely both in groups and as individuals.  Their stay at DYS will be determined by the amount of progress they make in meeting their treatment goals. Trent, however, will serve a minimum of two years in DYS, while Ma’lik will serve a minimum of one year.  They can both be held until they are 21 years old.

Some might wonder whether a 4-5 year juvenile sentence is enough punishment for these boys’ actions.  In Ohio, juveniles can be sentenced to both juvenile and adult time if they are deemed “Serious Youthful Offenders.”  Again, the individual prosecutor handling the case has the decision making power; the ultimate determination is made by the juvenile court.  The court has to decide that, “given the nature and circumstances of the violation and the history of the child, the length of time, level of security, and types of programming and resources available in the juvenile system alone are not adequate to provide the juvenile court with a reasonable expectation” that the purposes of the juvenile court will not be met. O.R.C. 2152.13(D)(2)(a)(i).  This boils down to a judge believing that the juvenile court’s punishment will not be enough to either rehabilitate the child, or is not adequate to hold the child accountable for his actions, or both.

Regardless of whether the boys serve anywhere close to the maximum sentence, there will be a determination, at the end of their prison stay, about whether they will have to register as sex offenders.  That determination is rightly made after the provision of rehabilitative services at DYS.  At the time of their release, the court will hold a hearing to determine the effectiveness of their treatment, and determine whether registration is necessary to protect the public.

Juvenile court was the right place for Trent and Ma’lik.  Regardless of the circumstances surrounding them in Steubenville football and politics, their actions were ones of teenagers.  Criminal, hurtful, and horrid acts, but ones that they can learn from.  They are not hardened criminals and their lives are not over.  Hopefully, their future interactions with the court, in addressing their treatment and possible registration issues, will be more focused on their individual rehabilitative efforts, so that all is not lost for these young men.

"Deporting the Pardoned"

The title of this post is the title of this notable paper by Jason Alexis Cade.  As the paper's abstract reveals, this work touches on various issues that ought to be of interest to a various sentencing fans:

Federal immigration laws make noncitizens deportable on the basis of state criminal convictions.  Historically, Congress implemented this scheme in ways that respected the states’ sovereignty over their criminal laws.  As more recent federal laws have been interpreted, however, a state’s decision to pardon, expunge, or otherwise set-aside a conviction under state law will often have no effect on the federal government’s determination to use that conviction as a basis for deportation.  While scholars have shown significant interest in state and local laws regulating immigrants, few have considered the federalism implications of federal rules that ignore a state’s authority to determine the continuing validity of its own convictions.

This Article contends that limitations on the preclusive effect of pardons, expungements, appeals, and similar post-conviction processes undermine sovereign interests in maintaining the integrity of the criminal justice system, calibrating justice, fostering rehabilitation, and deciding where to allocate resources.  In light of the interests at stake, Congress should be required to clearly express its intent to override pardons and related state post-conviction procedures.  A federalism-based clear statement rule for statutory provisions that restrict generally applicable criminal processes would not constrain Congress’s power to set immigration policy, because Congress remains free to make its intent clear in the statute. But the rule would ensure that Congress, rather than an administrative agency, has made the deliberative choice to upset the usual constitutional balance of federal and state power.

Does new Eighth Amendment limits on juve sentencing redefine requirements of juve transfer proceedings?

The question in the title of this post, to which I know many folks involved with juvenile justice reform have given thought, is prompted today by some interesting dicta at the end of an interesting Sixth Circuit concurring opinion rejecting an interesting habeas claim of ineffective assistance concerning a lawyers's failure to contest a Tennessee juve's transfer to adult court for a murder prosecution. The ruling in Howell v. Hodge, No. 10-5493 (6th Cir. Mar. 13, 2013) (available here), is mostly focused on habeas realities and Tennessee transfer laws, but these paragraphs at the end of Judge Stranch's concurring opinion out to be of broader interest:

I have recounted the evidence supporting the decision of the juvenile court at length because I believe it is important to clarify what I find problematic about the analysis of the expert reports and testimony.  Clarification is especially important due to the significance of transferring a juvenile to adult court for trial and sentencing, even where a terrible crime such as this one is at issue. The United States Supreme Court’s recent decision in Miller v. Alabama, 132 S. Ct. 2455, 2468 (2012), reviewed the considerations that it found must separate sentencing of adults from that of children, including: a juvenile’s impetuosity and lack of appreciation of risks and consequences; her inability to escape brutal and dysfunctional social or home situations; her incompetencies in dealing with the criminal justice system; and other factors relating to the diminished moral culpability of children.  The differences that make juveniles more susceptible to influence also result in a heightened capacity for change and, therefore, a greater prospect for reform. Id. at 2464-65, 2469.  Thus, in reviewing a decision to transfer a juvenile to adult court — especially one that results, as here, in a sentence of life without parole — Miller teaches that we must always be cognizant of “the great difficulty . . . of distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’” Id. at 2469 (quoting Roper v. Simmons, 543 U.S. 551, 573 (2005)).  These considerations and concerns are highlighted by the specific holding in Miller — that the Eighth Amendment prohibits states from imposing sentences of “mandatory life without parole for those under the age of 18 at the time of their crimes.” Id. at 2460.

Miller’s holding does not categorically foreclose the sentence of life without the possibility of parole imposed on Howell.   Language in the Court’s opinion, however, highlights my concerns about the analysis necessary when making and reviewing decisions to transfer juveniles to adult court and raises questions regarding the propriety of the sentence of life without the possibility of parole in this case.   The Miller majority observed that the reasoning of Graham v. Florida, 130 S. Ct. 2011 (2010), upon which it relied and which prohibits the imposition of life without the possibility of parole sentences on juvenile offenders for nonhomicide crimes, “implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.” Miller, 132 S. Ct. at 2465.  The majority also observed that “appropriate occasions for sentencing juveniles to [life without the possibility of parole] will be uncommon.” Id. at 2469. Moreover, in his concurring opinion, Justice Breyer argued that, based on Graham, “the kinds of homicide that can subject a juvenile offender to life without parole must exclude instances where the juvenile himself neither kills nor intends to kill the victim.” Id. at 2475-76.  As here, one of the defendants in Miller was found guilty of felony murder and was not responsible for the killing, and no evidence indicated that he had any intent to kill.  Id. at 2477.  In Justice Breyer’s view, before the State could continue to impose a sentence of life without parole for this defendant, it would first need to determine whether he “kill[ed] or intend[ed] to kill” because, “without such a finding, the Eighth Amendment as interpreted in Graham forbids sentencing [the defendant] to such a sentence, regardless of whether its application is mandatory or discretionary under state law.” Id. at 2475 (internal quotation marks omitted).  Though the scenario posited has parallels to Howell’s situation, Miller is not necessarily dispositive and these issues are not before us today

"'The Judge, He Cast His Robe Aside': Mental Health Courts, Dignity and Due Process"

Hard-core Bob Dylan fans will should appreciate the title of this new Michael Perlin article available via SSRN, and all criminal justice fans should appreciate the importance of the substance of this new piece. Here is the abstract:

One of the most important developments in the past two decades in the way that criminal defendants with mental disabilities are treated in the criminal process has been the creation and the expansion of mental health courts, one kind of “problem-solving court.” There are now over 300 such courts in operation in the United States, some dealing solely with misdemeanors, some solely with non-violent offenders, and some with no such restrictions. There is a wide range of dispositional alternatives available to judges in these cases, and an even wider range of judicial attitudes. And the entire concept of “mental health courts” is certainly not without controversy.

These courts offer a new approach – perhaps a radically new approach – to the problems at hand. They become even more significant because of their articulated focus on dignity, as well as their embrace of therapeutic jurisprudence, their focus on procedural justice, and their use of the principles of restorative justice. It is time to restructure the dialogue about mental health courts and to begin to take seriously the potential ameliorative impact of such courts on the ultimate disposition of all cases involving criminal defendants with mental disabilities.

There has been much written about these courts, but little attention has been paid to two issues that must be considered seriously: the quality of counsel available to persons in mental health courts, and the question of whether the individual is competent to engage in mental health court proceedings. These are both discussed extensively in this paper.

Much of the recent debate on mental health courts has focused either on empirical studies of recidivism or on theorization. This entire discussion, while important and helpful, bypasses the critical issue that is at the heart of this paper: do such courts provide additional dignity to the criminal justice process or do they detract from that? Until we re-focus our sights on this issue, much of the discourse on this topic remains wholly irrelevant.

In Part I of this paper, I will first discuss the underpinnings of therapeutic jurisprudence. I will next, in Part II, look at the structure of mental health courts, and will then raise the two concerns about such courts that are, I believe, of particular relevance to which I just alluded: questions of adequacy of counsel and the competency of defendants to voluntarily participate in such court proceedings. In Part III, I will then consider the role of dignity in this process, and look to ways that therapeutic jurisprudence can promote dignity in this context.

In Eighth Circuit, US Attorney says Miller is "substantive" and so should be applied retroactively

A helpful reader sent me this week a copy of a notable filing from a federal 2255 action in Johnson v. US, No. 12-3744, involving a federal defendant seeking resentencing based on the Supreme Court's Miller decision concerning the unconstitutionality of mandatory LWOP for juvenile offenders. The filing is notable because the feds concede that Miller can and should be given retroactive effect because, in the government's view, Miller announced a new rule that is "substantive."  Here is how the lengthy filing, which can be downloaded below, gets started:

The United States of America, by and through its attorneys, B. Todd Jones, United States Attorney for the District of Minnesota, and Jeffrey S. Paulsen, Assistant United States Attorney, submits this memorandum in response to petitioner Kamil Hakeem Johnson’s November 16, 2012, Motion Pursuant to Title 28 U.S.C. § 2244, Requesting Authorization To File a Second or Successive 28 U.S.C. § 2255 To The District Court (“Application”).

Johnson, who was a juvenile at the time of his 1996 offense, seeks authorization to file a second motion under Section 2255 to challenge the constitutionality of his mandatory life-without-parole sentence.  In Miller v. Alabama, 132 S. Ct. 2455, 2460 (2012), the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”  Although the Court had earlier held that a lifewithout- parole sentence for a non-homicide offense committed by a juvenile is always unconstitutional, see Graham v. Florida, 130 S. Ct. 2011 (2010), Miller did not bar such a sentence for a homicide committed before the age of 18.  132 S. Ct. at 2469. But under Miller, the sentencer for such a juvenile offense must have “discretion to impose a different punishment.” Id. at 2460.

Johnson’s mandatory life sentence is therefore constitutionally flawed.  This Court may certify a second or successive Section 2255 motion where, as relevant here, the application makes a prima facie showing that it relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court,” 28 U.S.C. § 2255(h)(2).  Because the United States agrees that Johnson’s reliance on Miller makes such a prima facie showing, his motion should be granted and the case certified for filing in the district court.

Download USA Miller 2255 Response

Is Miller an Eighth Amendment "bombshell or baby step"?

I have the honor and pleasure of participating today in a fantastic Missouri Law Review symposium which is to explore the question in the title of this post.  This webpage details today's schedule of panels and speakers, and this page reports on these essentials of today's event:

This year's Missouri Law Review Symposium will focus on constitutional, practical and policy matters, regarding juveniles and sentencing more generally, that now challenge courts, legislatures and attorneys in the opinion's wake. 

On the constitutional front, in what ways are adult offenders who are subject to mandatory sentencing schemes asking lower courts to extend Miller, and how are those courts replying?  The Miller opinion extends the Court's "death is different" doctrine to mandatory life-without-parole sentences for juveniles: should that doctrine, requiring individualized sentencing, apply in other contexts?  How are state legislatures and Congress responding — and how should they respond — in designing sentencing procedures for juvenile homicide offenders?  What special challenges will attorneys face when representing a juvenile in a life-without-parole sentencing trial?  Morally, to what extent, if any, do recent discoveries in developmental psychology and neuroscience shed normative light for courts and legislatures on juvenile offenders.

Judge Nancy Gertner, Professor of Practice at Harvard Law School, will deliver the keynote address.  She will be joined by eminent attorneys, inside and outside the academy, to explore these and other important questions regarding criminal sentencing in general and juvenile sentencing in particular.

Noting the intersection of mental illness and gender in incarceration nation

This recent article in the Denver Post, headlined "Two of three women in Colorado prisons diagnosed with psychological disorders," provides a notable window into the impact and import of issues of mental illness and gender with regard to who commits crimes and gets sent to prison for their crimes.  Here is how the piece starts:

The number of Colorado female prisoners diagnosed with psychological disorders has risen sharply to more than twice the level of male prisoners.

The women are almost without exception victims of severe sexual and physical abuse, experts say. They cycle through jail and prison, often because they don't get adequate treatment or community support.

"The trauma histories are extreme," said Theresa Stone, chief of mental health at Denver Women's Correctional Facility. "It's hard to hear what these women have been through."

While most women are incarcerated for nonviolent crimes, a certain percentage of them are committing increasingly violent acts, Stone said.

"Women are in many cases extremely violent," she said. "I think we're seeing the impact of abuse and mental illness."

The state prison system has in recent years taken great strides in diagnosing and addressing the needs of mentally ill women, Stone said. There is drug counseling, psychological treatment and group therapy. Some women live in highly structured therapeutic communities in special pods. The first step was identifying the true scope of the problem, Stone said.

In 2001, a Colorado Department of Corrections review determined that 39 percent of women incarcerated in Colorado were diagnosed with some type of mental illness. A Dec. 31 report says that 67 percent of those women are mentally ill.

That is slightly lower than the national rate of women incarcerated in prison. According to a December 2006 Department of Justice study, 73 percent of women in state prisons nationally have some type of mental disorder. Within the general population, 12 percent of women have a diagnosed mental disorder, the same report says.

The percentage of men in Colorado prisons with a diagnosed mental illness also increased dramatically in the same time frame — from 18 percent to 30 percent — but the ratio is less than half the level of female inmates.

The percentage of female prisoners suffering mental conditions, including schizophrenia, bipolar disorder and major depression, has always been high but many women hadn't been diagnosed, experts say. Many of the women also had declined to seek treatment until they were behind bars.

Does God care who wins when federal judges impose sentences?

The silly question in the title of this post is prompted in part by last month's Sports Illustrated cover which asked "Does God Care Who Wins the SuperBowl?"  Whatever your answer to that important ecumenical sports query, my version of the question above is a response today to this new local federal sentencing story from Vermont headlined "Virginia pastor credits 'the mercy of God' in custody dispute sentencing: Kenneth Miller sentenced to 27 months but released pending appeal."  Here are the divine (and fascinating) particulars of a notable federal sentencing process:

A Mennonite pastor who helped a still-missing woman and her daughter flee the country — and a custody fight with the woman’s former lesbian partner — joined his supporters in song Monday evening in Burlington after learning his 27-month prison sentenced could be put on hold while he appeals his conviction.

Kenneth Miller was still wearing his prison jumpsuit when he left federal court in Burlington and met a crowd of about 100 supporters who came to Vermont from as far away as his home state of Virginia.   “I am grateful for the mercy of God,” Miller said before joining his supporters in singing a hymn, “Our God, He is alive.”

During a two-hour sentencing hearing, Miller told U.S. District Court Judge William Sessions III he couldn’t promise he would not again aid in international parental kidnapping.  Last summer a jury found him guilty of helping Lisa Miller and her now-10-year-old daughter, Isabella, travel from Virginia to the Canadian border and then on to Nicaragua via the Toronto airport.   Lisa Miller and Isabella are still believed to be hiding in Central America.  They are not related to the pastor.

Kenneth Miller, 47, of Stuarts Draft, Va., said he acted out of conscience and a religious belief that finds the idea of same-sex marriage offensive after a desperate Lisa Miller came to him in September 2009.  Miller said the woman pleaded for help escaping a court order that Isabella spend time with her former partner, Janet Jenkins, of Fair Haven, Vt....

Sessions said he admired Miller for the depth of his convictions, but he could not allow him to choose God’s law over his country’s, saying the pastor had helped deprive Isabella of Jenkins’ love.  “The horror of this cannot be overstated,” Sessions said.

Assistant U.S. Attorney Christina Nolan said Kenneth Miller’s actions were not those of someone full of love and compassion for other people — particularly Jenkins — as he and others have claimed.  “He didn’t see her as a human being.  He saw her primarily as a homosexual associated with the powers of darkness,” Nolan said.

Lisa Miller and Jenkins were joined in a Vermont civil union in 2000, and Isabella was born to Lisa in 2002. The couple split in 2003, and a Vermont family court gave custody of Isabella to Lisa Miller with regular visitation for Jenkins.  Lisa Miller then returned to Virginia, became a conservative Christian, renounced homosexuality and sought full custody. Two months after Lisa Miller and Isabella fled the country, a Vermont family court judge transferred custody of the girl to Jenkins, who was not in court Monday.

Kenneth Miller had been jailed since Jan. 24 for contempt of court after refusing repeated orders to testify before a federal grand jury seeking information about others involved in the flight of Lisa Miller and Isabella. At the end of Monday’s hearing, Sessions released him from the contempt citation saying additional incarceration was unlikely to compel him to testify.

Kenneth Miller’s attorneys are planning to appeal. They argued the law that allowed Kenneth Miller to be tried in Vermont for a crime that neither occurred nor was planned in the state was likely to be overturned on appeal. Sessions, the judge, said the appeals process could take years.

"Constitutional Line Drawing at the Intersection of Childhood and Crime"

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

Three cases have arisen in the first seven years of the Roberts Court in which concepts of childhood have played a key role.  First came Graham v. Florida, a 2010 case in which the Court held that the Eighth Amendment's Cruel and Unusual Punishment's Clause prohibited sentencing of juveniles to life without parole for non-homicide offenses.  Next was J.D.B. v. North Carolina, a 2011 case in which the Court held that a juvenile's age is a relevant consideration when determining whether a reasonable person would believe he was in custody for Miranda purposes.  Finally, the Court decided Miller v. Alabama, a 2012 case in which the Court held that the mandatory imposition of life without parole in cases where juveniles were convicted of homicide was cruel and unusual punishment because it precluded consideration of age and its attendant consequences.

Though at first glance these three cases appear consistent -- they each result in some degree of enhanced constitutional protection for juveniles -- a closer look reveals significant jurisprudential tension because the opinions are riddled with contradictions. This Article explores those tensions and the need to resolve them, focusing in particular on two major line-drawing problems that have emerged in the juvenile cases. The first is inherent to but largely ignored in the cases: whether and where to draw the line between childhood and adulthood.  The second line is judicially manufactured: the line between homicide and non-homicide offenses.  The Article describes and critiques the Court's line drawing and offers proposed solutions to remedy flaws in the Court's reasoning.

Drug courts come to federal system (and New York Times' front page)

Regular readers know about the drug courts movement and its (varied but still very important) success as an alternative means to process certain drug offenders through the modern criminal justice system.  But, thanks to this big new front-page article in today's New York Times, which is headlined "Outside Box, Federal Judges Offer Addicts a Free Path," the notable new story of drug court development in the federal criminal justice system is due to get a lot more attention.  Here are extended passages from the Gray Lady's important coverage of this important federal sentencing story:

Federal judges around the country are teaming up with prosecutors to create special treatment programs for drug-addicted defendants who would otherwise face significant prison time, an effort intended to sidestep drug laws widely seen as inflexible and overly punitive.

The Justice Department has tentatively embraced the new approach, allowing United States attorneys to reduce or even dismiss charges in some drug cases.  The effort follows decades of success for “drug courts” at the state level, which legal experts have long cited as a less expensive and more effective alternative to prison for dealing with many low-level repeat offenders.

But it is striking that the model is spreading at the federal level, where judges have increasingly pushed back against rules that restrict their ability to make their own determination of appropriate sentences.  So far, federal judges have instituted programs in California, Connecticut, Illinois, New Hampshire, New York, South Carolina, Virginia and Washington.  About 400 defendants have been involved nationwide.

In Federal District Court in Brooklyn on Thursday, Judge John Gleeson issued an opinion praising the new approach as a way to address swelling prison costs and disproportionate sentences for drug trafficking.  “Presentence programs like ours and those in other districts mean that a growing number of courts are no longer reflexively sentencing federal defendants who do not belong in prison to the costly prison terms recommended by the sentencing guidelines,” Judge Gleeson wrote.

The opinion came a year after Judge Gleeson, with the federal agency known as Pretrial Services, started a program that made achieving sobriety an incentive for drug-addicted defendants to avoid prison.... 

The new approach is being prompted in part by the Obama administration, which previously supported legislation that scaled back sentences for crimes involving crack cocaine. The Justice Department has supported additional changes to the federal sentencing guidelines to permit the use of drug or mental health treatment as an alternative to incarceration for certain low-level offenders and changed its own policies to make those options more available.

“We recognize that imprisonment alone is not a complete strategy for reducing crime,” James M. Cole, the deputy attorney general, said in a statement.  “Drug courts, re-entry courts and other related programs along with enforcement are all part of the solution.”...

The development of drug courts may meet resistance from some Republicans in Congress. “It is important that courts give deference to Congressional authority over sentencing,” Representative F. James Sensenbrenner Jr., Republican of Wisconsin, a member and former chairman of the Judiciary Committee, said in a statement.  He said sentencing should not depend “on what judge happens to decide the case or what judicial circuit the defendant happens to be in.”

At the state level, pretrial drug courts have benefited from bipartisan support, with liberals supporting the programs as more focused on rehabilitation, and conservatives supporting them as a way to cut spending.  Under the model being used in state and federal courts, defendants must accept responsibility for their crimes and agree to receive drug treatment and other social services and attend regular meetings with judges who monitor their progress.  In return for successful participation, they receive a reduced sentence or no jail time at all.  If they fail, they are sent to prison....

In interviews, the federal judges who run the other programs pointed to a mix of reasons for their involvement. Judge Ricardo S. Martinez ran a state drug court in Seattle before he was appointed to the federal bench.  “People that have a serious addiction, you can put them in custody, but the minute you put them back in the community, they go back to the same thing and lo and behold you see them again,” Judge Martinez said in an interview.

Some of the most pointed criticism of the status quo has come from Judge Gleeson, a former federal prosecutor.  The drug court he helped set up is open to defendants who committed a range of nonviolent crimes, like fraud and selling prescription pills, and whose addictions fueled their actions.

In a 35-page opinion he issued this week, he criticized the Justice Department for charging defendants with drug offenses that carry mandatory minimum sentences, urged the Sentencing Commission to reduce the guideline range for many drug offenses and called for more programs that divert defendants from prison time.  The opinion chronicled the case of three graduates of the drug court....

Loretta E. Lynch, the United States attorney in Brooklyn, said she backed the program because drug courts elsewhere had lowered recidivism rates. “Our overall strategy of law enforcement and crime prevention isn’t just incarceration,” Ms. Lynch said.

At a sentencing hearing for Ms. Leitch last month, a prosecutor vacated her guilty plea and agreed to dismiss the charges if she did not use drugs or get arrested for 18 months. After the hearing, Judge Gleeson offered some encouraging words for the defendant, and then a hug. “I don’t know them as just the judge,” Ms. Leitch said later. “People see judges as the bad guy. They get deeper. They get to know who you are.”

Judge Gleeson's 35-page opinion in US v. Leitch et al, 11-CR-00609 (EDNY Feb. 28, 2013), not only merits NY Times front-oage coverage, but also a read in full. I have uploaded that opinion here.

Download Gleeson SOR in Nunez.Leitch

Some older and newer related posts about drug court programs and research:

• Talk of drug courts, but not major policy changes, in drug war from Obama team
• Important new NACDL report critical of modern drug court movement
• New report on drug courts from The Sentencing Project
• "Rethinking Drug Courts: Restorative Justice as a Response to Racial Injustice"
• NJ commission endorsing expanding drug courts
• A religious pitch for drug courts
• Terrific NIJ drug court report
• Reexamining drug courts
• Judge Lay advocating drug courts again
• A Mississippi pitch for drug courts and getting smarter on crime and punishment
• Resources on drug courts
• New JPI report expressing concerns about drug courts and net widening
• New research shows positive outcomes from drug court programs

"Should defendants’ age, health issues be sentencing factors?"

The question in the title of this post is the sub-heading of this notable article appearing in my own local Columbus Dispatch, which carries the main headline "Seniors argue for less time in prison." Here are excerpts:

Is prison more of a punishment if a defendant is 50 rather than 20? Some defense attorneys are debating that issue in federal court as they seek to minimize prison sentences for defendants 50 or older.

“We’re seeing it a lot,” Assistant U.S. Attorney Deborah A. Solove said. The issue is at the heart of an unprecedented second appeal that Solove has filed over the prison sentence imposed by U.S. District Judge James L. Graham on a Knox County man, Richard Bistline.

Graham originally sentenced Bistline, 70, of Mount Vernon, in 2010.  The sentence, for possessing child pornography, was one day in prison plus 10 years of supervised probation. Solove appealed, saying the sentence was too lenient.  The 6th U.S. Circuit Court of Appeals ordered Graham to resentence Bistline, saying the original penalty “does not reflect the seriousness of his offense.”

In January, Graham ordered the same sentence but added three years of home confinement as part of Bistline’s probation. The judge said he didn’t order more prison time because he was concerned about Bistline’s age and health problems, which included two strokes and a heart attack a year ago.  He questioned whether Bistline would get adequate medical care in prison.

Solove, who prosecuted the case, had asked for a five-year prison term, which was a bit less than is called for in the sentencing guidelines determined by the court. Graham maintained that would be “a life sentence, or more accurately, a death sentence,” for Bistline.

Graham said last week that judges can consider age and infirmity in sentencing, and he does that if a defendant is not a danger to the public. “I was completely satisfied in this case that he was not.  Your job as a judge is to figure out which one of these defendants are the really bad guys you need to put away.”

In another case, Laura E. Byrum, an assistant federal public defender, is arguing that her 64-year-old client should get a prison sentence that’s shorter than the guidelines call for, in part because of his age and health problems.   Robert W. Burke of 767 Bracken Court, Worthington, pleaded guilty to one count of receiving child pornography, and the guidelines call for a 20-year prison term.

Byrum has asked for a 10-year prison term followed by 20 years of supervised release. She argues that the life expectancy of a man Burke’s age is 18 years, and his is likely shorter because he has skin cancer and chronic obstructive pulmonary disease.  Twenty years is a “virtual death sentence,” she wrote in her sentencing memorandum.

Assistant U.S. Attorney Heather Hill said the federal prison system can handle most of the typical health problems associated with aging. “Going to prison isn’t easy for anyone, but that is the consequence of breaking the law,” she said. “We’re not sure that being nearer to the grave gives you license to be a criminal.”

According to a 2012 report by Human Rights Watch, state and federal prisons held 124,440 prisoners who were 55 or older in 2010.  That was a 282 percent increase from 1995, at a time when the total number of prisoners rose by 42 percent.

Prior related posts:

• Sixth Circuit finds substantively unreasonable a one-day of lock-up for child porn downloading
• District Judge at resentencing continues to resist federal child porn guidelines even after Sixth Circuit reversal

Obama grants 17 pardons ... could this signal a new (second term) approach to clemency?

As reported in this Washington Post article, headlined "Obama grants pardons to 17 people for nonviolent offenses," President Obama late yesterday rediscovered his clemency powers. Here are the basics:

President Obama pardoned 17 people for nonviolent offenses Friday, a rare move that nearly doubled the number of pardons he has granted since taking office just over four years ago.  The individuals came from 13 states and were sentenced years if not decades ago for such minor federal offenses as falsely altering a U.S. money order, possessing an unregistered firearm, embezzling bank funds and acquiring food stamps without authorization....

The pardons, the first of Obama’s second term, are significant because this president so infrequently grants clemency.

Before Friday, Obama had granted 22 pardons; he had received petitions from 1,333 individuals, according to the data maintained by the Department of Justice’s Office of the Pardon Attorney. He granted his first batch of pardons, totaling nine, in December 2010, and granted eight in May 2011 and five in November 2011.

By contrast, former president George W. Bush received 2,498 petitions and granted 189 pardons, while former president Bill Clinton received 2,001 petitions and granted 396 pardons, according to the data.

Dafna Linzer of ProPublica, a nonprofit investigative news organization, reported last year that Obama has granted clemency at a lower rate than any modern president. Among the hundreds of people who have been denied pardons by Obama, Linzer reported, are a former brothel manager who helped the FBI bust a national prostitution ring and a retired sheriff who inadvertently helped a money launderer buy land.

Obama has come under criticism for not using more frequently his constitutional powers to pardon people for federal crimes. Some academics argue that the president could have more impact by pardoning younger people with more recent crimes.

“He’s not only being extremely stingy, but he’s giving pardons to people who arguably need them the very least,” said P.S. Ruckman Jr., a political scientist at Rock Valley College in Illinois who blogs about presidential pardons. “The people who need pardons are people in their 30s and 40s and 50s who are trying to get jobs and raise families.”

Jeffrey Crouch, a political science professor at American University, said the pardons announced Friday mirror those Obama granted in his first term. “The president’s pattern has been pretty much to go for the safe route — look for older offenses, nonviolent offenses — and using the pardon power in some cases just enough to not be criticized for not using it at all,” said Crouch, author of “The Presidential Pardon Power.”

The White House on Friday offered no information about why Obama selected these 17 individuals for pardons other than that he believes they will lead productive lives. “As he has in past years, the president granted these individuals clemency because they have demonstrated genuine remorse and a strong commitment to being law-abiding, productive citizens and active members of their communities,” White House spokesman Matt Lehrich said.

Of course, the Pardon Power the place to go for all the pardon news and analysis via P.S. Ruckman, and this new post provides some more context for these latest grants:

Today, President Obama granted 17 pardons, the largest batch of pardons granted in his presidency.  This brings his pardon total to 39 (22 in the first term and 17 in the second). He has also granted a single commutation of sentence (first term).  According to the Office of the Pardon Attorney, Obama has received at least 8,000 clemency applications to date.

Recall, President Obama waited a whopping 682 days before  granting the first pardon of his first term -- the longest delay for any president in American history, save George W. Bush. For Obama's second term, the wait has been a mere 39 days!

Regular readers know I have been very critical of President Obama for his failure to make any significant use of his clemency powers. Consequently, I am pleased to see any Presidential action on this front. But, as the title of this post suggests, what really matters is whether these initial pardons might be a sign of a lot more clemency action to come in months and years ahead.

Some recent and a few older posts concerning federal clemency practices:

• Will Prez Obama's clemency record ever match his inaugural rhetoric?
• "Why Has Obama Pardoned So Few Prisoners?"
• "Barack the Unmerciful: Obama's amazingly stingy clemency record"
• New York Times editorial assails Prez Obama's considerable clemency failings
• "Obama Has Granted Clemency More Rarely Than Any Modern President"
• Updated numbers on President Obama's disgraceful clemency record
• Noting President Obama's (still) stingy clemency record
• ProPublica reveals more ugliness in federal clemency process
• "Obama's Mercy Dearth"
• Los Angeles Times calls out our "no-pardon president"
• "A no-pardon Justice Department"
• Effective USA Today coverage of President Obama's clemency stinginess
• "Obama should exercise the pardon power"
• NYTimes op-ed assailing Obama's pathetic pardon practices

Jacksons plead guilty and federal prosecutors recommend significant prison terms for both

This recent post, titled "You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?", engendered a lengthy debate over federal sentencing law and practice as applied to a pair of new high-profile federal defendants.  Now, this New York Times article, headlined "Jesse Jackson Jr. Pleads Guilty: ‘I Lived Off My Campaign’," reports that federal prosecutor, apparently parroting the recommendations of the federal sentencing guidelines, have already urged significant prison terms for Jesse and Sandi Jackson.  Here are the details:

Jesse L. Jackson Jr., the former Democratic representative from Illinois, pleaded guilty on Wednesday to one felony fraud count in connection with his use of $750,000 in campaign money to pay for living expenses and buy items like stuffed animals, elk heads and fur capes.

As part of a plea agreement, prosecutors recommended that Mr. Jackson receive a sentence of 46 to 57 months in prison. The federal judge overseeing the case, Robert L. Wilkins, is scheduled to sentence Mr. Jackson on June 28....

“Guilty, Your Honor — I misled the American people,” Mr. Jackson said when asked whether he would accept the plea deal. Mr. Jackson’s father, the Rev. Jesse L. Jackson, his mother and several brothers and sisters accompanied him to the hearing.

Mr. Jackson’s wife, Sandi, also accompanied him, and later in the day she pleaded guilty to a charge that she filed false income tax statements during the time that Mr. Jackson was dipping into his campaign treasury. Prosecutors said they would seek to have her sentenced to 18 to 24 months....

Last summer, Mr. Jackson took a medical leave from Congress and was later treated for bipolar disorder. After winning re-election in November, he resigned, citing his health and the federal investigation into his use of campaign money.

After the hearing, Mr. Jackson’s lawyer, Reid H. Weingarten, said his client had “come to terms with his misconduct.” Mr. Weingarten said that Mr. Jackson had serious health issues that “directly related” to his conduct. “That’s not an excuse, it’s just a fact,” Mr. Weingarten said.

Court papers released by federal prosecutors on Wednesday provided new details about how Mr. Jackson and his wife used the $750,000 in campaign money to finance their lavish lifestyle.

From 2007 to 2011, Mr. Jackson bought $10,977.74 worth of televisions, DVD players and DVDs at Best Buy, according to the documents. In 2008, Mr. Jackson used the money for things like a $466.30 dinner at CityZen in the Mandarin Oriental in Washington and a $5,587.75 vacation at the Martha’s Vineyard Holistic Retreat, the document said.

On at least two instances, Mr. Jackson and his wife used campaign money at Build-A-Bear Workshop, a store where patrons can create stuffed animals.  From December 2007 through December 2008, the Jacksons spent $313.89 on “stuffed animals and accessories for stuffed animals” from Build-A-Bear, according to the documents....

Documents released on Friday showed how Mr. Jackson used his campaign money to buy items like fur capes, celebrity memorabilia and expensive furniture.   Among those items were a $5,000 football signed by American presidents and two hats that once belonged to Michael Jackson, including a $4,600 fedora.

Because neither Jesse Jr. nor Sandi Jackson would appear to present any threat to public safety whatsoever, I am not quite sure why federal prosecutors believe that imposing a sentence "sufficient but not greater than necessary" to achieve congressional sentencing purposes requires a muti-year prison term for both of them.  I fully understand, of course, that the sentences here ought to be severe enough to serve general deterrence purposes.  But I am not sure that such extended prison terms are needed, especially if the Jacksons' sentences require them now to pay significant criminal fines and penalities in addition to forfeiting all ill-gotten gains and paying all their tax liabilities.

Former federal prosecutor Bill Otis has said repeatedly in recent threads that federal prosecutors should not have their sentencing recommendations defined by applicable sentencing guidelines.  But I surmise that the prosecutors' recommendations here that Jesse Jr. get 46 to 57 months in prison and that Sandi get 18 to 24 months are drawn directly from the guidelines.  (We can be quite sure that the defense attorneys in these cases will not draw their recommendations from the guidelines, and I would guess that the defense will end up making full-throated arguments for non-prison sentences for both Jesse Jr. and Sandi.)

Recent related post:

• You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?

Judicious judicial views from US District Judge Polster when handing down Amish beard-cutting sentences

As regular readers know, the recent federal sentencing proceedings surrounding Amish defendants convicted for hate crimes generated considerable debate and commentary in this space.  I was pleased to learn that, among those following some of the blog discussion, was ND Ohio US Attorney Steven Dettelbach. I know this because USA Dettelbach late last week forwarded me a copy of parts of the sentencing transcript from the proceedings before US District Judge Dan Polster for posting.  USA Dettelbach also sent along these comments in response to this earlier guest-post about the sentencing (which I have modified slightly for clarity while preserving the substance and which I have received permission to post along with the sentencing transcript):

"The guest post failed to include any mention whatsoever of the comments that the sentencing Judge made.  It is possible that the guest columnist missed that portion of the sentencing, but some mention or discussion of the sentencing Judge's reasons and rulings would have been important in any fair analysis -- much less a critique -- of a sentence handed down by that Judge. Indeed, such comments might also be pertinent in fairly analyzing the actions of the government in a case before that Judge as well.  In fact, the exercise of such discretion, and the reasons provided, would be particularly pertinent to those who espouse the opinion that judges should be afforded discretion in sentencing cases that they hear as neutrals."

Download Amish sentencing transcript EXCERPT

Related prior posts:

• Ohio Amish hair-cutting incidents now a federal hate crimes sentencing matter
• Stark extremes for forthcoming debate over federal sentencing of Amish beard-cutters
• Interesting defense arguments for sentencing leniency in Amish beard-cutting case
• Feds request LWOP for Samuel Mullet Sr., leader of Amish beard-cutting gang
• Are tough sentences sought in Amish beard-cutting case part of a DOJ "war on religion"?
• "Amish beard-cutting ringleader gets 15 years"
• Guest post on Amish sentencing: "A Travesty in Cleveland":

Is Georgia likely to carry out tonight's scheduled execution of Warren Lee Hill, who is likely mentally retarded?

I have not blogged much about the possible execution of Warren Lee Hill, which is scheduled to be killed by the state of Georgia later tonight.  Given the considerable evidence that Hill is likely mentally retarded and that his lawyers now have more doctors prepared to testify to this fact, I had thought there was a real good chance that a federal court would step in and now reconsider Hill's claims that he is not constitutionally eligible for execution under the Supreme Court's 2002 Atkins ruling.

However, as detailed via this lengthy Atlanta Journal-Constitution article and this new New York Times posting reveals, we are now just hours away from Hill's execution hour and all systems in Georgia seem a go for this punishment.  The NY Times piece provides this update of the latest case developments:

Warren Lee Hill, an intellectually disabled inmate with an I.Q. of 70, is scheduled for execution today in Georgia at 7 p.m.

In 2002, the Supreme Court banned capital punishment for the intellectually disabled. But, alone among the states, Georgia requires a defendant to prove such a disability beyond a reasonable doubt — a heavy a burden of proof because it is so easy for a state to cast doubt on evidence concerning mental capacity.

Last Thursday, Mr. Hill’s lawyers announced what should be crucial news in the case. The three experts for the state who said in 2000 that Mr. Hill did not meet the criteria for intellectual disability have reversed their views....

These reversals of opinion are “the equivalent of an exoneration,” as Mr. Hill’s lawyers have explained: experts for Mr. Hill and for the state now agree that he is intellectually disabled beyond a reasonable doubt.

Last Friday, the lawyers asked the Georgia clemency board to review his case and presented the new evidence to a state trial judge in Georgia, in a plea for a stay of execution.  On Monday, when the state trial judge dismissed the plea, the lawyers immediately appealed to the Georgia Supreme Court.

I have long thought it problematic that the US Supreme Court has been willing, for now more than a decade since its Atkins Eighth Amendment ruling, to let each individual jurisdiction make up its own distinctive procedures for implementing Atkins.  And I have long believed that SCOTUS would have to take up this issue if and when a particular defendant appears headed to execution despite strong evidence of mental retardation.  Thus, I continue to think SCOTUS will jump in at the last minute if the Georgia clemency board and the Georgia Supreme Court both deny Hill any relief or any stay this afternoon. But time is now sure running short for Hill and his lawyers.

UPDATE: Just after hitting publish on this post, I saw this new development via the local papers:

The Georgia Supreme Court has voted 5-2 to deny Warren Hill a stay of execution.

Chief Justice Carol Hunstein and Justice Robert Benham dissented from the state Supreme Court’s decision to deny Hill a stay of execution.

Hill’s attorneys have yet to hear from the State Board of Pardons and Paroles on Hill’s most recent plea for clemency.  Hill also is asking the U.S. Supreme Court to stay his execution.

Grey Lady has lots of sentencing stories fit to print today

Seemingly just conincidentally, the New York Times has these three notable sentencing-related pieces in its print edition today.  Here are the headlines and the start of the stories in the order they appear in the paper:

• On the editorial page here, "Unjust Mandatory Minimums":

  Attorney General Eric Holder Jr. recently said that his top priority is to improve the criminal justice system. He can start by pushing Congress and the United States Sentencing Commission to fix the unfair problem of excessive mandatory minimum sentences.

• On the B section coverpage here, "Prosecutors, Shifting Strategy, Build New Wall Street Cases":

  Criticized for letting Wall Street off the hook after the financial crisis, the Justice Department is building a new model for prosecuting big banks. In a recent round of actions that shook the financial industry, the government pushed for guilty pleas, rather than just the usual fines and reforms. Prosecutors now aim to apply the approach broadly to financial fraud cases, according to officials involved in the investigations.

• On the D section coverpage here, "Prison and the Poverty Trap":

  Why are so many American families trapped in poverty?  Of all the explanations offered by Washington’s politicians and economists, one seems particularly obvious in the low-income neighborhoods near the Capitol: because there are so many parents like Carl Harris and Charlene Hamilton.

  For most of their daughters’ childhood, Mr. Harris didn’t come close to making the minimum wage.  His most lucrative job, as a crack dealer, ended at the age of 24, when he left Washington to serve two decades in prison, leaving his wife to raise their two young girls while trying to hold their long-distance marriage together.

You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?

Regular readers know that, often on the eve of a high-profile or unique sentencing proceeding, I urge folks to imagine being the judge and to propose a just and effective sentence for the defendant.  (See, e.g., prior "you be the judge" posts involving a rouge federal judge, a Ponzi schemer, the "Spam King", and an NBA star.)   Today, however, as the title of this post highlights, I am changing the script after being inspired by this Chicago Tribune article about a latest very high-profile federal political corrpution case.  the article is headlined "Lawyers: Jackson Jr., wife intend to plead guilty to charges," and here are the (not so simple) basics:

Jesse Jackson Jr. and his wife Sandi intend to plead guilty to federal charges alleging the former congressman misused $750,000 in campaign funds while she understated their income on tax returns for six years, their lawyers say.

Jackson Jr., 47, a Democrat from Chicago, was charged in a criminal information Friday with one count of conspiracy to commit wire fraud, mail fraud and false statements.  He faces up to five years in prison, a fine of up to $250,000 and other penalties.

Sandi Jackson was charged with one count of filing false tax returns.  She faces up to three years in prison, a fine of up to $250,000 and other penalties.

Jackson Jr. is accused of diverting $750,000 in campaign funds for personal use.  Federal authorities allege that Jackson Jr. used campaign funds to purchase a $43,350 men’s gold-plated Rolex watch, $5,150 worth of fur capes and parkas, and $9,588 in children’s furniture.  The purchases were made between 2007 and 2009, according to the criminal information, which authorities noted is not evidence of guilt....

The government also alleged that Jackson Jr. made false statements to the House of Representatives because he did not report approximately $28,500 in loans and gifts he received.  "He has accepted responsibility for his actions and I can confirm that he intends to plead guilty to the charge in the information," Jackson Jr.'s attorney Brian Heberlig said.

Sandi Jackson is accused of filing incorrect joint tax returns with her husband for calendar years 2006 through 2011, reporting income “substantially less than the amount of income she and her husband received in each of the calendar years,” with a substantial additional tax due. Her attorneys released a statement saying she has "reached an agreement with the U.S. attorney’s office to plead guilty to one count of tax fraud."

Jackson Jr. stepped down from the House of Representatives on Nov. 21, citing both his poor health and an ongoing federal probe of his activities.  In a statement then, he said he was doing his best to cooperate with federal investigators and to accept responsibility for his “mistakes.”...

Sandi Jackson's attorneys released a statement saying she "has accepted responsibility for her conduct, is deeply sorry for her actions, and looks forward to putting this matter behind her and her family.  She is thankful for the support of her family and friends during this very difficult time."...

The Rev. Jesse Jackson said he would "leave it up to the courts system" to determine his son's fate. "We express our love for him as a family," he said....

Last June, Jackson Jr. began a mysterious leave of absence for what originally was called “exhaustion” but later emerged as bipolar disorder. He spent months in treatment and won re-election Nov. 6 despite never returning to service in the House or staging a single campaign appearance....

Jackson Jr. was first elected to Congress in 1995. Sandi Jackson was a Chicago alderman until she resigned her post last month. They have two children.

Federal sentencing fans know well that the willingness of the Jacksons to accept responsibility and plead guilty should help them considerably when a federal judge is tasked with imposing a sentence on the alleged federal charges.  Indeed, I have to assume that this willingness to plead guilty is a reason that the initial charges in this case appear to limit Jesse's maximum prison sentence to only five years and Sandi's maximum sentence to only three years.

But, regular readers should recall from recent discussions over the high-profile Amish beard-cutting federal case, federal prosecutors not only need to decide what criminal charges to file, but they also need to decide what sentence should be recommended after convictions are secured.  Ergo the question for readers in the title of this post: assuming the Jacksons both plead guilty and show deep and genuine remose for their wrong-doing, what sentence do you think federal prosecutors should seek for Jessie Jr. and Sandi?  

P.S.  Depite the US Sentencing Commission's website still being down (grrr....), I was able to do a quick guidelines guestimate that Jesse Jr. would be facing, at the very least, three or more years in federal prison as a recommended guideline range (principally because the "loss" amounts alleged here are pretty high).  But, of course, as Bill Otis was quick to remind us in the Amish beard-cutting conversation, federal prosecutors need not (and arguably should not) utilize the guidelines range as a starting metric for any prosecutorial sentencing recommendations.

UPDATE:  I have added a picture of the Jackson family to this post in part because I had been wondering about the ages of their two children.  Though the picture reprinted here may be a bit dated, I have confirmed (via this Wikipedia entry) that the kids are still pretty young — ages 12 and 9 as of this writing — which means they would likely be harmed greatly if both their parents are sent to prison at the same time.  Ergo, if any would-be federal prosecutors are inclined to recommend prison sentences for both Jessie Jr. and Sandi, I wonder if you would oppose a likely request from the defense to stagger any prison terms so that the Jackson children can always have at least one parent on the outside.

Lengthy discussion of Miller in Michigan through lens of one female murderer

This lengthy new AP article, headlined "Sentenced to life at 16, woman hopes for freedom," provides a details account of the implications and application of the Supreme Court's Miller ruling in Michigan (and elsewhere). As the headline suggests, the bulk of the piece is focused on one female offender, but these excerpts highlight some broader part of the story:

There are more than 2,000 Barbara Hernandezes in this country -- men and women sentenced to live and die in prison for murders committed when they were teens.  Last June, the U.S. Supreme Court delivered a long-awaited ruling, wrestling with questions that have confounded the justice system for years: Should teens convicted of the most brutal crimes be punished just like adults? Or should their youth matter?

The ruling was dense with legal references and focuses on faraway cases. But in its 64 pages, the court offered new hope to inmates in 28 states.  "Imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children," Justice Elena Kagan wrote for the court's majority.

Despite the justices' strong words, they declined to settle the many complex questions inherent in resolving these cases. Instead, they left it to people in statehouses and courthouses, in living rooms and law offices and prison cells.  In Michigan and many other states, the challenge now is to decide whether, and how, this new standard of fairness is supposed to confront the stern justice of the past.

That won't be easy. In the closing hours of Hernandez's trial, the prosecutor urged jurors to focus solely on her role in killing James Cotaling, a 28-year-old auto mechanic who, on a Saturday night in May 1990, told his fiancee he was going out to buy a Mother's Day card at Kmart, but never came home. "This would be the type of case where it would be easy to feel sorry for Barbara Hernandez, but you all promised me at jury selection that sympathy would play no role in your deliberations," said the prosecutor, Donna Pendergast. "You can't look at who this defendant is. You have to look at what she did."

Now, more than two decades later, the Supreme Court says that is not enough. But to comply with the court's words will take more than just a change in legal process.  It could well force the system to revisit the distant past and appraise its meaning, to again confront the details of terrible crimes and to take measure of childhoods left behind long, long ago....

More than two decades later, the Supreme Court says juvenile defendants' lives must be weighed when they are sentenced. Critics and supporters of the ruling agree it will change sentencing of juveniles in the future. But what should judges do with those already serving life? If the new ruling applies to them, too, what should happen next?

Lawyers for prisoners want resentencing hearings to consider factors set out by the court, including lack of maturity at the time of the crime, family background, vulnerability to negative influences and the role the teen played in the killing.  But officials in state after state have taken widely varying paths to resolution.

California Gov. Jerry Brown signed a bill allowing judges to reduce sentences to 25 years to life if an inmate shows remorse and is working toward rehabilitation.  In Iowa, Gov. Terry Branstad commuted all juvenile life sentences to 60 years, a decision widely seen as flouting the Supreme Court's directive.  Pennsylvania lawmakers set minimum sentences of 25 years for defendants 14 or younger convicted of first-degree murder, while those 15 to 17 would have to serve at least 35 years.

In Michigan, the issue is being hashed out on three fronts. In the legislature, state Rep. Joe Haveman introduced bills late last year allowing for possible parole of juvenile lifers after 15 or 20 years, depending on their age at the time of the crime.  But Michigan's parole board has a reputation for releasing very few lifers and Haveman said he's not sure how to address that. He chose not to pursue passage and is meeting with a group, including prosecutors and defenders, to propose new bills for this year.   "I think the public is ready to look at alternative thinking and alternative sentences, than to just say let's throw people in prison and not think about them again," Haveman said.

A federal judge ruled in January that Michigan laws mandating life sentences for teens convicted of first-degree murder are unconstitutional.  But state Attorney General Bill Schuette contends the ruling applies only to five inmates who brought the case. Without a new law, the issue has also landed in state courts.

When a bailiff calls the Michigan Court of Appeals to order on a Tuesday morning in mid-October, so many people rise from the often empty gallery, Presiding Judge Michael J. Talbot's eyebrows dart up in surprise.  Technically, today's only case is that of Raymond Curtis Carp, 22, convicted with his older half-brother of a 2006 armed robbery that led to the killing of a St. Clair County woman. Carp was 15; his lawyer is contesting Carp's life sentence, citing the Supreme Court's Miller ruling.

But the courtroom is full because all acknowledge Carp is a proxy for more than 360 other Michigan inmates sentenced to life as teens.  After nearly four hours of arguments, the judges sound stumped. "I can't ignore the fact that there's a crisis pending that requires action," Talbot, the judge, says.  "What are we going to tell them (inmates), that we'll see you in a year or two and maybe something will happen?"

When he adjourns, the room buzzes with talk about what the court will do.  A month later, Talbot's panel ruled that the Supreme Court decision does not apply retroactively and rejected Carp's request; the state Supreme Court is expected to weigh an appeal later this year.

"Whether it be the state court or the federal court or the legislature ... the clear injustice of someone being held under a cruel and unusual sentence won't continue in the state," said Deborah LaBelle, an Ann Arbor attorney leading challenges to Michigan's juvenile sentencing laws. "I think it's too bad we're not there. But I'm still hopeful."