Tuesday, April 05, 2011

"Felony to misdemeanor: How Jack Camp did it"

The title of this post is the headline of this lengthy article from the Daily Report, which carries the subheading "DOJ may have been 'outlawyered' as plea deal fell apart for gun-toting former jurist caught in cocaine deal." Here is how the piece starts:

Prosecutors who missed charging opportunities, a loosely crafted plea agreement and defense lawyers who excavated a little-known Michigan case that turned on the difference between "a" and "the" allowed former federal Judge Jack T. Camp Jr. to walk away with a misdemeanor last month even though he pleaded to a felony after the FBI snared him in a cocaine deal.

Camp's sentence, which the government said it will not appeal, amounts to a new legal precedent in Georgia affecting whether a felon's prior convictions may be used to enhance criminal charges against anyone helping that felon commit a crime.  The Michigan opinion and prosecutors who may have been wary of relitigating a decade of Camp's cases would prove critical in the surprising outcome.

Camp could have served four years in prison under his original plea deal, which included a felony and was made with prosecutors from the Department of Justice in Washington after local prosecutors and judges recused. Instead, U.S. District Senior Judge Thomas F. Hogan from Washington, sitting as a visiting judge in Atlanta, reduced the 67-year-old Camp's felony plea to a misdemeanor, then gave him a 30-day sentence plus a good scolding for criminal behavior that combined cocaine, narcotic painkillers, a prostitute drug felon, a stolen government laptop, and loaded guns he brought to a drug deal.  Camp also will serve 10 weeks of community service, pay a $1,000 fine, and reimburse more than $13,000 to the government for the cost of his prosecution.  As part of his plea, Camp also resigned his judicial post and surrendered his law license.  He will begin serving his sentence on April 15 at a minimum-security federal prison camp in El Reno, Okla.

For Camp, the biggest relief likely was avoiding more prison time and the stigma of a felony conviction.  As a misdemeanor offender, he will not be stripped of his civil rights —including the right to vote and carry a firearm (once his probation is complete) — and could even apply for reinstatement to the State Bar.

Criminal defense lawyers who have followed the case were stunned.  Arthur W. Leach, a former federal prosecutor in Alpharetta who now does defense work, called the conversion of Camp's pleaded felony to a misdemeanor "absolutely amazing."  The downgraded plea, he said, creates "the perception that because [Camp] was a district court judge, he was treated differently."

"The consensus among criminal defense attorneys in this district is please bring in a prosecutor from Washington whenever we have a case," said Atlanta criminal defense attorney Steven H. Sadow.  The government was "outlawyered," defense attorney Wilmer "Buddy" Parker, another former federal prosecutor in Atlanta, concluded.

Related prior posts (which have generated lots of notable comments):

April 5, 2011 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, April 04, 2011

Seniors looking at functional life prison terms for selling prescriptions

Because I always find the intersection of age and aging issue and sentencing considerations to be interesting and dynamic, this lengthy local article from Oklahoma caught my eye.  The piece is headlined "Seniors might die in prison: Two elderly Oklahomans are facing the possibility of spending the remainder of their lives in prison. They’re accused crimes? Selling their prescriptions."  Here is how the piece gets started:

Old age doesn’t preclude a person from committing a crime, and in the cases of two elderly Oklahomans, it also doesn’t rule them out from possibly spending the remainder of their lives in prison on drug complaints.

Opal Verndean Wesley, 73, of Bristow, was charged Friday in Creek County on complaints of possessing controlled prescription drugs with intent to distribute and for having a firearm after prior felony convictions.  If convicted, she faces six years to life in prison. She was booked into the Creek County jail Friday.

Nearly 200 miles south in Love County, Louis Harold Norton, 70, of Marietta, accepted a plea deal on March 24 for 30 years in prison with 15 suspended.  The plea stemmed from two 2009 felony charges of distributing painkillers.  He is currently in the Department of Corrections custody.

They don’t know each other, but officials say it’s eye-opening and troubling that senior citizens are selling their legally obtained prescriptions.  Though these are rare cases, these two could spend their twilight years behind bars.

Oklahoma Department of Corrections records show about 9 percent of the nearly 26,000 incarcerated are older than 51 years old.  Nearly 30 percent of the prison population is serving time for drug crimes. 

“We can’t just say this guy is old so we’re not going to prosecute,” said Love County Assistant District Attorney Paule’ Wise.  The prosecutor in Wesley’s case, Creek County Assistant District Attorney Mike Loeffler, echoed the same sentiment: “It’s hard to be blind to age, but selling these drugs is for no other purpose than economic gain.”

Oklahoma Bureau of Narcotics and Dangerous Drugs Control spokesman Mark Woodward said the argument is sometimes made that selling prescriptions becomes the only way for the elderly to supplement Social Security benefits and make money.  “More people die from these drugs than street drugs,” he said.  “Age has nothing to do with greed and that’s what this is.”

I believe very strongly that being old or even infirm should not preclude prosecution for crimes, and I do not know anyone who seriously contends that old age should be a complete defense to criminal conduct.  But this reality just heightens the pressure and challenge of sentencing older offenders who, when convicted of non-violent crimes, seem quite unlikely to pose a significant threat to the public and who also may suffer more (and cost more) when incarcerated during their twilight years.

April 4, 2011 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Sunday, April 03, 2011

Detroit's Granny Valjean gets probation and home confinement for Social Security fraud

Last week I asked in this post what would seem a fitting federal sentence for an elderly woman who fraudulently received nearly $120,000 in Social Security benefits over a 20-years period and used the funds to raise and support her grandkids.  Here is the news report on her actual sentencing:

In the end, the judge showed her mercy.  Mary Alice Austin, a Detroit grandmother who admitted she stole from the government because she needed money to help raise her five grandchildren, avoided a prison sentence Friday when a federal judge gave her probation instead.  But Austin will have to pay back $119,000 in restitution and will serve four months in home confinement on a tether.

U.S. District Judge Victoria Roberts issued the sentence after Austin, 67, pleaded for her freedom.  She faced 10-16 months in prison for unlawfully receiving her son's disability checks while he was in prison.  "Please understand me. Please," a frail-looking Austin said at her sentencing.

Austin told the judge she still has a mentally ill son in an institution to look after.  She also talked about the struggles she faced in raising five grandchildren and said desperate times forced her to make a bad choice.  "I am remorseful," Austin said.  "I got scared.  I got very scared."

According to court records, Austin paid someone to pose as her mentally ill son so she could continue receiving his disability benefits while he was in prison.  From 1990 to 2009, Austin received nearly $120,000 in benefits -- about $6,000 a year, records show....

At Austin's sentencing, Assistant U.S. Attorney Blondell Morey conceded Austin doesn't present a threat to the public but pushed for prison time.  "I think basically Ms. Austin is a good woman, but she did some bad things. ... And she needs to be punished."

April 3, 2011 in Booker in district courts, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (8) | TrackBack

Notable coverage of the fates of teen lifers in Colorado and Florida

Today's newspapers include these two stories from two different parts of the country concerning the fates of defendants sentences to life for crimes committed a teenagers:

From the Orlando Sentinel here, "'Lifers' sentenced as teens: Do they deserve a 2nd chance?"

From the Pueblo Chieftain here, "Juvenile 'lifers' afraid to hope"

April 3, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (9) | TrackBack

Friday, April 01, 2011

Another extraordinary sentencing opinion from Judge Jack Weinstein in multi-defendant crack case

A number of helpful readers have made sure that I did not miss yet another extraordinary sentencing opinion from the desk of US District Judge Jack Weinstein. The opinion in United States v. Bannister, No. 10-CR-0053 (E.D.N.Y. Mar. 24, 2011) (available for download below), runs over 125 pages and here are excerpts from the conclusion (with cites omitted):

Several of the sentences in this case, imposed only because of statutory minima, are disproportionate to the crimes committed and the backgrounds of the defendants.  Their excess causes particular concern when applied to youthful defendants.  That concern is multiplied by their imposition upon young defendants subject to abuse, poverty, drug and alcohol addiction, unemployment, illiteracy, and learning disability, largely attributable to their backgrounds.

Had the defendants been raised by cohesive, adequate families, most of the difficulties they encountered would probably never have come to pass.  Well-resourced, attentive parents would have had the knowledge, ability, and insight to protect their children from many of the difficulties that befell these defendants in their youth, to obtain assistance to deal with their psychological and physical problems, and to obtain crucial opportunities for education, work, and personal growth.  Even those with learning disabilities would likely have been provided available resources to overcome their impairments at public expense. That the defendants were born into circumstances without such support is at the center of this tragedy.

As part of defendants‘ sentences, it has been ordered that every reasonable effort be made to provide counseling, drug and alcohol treatment, gambling rehabilitation, anger management therapy, education, and job training while defendants are incarcerated and during supervised release.

Considering the limited resources devoted to such rehabilitative measures, however, it is by no means clear that these aids will be effectively provided.  When the defendants are released from prison, they will probably have to return to all of the problems that led them to engage in crime.  Whatever tenuous connection they retain to the lawful, supportive world will likely be diminished after years of forced separation in prison.  Incarceration will make entry into the job market more difficult.  Remaining will be the root problems that have largely brought them to this pass: poverty; dysfunctional families; mental and physical problems; legal and de facto housing segregation; segregated and inferior schools; and an economy that appears to have little need or concern for low- and semi-skilled workers.  Such individuals constitute a permanent underclass with almost no opportunity to achieve economic stability, let alone the American dream of upward mobility.

These problems are concentrated among low-income African Americans, but they affect the country as a whole.  Our rates of imprisonment, income inequality, and unemployment are either the highest or among the highest of the world's advanced economies, while our rates of food security and life expectancy are among the lowest.

Significant reforms are needed in our sentencing regime.  The Fairness in Sentencing Act of 2010 reduced the dubious 100:1 powder/crack ratio to a 17.8:1 ratio.  It did nothing to remove the sentencing regime's dependence on arbitrary drug quantities — not just with regard to crack cocaine but other drugs as well — that bear little relationship to the harm a defendant has done to society or to the danger of his inflicting further harm.  Harsh, disproportionate mandatory sentences impose grave costs not only on the punished but on the moral credibility upon which our system of criminal justice depends.

Judges approach the grave responsibility of sentencing criminals with all the thoughtfulness and limited insight that their knowledge and wisdom can muster.... Mandatory minimum sentencing provisions, leaving no alternative but lengthy incarceration, prevent the exercise of this fundamental judicial duty.  Such laws are ― overly blunt instruments, bringing undue focus upon factors (such as drug quantities) to the exclusion of other important considerations, including role in the offense, use of guns and violence, criminal history, risk of recidivism, and many personal characteristics of an individual defendant.  It is difficult to conceive of a system of mandatory minimum sentences that could effectively anticipate and provide for such factors.

For nonviolent, low-level drug crimes, the goals of incarceration — general and specific deterrence, incapacitation, retribution, and rehabilitation — could in most cases be achieved with limited incarceration, through a system of intense supervised release utilizing home visits; meetings with parole officers; a combination of counseling, drug and alcohol treatment, education, job training, and job placement; and electronic monitoring to prevent flight, promote positive choices, and deter and detect incipient crime. Such a regime would likely be more effective in reducing crime and much less costly than imprisonment.  Given discouraging economic, social, and psychological conditions, it seems doubtful that the long sentences of incarceration imposed will appreciably reduce crime.

Pragmatism and a sense of fairness suggest reconsideration of our overreliance on incarceration. Though defendants are hemmed in by circumstances, the law must believe that free will offers an escape.  Otherwise, its vaunted belief in redemption and deterrence — both specific and general — is a euphemism for cruelty.  These defendants are not merely criminals, but human beings and fellow American citizens, deserving of an opportunity for rehabilitation.  Even now, they are capable of useful lives, lived lawfully.

Download U.S._v._Bannister_Statement_of_Reasons_FINAL

April 1, 2011 in Booker in district courts, Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (18) | TrackBack

Wednesday, March 30, 2011

Tenth Circuit rejects interesting attack on BOP policy concerning RDAP early release

The Tenth Circuit has an interesting opinion today in Licon v. Ledesma, No. 10-6166 (10th Cir. March 30, 2011) (available here), on a federal prison topic that (too?) rarely gets litigated.  Here is how the opinion starts: 

Ortino Licon challenges a Bureau of Prisons (BOP) policy and regulation that denies him eligibility for an early release program because he was convicted of felon in possession charges.  The BOP has authority to reduce a nonviolent offender’s term of imprisonment upon successful completion of a drug rehabilitation program.  The challenged BOP policy categorically denies prisoners convicted of felon in possession charges eligibility for the early release benefit.  Licon contends the policy arbitrarily categorizes every inmate convicted of firearm possession charges as violent offenders.  We conclude the BOP’s policy is not arbitrary, and therefore the BOP acted within its discretion by excluding inmates convicted of felon in possession charges.

March 30, 2011 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, March 29, 2011

You make the call: what sentence should Detroit's Granny Valjean get for Social Security fraud?

Here is a fitting challenge not only for all sentencing practitioners, but for anyone else who likes to imagine wearing a black robe and dispensing sentencing justice.  This Friday in Detroit, as detailed in this local article, a notable and sad federal prosecution reaches sentencing: 

Her mentally ill son was in prison.  Her daughter was battling drug addiction.  And her five grandchildren were in danger of being sent to foster care.  So Mary Alice Austin of Detroit, who said she needed money to raise the grandkids, paid someone to pose as her son so she could continue receiving his disability benefits, court records show.

During the 20 years her son was in prison, Austin, 67, received nearly $120,000 in Social Security benefits, records show.  Now, she may be headed to prison after pleading guilty to the fraud. She is to be sentenced Friday....

Austin's lawyer and grandchildren are pleading for mercy.  "My grandmother has been in my life since I was born.  If she hadn't (been), no telling what would of happened to me or my siblings," one grandson wrote to the judge....

On Friday, Mary Alice Austin will be sentenced for unlawfully accepting her son's Social Security checks, pretending to care for him even though he was in prison for 20 years for armed robbery and drug offenses.  Under a plea deal, she faces 10 to 16 months in prison.

Court documents show Austin paid someone to pose as her mentally disabled son to get his government checks.  Austin, who was raising her five grandchildren, stole nearly $120,000 during two decades -- about $6,000 a year.

Austin's family members and attorney say she was just trying to survive.  The government maintains she broke the law, using deception and trickery....

"Although Ms. Austin regrettably continued to accept her son's Social Security checks unlawfully, she did not use the money to live beyond her means or to live a lavish lifestyle," Austin's lawyer, Natasha Webster, wrote in court documents.  Webster is pleading for leniency on behalf of her client.  She has asked U.S. District Judge Victoria Roberts to sentence Austin to home confinement rather than prison. "Significantly, she has accepted responsibility for her actions," Webster wrote.

Austin's two grandsons also have written the judge letters.  One, age 12, writes: "We didn't have much but what we did have she made it work ... I'm just asking you don't take my grandmom away from us."

But Austin must pay a price for her crimes, including "some period of incarceration," Assistant U.S. Attorney Blondell Morey argued in court documents.  "There is little need in this case to deter or protect the public from a 67-year-old grandmother," Morey wrote in a March 23 filing.  "However, defendant must be punished for a crime that earned her over $100,000 and took place over 20 years."

Morey also pointed out that Austin has a criminal record, including a conviction for welfare fraud, which happened during the Social Security scheme.  "This was not a crime of opportunity, but one committed over two decades," Morey wrote.  "Her most egregious acts were hiring, on three separate occasions, someone to impersonate her son to the Social Security Administration."

So dear readers, if you were in the position of US District Judge Victoria Roberts and thus had to impose later this week a sentence upon Mary Alice Austin that is be "sufficient but not greater than necessary" to achieve federal sentencing purposes, what sentence would you select? 

March 29, 2011 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Prescription forger seeks sentencing delay with forged doctor's note

From the "you can't make this stuff up" file come this local sentencing story from California, headlined "Woman in court for sentencing allegedly presents forged doctor's note, then collapses."  Here are the particulars:

A 41-year-old woman who was in court this morning to be sentenced for prescription drug forgery allegedly presented a forged doctor’s note in an attempt to delay the proceedings, and then collapsed when the judge ordered her back into custody, according to a prosecutor.

Michelle Elaine Astumian, who had been out of jail after posting $45,000 bail, was scheduled to be sentenced today by Judge Barry LaBarbera to four years and eight months in state prison.  She had pleaded no contest in January to two counts of forging a drug prescription and one count of using a fraudulent check.  Each count is a felony.

But before the sentencing Deputy District Attorney Dave Pomeroy said that Astumian presented a doctor’s note stating that her sentencing should be postponed.  Pomeroy called the doctor whose name was signed on the note, and the doctor told him that the note was forged.

Pomeroy said that he reported the alleged forgery to LaBarbera, who ordered Astumian into custody.  She then fell to the floor, prompting the judge to clear the courtroom for about 30 minutes.  An ambulance arrived and took Astumian to a local hospital.

It’s very unusual for a defendant to react in the manner that Astumian did, Pomeroy said. “I’m trying to approach her reaction with understandable skepticism,” Pomeroy said.  Pomeroy said that Astumian will need to be brought back to court to be sentenced, but he wasn’t sure exactly when that might happen.

March 29, 2011 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Sunday, March 27, 2011

NY Times sees sexting news fit to print

Today's New York Times has a huge front-page story on teenage sexting, along with companion article looking at both the legal and social realities surrounding this modern technology issue.  Here are links to the pieces:

The middle article about state laws starts this way:

In the last two years, legislators have been weighing graduated responses to sexting between minors.  Some legal scholars refer to the images as “self-produced child pornography.”

Some states have amended their statutes on child pornography, obscenity or Internet crimes.  Many allow juvenile offenders to be charged with a misdemeanor or a lesser offense, so they can qualify for diversion programs and have their records expunged.  A few states have tried to define a sexting offense.

The laws have had a mixed response.  While many experts, educators and parents applaud the lessening of sanctions for what is often seen as thoughtless adolescent risk-taking, others deplore the establishment of a new crime that could not only intrude on First Amendment rights but could also sweep more children into the court system.

March 27, 2011 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Saturday, March 26, 2011

"Why Padilla Doesn’t Matter (Much)"

The title of this post is the title of this new piece by Professor Darryl Brown, which is now available via SSRN. Here is the abstract:

The U.S. Supreme Court’s decision in Padilla v. Kentucky might herald a breakthrough in the quality of representation provided to immigrants charged with crimes, and more broadly an advance in the Court’s recognition of the role both of plea bargaining in criminal adjudication and of the severe collateral consequences often triggered by convictions for citizen as well as alien defendants.  There are good reasons to suspect, however that Padilla’s practical impact will be modest; for many non-citizen criminal defendants, including probably Jose Padilla himself, its impact will be non-existent.  The Padilla holding seeks to ensure that defense lawyers are aware of severe collateral consequences that attach to convictions, in order both to inform their clients of those consequences to inform plea bargain negotiations among attorneys.  The Court speculated that attorneys then may be able to craft alternative criminal or immigration-law outcomes through creative bargains.

But the problem for many non-citizen defendants like Mr. Padilla is not simply -- and not primarily -- their lawyers’ unfamiliarity with immigration law; it is the content of the substantive criminal law, of sentencing law, of the sources of non-criminal law that define collateral consequences and, finally, of limited procedural possibilities for avoiding or mitigating those consequences.  None of that law changes with Padilla.  As a result, defense lawyers’ (and even prosecutors’) abilities to negotiate around criminal law or immigration law, and to achieve more favorable or just outcomes for defendants are not notably improved.  Adding to those limitations, the pervasive inadequacies of indigent criminal defense, especially in state courts, are unaffected by Padilla, further diminishing the hope that attorneys’ awareness of collateral consequences will improve client representation and case outcomes.

March 26, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Sunday, March 20, 2011

Notable new forthcoming book on juve crime and punishment

41vLLrbBgJL._SL500_AA300_I am pleased to see that Professors Christopher Slobogin and Mark Fondacaro have a new forthcoming book on juvenile justice which is titled "Juveniles at Risk: A Plea for Preventive Justice."  I am also pleased to have discovered that the first chapter of this forthcoming book is now available via SSRN here. This is the abstract the authors have now posted on SSRN:

The current approach to the juvenile crime problem is insufficiently conceptualized and too beholden to myths about youth, the crimes they commit, and effective means of responding to their problems. The currently dominant punitive approach to juvenile justice, modeled on the adult criminal justice system, either ignores or misapplies current knowledge about the causes of juvenile crime and the means of reducing it.

We argue that, with some significant adjustments that take this new knowledge into account, the legal system should continue to maintain a separate juvenile court, but one that is preventive in orientation, with a new emphasis on both rehabilitation and flexible procedures.  The view that culpability should be the linchpin of juvenile justice (touted by liberals as well as conservatives) is misguided, not only because it leads to unnecessarily harsh punishment but also because it deemphasizes crime-reducing interventions and undermines the case for handling adolescent offenders through a system that is independent of the culpability-based adult system.  The currently popular view that adult-type procedures should govern the juvenile process is also open to serious doubt, given social science research that questions the extent to which such procedures promote accuracy and fairness.

Chapter 1, which elaborates on the book’s thesis, is provided here.

This book is especially timely in the wake of the Supreme Court's work last year in Graham v. Florida.  Though Graham involved constitutional limits on punishment, the ruling should be viewed by legislatures as a call to begin re-thinking the modern approach to juvenile crime and punishment more broadly.

March 20, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, March 16, 2011

Eleventh Circuit rejects notable ACCA selective prosecution claim

The Eleventh Circuit today in US v Jordan, No. 10-11534 (11th Cir. March 16, 2011) (available here) rejects an interesting selective prosecution claim brought by a Georgia defendant asserting that "prosecutors in the Northern District of Georgia target African Americans for prosecution under the Armed Career Criminal Act."  Here is the heart of the panel's discussion of the claim:

The district court correctly denied Jordan’s motion to dismiss for selective prosecution because, at the very least, he failed to establish discriminatory effect.  As the record shows, Jordan was convicted of possession of a firearm and subject to the Armed Career Criminal Act sentencing enhancement under 18 U.S.C. § 924(e)(1), because he had been convicted of at least three prior qualifying convictions for purposes of the ACCA.  In order to establish discriminatory effect, Jordan would have to present clear evidence that a similarly situated defendant of another race was treated differently than he.  The data that Jordan submitted in his motion to dismiss showed only that African Americans account for approximately 93% of ACCA prosecutions in the Northern District of Georgia, while they account for significantly less than 93% of the general population or of the population of convicted felons who carry firearms.  Jordan’s data did not, however, include the criminal histories of the other defendants. As a result, his figures are not probative of the “similarly situated” inquiry of the discriminatory effect test.  See Bass, 536 U.S. at 864; Quinn, 123 F.3d at 1426.  Indeed, Jordan did not show that a single arrestee who was not prosecuted under the ACCA qualified for such prosecution, much less possessed a criminal history as substantial as his own.  Therefore, he “has not presented ‘some’ evidence tending to establish selective prosecution,” much less facts sufficient to create a reasonable doubt about the constitutionality of his prosecution.  Accordingly, Jordan was not entitled to an evidentiary hearing or discovery on the claim, and his selective prosecution claim fails.

I think the Eleventh Circuit is right on the law here, but I hope I am not the only one troubled to learn that there is evidence indicating that "African Americans account for approximately 93% of ACCA prosecutions in the Northern District of Georgia."  That data point alone does not itself prove or even necessarily suggest constitutionally-biased prosecutorial decision-making, but it is a data point that is deeply disturbing even if it is not in any way the product of constitutionally questionable decision-making.

March 16, 2011 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (3) | TrackBack

Judge Weinstein issues 420-page tentative opinion(!?!) indicating views on unconstitutionality of 5-year man min for CP distribution

Today's New York Law Journal includes a remarkable report on US District Judge Jack Weinstein's latest remarkable "ruling" in a federal chil porn sentencing case.  The article is headlined "Judge Battles 'Harsh' Sentence for Distribution of Child Porn," and here are excerpts:

After a four-year battle with the Second Circuit over whether the required five-year minimum sentence for distribution of child pornography is too harsh, Eastern District Judge Jack B. Weinstein has now proposed cutting in half the minimum sentence of a 19-year old who pleaded guilty to distribution....

[I]n United States v. C.R., 09 cr 155, Judge Weinstein is tackling the federal minimum head on, proposing in a draft opinion that applying the five-year sentence to the 19-year-old would be a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Instead, Judge Weinstein is proposing a 2 1/2-year sentence for CR....

In the case of CR., who pleaded guilty in September 2009, Judge Weinstein began last June to lay the groundwork for sentencing.  On his own motion in a June 3, 2010, order, he directed the prosecution and defense to address questions at a hearing that would enable him to assess what punishment would be fair to both CR and the community.  He asked the parties to weigh in on the risk CR. poses to children, the risk that he will be abused in prison and his developmental maturity at the time of the crime and presently. The hearing took place over seven days and ended in January.

Last Friday, Judge Weinstein issued a "tentative draft" 420-page opinion, setting forth his reasoning that CR. should be sentenced to only 2 1/2 years in prison, followed by long-term therapy and close supervision by the probation department in the community. Judge Weinstein also proposed finding "grossly excessive" the U.S. Sentencing Guidelines calculation prepared by U.S. Probation Department, which called for a sentence in the range of 14 to 17 years.

The judge convened a hearing for May 13 and ordered the two sides to file their briefs a week earlier.  He said he was issuing the draft opinion to "facilitate a focused discussion of relevant issues."  In his March 10 order, like the June 3 order, Judge Weinstein listed issues for the parties to address, and advised them that his draft is subject to change based on their briefs, arguments and further consideration by the court.

CR, who began viewing child pornography at age 15, was arrested at age 19 after a sting operation by the FBI in which he shared images with an agent posing as a "buddy" in a peer-to-peer file sharing program.  The FBI seized two computers showing that he had shared pornographic images with between 10 and 20 users through two peer-to-peer programs. Forensic analysis of computers revealed that CR had shared 100 images and 200 videos of child pornography.  CR pleaded guilty to one count of distributing child pornography.

In preparing its pre-sentencing report, the probation department, added five points to its guideline calculation because CR. acknowledged in interviews with probation officers "having sexual interaction" with his half-sister who is seven years younger than he....

In the case of CR, hearings have produced thousands of pages of testimony and documents exploring such technical issues as the reliability of methods used to assess the likelihood that CR will commit sex crimes in the future.  Judge Weinstein noted that neuropsychological research as to CR's insight, judgment and culpability "weighs heavily in the court's determination that the five-year mandatory sentence is unconstitutional."

A mandatory term, as applied to CR, Judge Weinstein added, "lacks any legitimate penological justification."  After his release, CR will require long-term treatment in the community, he added, to enable him "to mature into a responsible, productive, law abiding individual."

 Wowsa!  I will provide links to both this NYLJ article and to Judge Weinstein's 420-page "tentative draft" opinion when they possible.

March 16, 2011 in Assessing Graham and its aftermath, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (36) | TrackBack

Monday, March 14, 2011

Honesty apparently not the best policy for one federal child porn defendant

I believe in, repeat to my kids, and try to live by the credo "Honesty is the best policy."  But this local story of a federal child porn sentencing in Alabama, headlined "Unregistered sex offender’s honesty about sexual urges lands him harsher sentence," spotlights that federal defendants can sometimes be forced to pay a steep price for honesty. Here are the notable details:

Had it not been for Michael Wayne Powell’s honesty with probation officers, a federal judge here acknowledged, the Chunchula man likely would have gotten a routine prison sentence for having child pornography.  But Powell, 54, told a probation officer working on his presentence report that he had sexual urges that he could not control.

U.S. District Judge Ginny Granade last week sentenced Powell to 20 years in prison, a rare instance of a federal judge imposing punishment greater than the range set forth under advisory sentencing guidelines.  “Because of his admission that he cannot control himself. ... I find in this particular case, a guideline sentence is not appropriate,” the judge said.

Assistant U.S. Attorney Adam Overstreet noted that the defendant has a prior conviction for trying to lure an 11-year-old girl for sex.  Powell then failed to register as a sex offender as required by law, said Overstreet, who sought the maximum 40-year sentence. Overstreet also pointed out that Powell underwent 840 days of sex offender counseling while incarcerated in Oklahoma — apparently to no avail.  Law enforcement authorities found 788 pictures of child pornography on Powell’s computer when they searched the Wilmer home where he was living at the time....

Assistant Federal Defender Chris Knight said a 40-year prison term would be “absolutely, substantively unreasonable” for an offense that did not involve contact with a minor.  “It’s a run-of-the-mill child pornography case, and I think it calls for a sentence within the guidelines,” he said.

According to court records, Powell told a probation officer that he had never touched a child but would if he had the chance.  He called himself a danger to the community, according to the presentence report.  “All I can do is ask for mercy,” he said last week. “I know I committed this crime.  And I know how bad it is.  But I had no victim.  The victim is myself.  It’s a disease.”

March 14, 2011 in Offender Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack

Notable little Second Circuit ruling on DWI as criminal history

The Second Circuit has an important and interesting little criminal history ruling today in US v. Potes-Castillo, No. 07-5518 (2d Cir. March 14, 2011)(available here), which starts this way:

This appeal raises the question whether a conviction for driving while ability impaired in violation of New York law must categorically be counted when calculating a defendant’s criminal history score.  Because we conclude that Walter Gonzalez-Rivera’s prior sentence for violating New York’s driving while ability impaired law should not be counted toward his criminal history calculation if it is similar to an offense listed in United States Sentencing Guidelines section 4A1.2(c)(1), we remand to the District Court for determination in the first instance whether Gonzalez-Rivera’s conviction is similar to careless or reckless driving.

March 14, 2011 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, March 11, 2011

"Ex-judge Camp sentenced to 30 days in prison"

The title of this post is the headline of this Atlanta Journal-Constitution article providing the outcome of a high-profile federal sentencing today.  Here are the details:

Jack Camp, the former federal judge ensnared in a scandal involving drugs and a stripper, was sentenced Friday to 30 days in prison and 400 hours of community service.

Senior U.S. District Judge Thomas Hogan said he could not give a sentence of only probation because Camp had breached his oath of office. "He has disgraced his office," Hogan said. "He has denigrated the federal judiciary. He has encouraged disrespect for the rule of law."

Before being sentenced, Camp apologized for what he had done and thanked his family and friends, many of whom filled the courtroom. "I have embarrassed and humiliated my family as well as myself," Camp said. "I have embarrassed the court I have served on and I am deeply sorry for that. When I look back at the circumstances which brought me here and look at what I did, it makes me sick." Camp said that at the end of the day, "the only thing I can say is that I'm so very sorry."

As a judge, Camp often meted out harsh sentences and rarely gave breaks to defendants who presented mitigating circumstances to explain their conduct. On Friday, Hogan was asked by Camp's lawyers to grant leniency because of the ex-judge's decades-long battle with a bipolar disorder and brain damage caused by a 2000 biking accident....

Camp, 67, resigned from the U.S. District Court bench shortly before he pleaded guilty in November to federal charges -- giving the stripper, who he knew was a convicted felon, $160 to buy drugs. Camp was a senior judge at the time of his arrest. He will continue to receive a $174,000-a-year salary, as do all federal judges who retire and have the requisite years of service.

Related prior posts (which generated lots of notable comments):

March 11, 2011 in Celebrity sentencings, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics | Permalink | Comments (37) | TrackBack

Iowa debating how to respond legislatively to SCOTUS Graham ruling

The second piece from a two-part series in the Iowa Independent about Iowa's response to the Supreme Court's Graham ruling is available here (the first piece is linked here).  This piece is headlined "Bill seeks to conform Iowa law with SCOTUS juvenile offenders ruling; Judges could decide how long juveniles would be required to serve before being eligible for parole," and here are excerpts:

A bill that seeks to conform state code with a U.S. Supreme Court ruling on the sentencing of juveniles convicted in some felonies was introduced to the full Iowa House Wednesday. If approved, however, Iowa judges would be allowed to exercise unprecedented discretion in setting such sentences.

House File 607 has undergone changes since it was first introduced to the Judiciary Committee in late January, but its primary goal of creating new sentencing guidelines to juveniles convicted of certain class A felonies has remained the same.  In May 2010 Graham v. Floridadecision, the U.S. Supreme Court ruled that sentences of life without parole could not be given to juvenile offenders on nonhomicide offenses.  Doing so, according to the court, constituted cruel and unusual punishment and a violation of the 8th Amendment.

Within days of the ruling, and long before the Iowa legislature could modify state law to conform to the ruling, individuals convicted under such circumstances filed court motions to revisit their sentences.  An estimated eight people are serving time in Iowa prisons who were convicted as juveniles to life without parole in connection with non-homicide offenses, the most common being first degree kidnapping....

The bill, which was amended and passed just before the first legislative funnel deadline last week, would allow a sentencing judge to determine the minimum number of years that must be served before a person convicted as a juvenile could be eligible for a parole hearing.  Although the bill provides a range — between 30 and 45 years — the very idea that a judge in Iowa could utilize discretion in determining a mandatory minimum is, at the very least, unusual.  Judges in the state do not currently hold such discretionary power....

A key point within the Graham decision was that juveniles, even those convicted of horrible offenses, should be given “a meaningful opportunity” to show maturity and growth.... The proposed Iowa fix is [potentially] problematic because it requires a judge to make a determination at the time a juvenile is sentenced as to length of sentence, a concept that appears to be contradiction to Graham’s focus on the ability for a juvenile offender to change over time and be rehabilitated.

Identical study bills were originally filed in both the Iowa House and Senate that would have set a mandatory minimum of 25 years for these juvenile offenders.  Although the 25-year mark was believed to be a consensus of several groups that studied the issue, including the Criminal Law Section of the Iowa State Bar Association, lawmakers didn’t go along with the plan.  Democrats in each chamber proposed alternatives to lower the minimum to 15 years.  Republican-sponsored amendments, which were encouraged by the Iowa County Attorney Association, pushed for increased minimums up to 45 years. Between the two chambers, amendments and separate bills on the same issue were proposed that considered nearly every level between the two extremes....

“There is definitely going to some difficulty finding consensus on that issue,” said Sen. Rob Hogg (D-Cedar Rapids). “I also think there is a belief that if the legislature doesn’t act, the decision will ultimately be made the courts.”

March 11, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, March 10, 2011

You be the judge: what federal sentence would you impose on former judge Jack Camp?

As detailed in this brief article, headlined "Ex-Judge Prepares to Learn Fate," tomorrow is the scheduled sentencing for former US District Judge Jack Camp, whose 2010 arrest on charges of buying drugs, while carrying firearms, all as part of his relationship with a stripper (basics here) culminated in what struck me as a sweetheart plea deal (basics here).  Indeed, the parties' sentencing arguments suggest Judge Camp need not fear much more than a relative slap on the wrist:

U.S. District Judge Thomas Hogan is set to decide Friday whether to sentence Jack Camp to prison after he pleaded guilty to a felony drug charge and two misdemeanors.

Camp's attorneys have filed a flurry of motions asking that he be sentenced to probation and community service.  But prosecutors say he owes a debt to society that includes at least 15 days in prison.

Camp resigned in disgrace from the U.S. District Court in November.  The 67-year-old said in court filings that his decades-long battle with depression and a bicycling accident that caused brain damage led him to use drugs and start seeing a stripper.

Because the evidence in the case reveals that Camp engaged in multiple drug purchases and brought firearms with him repeatedly, the former judge is very lucky he is not facing years or even decades of imprisonment under the federal mandatory minimum sentencing provisions of 924(c).  For this reason, and a few others, I am not too pleased that the federal prosecutors are merely urging a 15-day prison term. 

I have not been able to review all the sentencing advocacy, and I doubt that a super-long prison term is necessary to achieve all the 3553(a) purposes of federal sentencing.  But I do think the 3553(a)(2)(A) concern with a sentence being sufficient "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, as well as the 3553(a)(6) with avoiding "unwarranted sentence disparities" call for more than a mere 15-day prison stint.  Were I the judge, I would probably impose a term of at least one year and probably longer.  I also would think seriously about shaming sanctions and/or other creative alternative sentencing possibilities in the hope of getting maximum deterrent bang for the federal prosecutorial buck in this high-profile setting.

I suspect many readers might have a view on the Camp case or what is a just and effective sentence in a case of this nature.  So as my post title asks, dear readers, what would you impose as a sentence on this former judge if you were had the sentencing responsibility that now falls on U.S. District Judge Thomas Hogan?

Related prior posts (which generated lots of notable comments):

UPDATEThis Atlanta Journal-Constitution article indicates that Jack Camp's ex-wife has also made a pitch for leniency:

Elizabeth Camp, the ex-judge's wife, asked Hogan for mercy and a sentence of probation, saying her husband is a changed man.  Thanks to proper medical treatment, the couple has begun to repair the damage to their marriage, she said.

The mania associated with bipolar disorder "has often been described as depression's evil twin, the insidious instigator that spurs one on to do all manner of lewd and immoral acts," Elizabeth Camp wrote.  "Mania handcuffs and gags the conscience."...

Atlanta criminal defense attorney Paul Kish said Thursday that Camp rarely granted breaks to defendants when they presented mitigation arguments to explain their behavior.  "One school of thought is that he should be punished the same way he punished everyone else," Kish said.  "The other is that he probably would not be punished for this in federal court, but for his position.  It's all very sad."

Meanwhile, in the comments, there seems to be a lot of (justified? cynical?) concern about the leniency apparently being shown by the US Attorney for its plea bargaining and light sentencing recommendation in light of Camp's offense behavior.  And at least one commentator has noted that the usual "get tough" voices in comment threads have been surprisingly silent here.

March 10, 2011 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (26) | TrackBack

Blagojevich moves to dismiss charges before retrial, which federal sentencing law kind of supports

As detailed in this Chicago Tribune article, Rod Blagojevich's lawyers have now "asked a federal judge to throw out the remaining charges against the former governor because they have not been paid for months and are 'stymied' in their ability to prepare for retrial next month." Here are more details on the motion and its prospects:

The motion, the latest in a series of early-morning filings that have garnered plenty of news media attention, would appear to have no chance of success.  After Blagojevich’s initial trial in which jurors convicted him of a lone count but deadlocked on all 23 other counts, federal prosecutors have made clear their intention to retry him on the allegations of widespread corruption while he was governor.

Ordinarily, if Blagojevich wanted to avoid a retrial, he would have to engage in negotiations with prosecutors and likely plead guilty to additional misconduct. Jeffrey Cramer, a former federal prosecutor, called the motion "frivolous."...

Former federal prosecutor Patrick J. Cotter also scoffed at the motion’s chances of success. He said it is unusual for the defense to seek to have the charges dismissed without any concessions from Blagojevich, unlike a plea negotiation in which both sides reach a compromise. “It doesn’t make any sense,” Cotter said. “He’s already convicted on that count. What is their incentive to simply dismiss everything else?”

In the motion, Blagojevich asked U.S. District Court Judge James Zagel to dismiss the remaining charges and sentence the former governor on his lone conviction for lying to the FBI. Blagojevich used up his political campaign funds paying for his legal defense during the first trial. For the retrial, Zagel has found Blagojevich unable to afford to pay his legal expenses, so taxpayers will foot the bill. Zagel, though, has limited Blagojevich to two lawyers.

In the motion, Blagojevich’s attorneys said the retrial should be called off, calling it a waste of taxpayer funds and noting the current “budgetary crisis” confronting the federal government. Cramer noted that the federal budget crisis cannot be used to let defendants walk away from charges. "That's a reason why someone gets a free pass? ... Defendants should not reap a benefit from a budget crisis" he said.

It is probably undisputed that a budget crisis and a huge national debt does not provide serious legal basis to seek dismissal of federal charges.  In the Blagojevich case, however, modern federal sentencing law provide a serious policy justification for just moving forward in his case without a retrial.  As regular readers know, the hung jury on other charges does not prevent Blagojevich's sentence from being enhanced based on other alleged wrong-doing.  Indeed, under current federal sentencing law, if Judge Zagel is convinced by a mere perponderance that Blagojevich committed other relevant offense conduct, he must increase Blagojevich's guideline range based on that conduct (though he may also use his post-Booker discretion to reject the sentencing range suggested by a guideline enhanced through unconvicted conduct).

Blagojevich is already facing a sentence of up to five years in federal prison based on his one count of conviction, and I doubt that federal prosecutors genuinely want or reasonably expect that they would get a sentence too much longer than five years for him even if he were convicted on many other counts.  Thus, as some commentators suggested last summer, it might be wise for prosecutors to make their discretion here the better part of valor and just go on to sentencing.  Indeed, I think the prosecutors could (and perhaps should) simply move to dismiss the other charges without prejudice, and thereby retain the opportunity to try Blagojevich on the charges if and when they were to conclude that justice ultimately was not served by whatever sentence Judge Zagel imposing on the one conviction count.

Some related prior Blago posts:

March 10, 2011 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Tuesday, March 08, 2011

"Double Jeopardy as a Limit on Punishment"

The title of this post is the title of this great-looking new piece by Professor Carissa Byrne Hessick and F. Andrew Hessick III.  Here is the abstract:

One of the most common reasons for a sentencing enhancement is that the defendant has a prior conviction. Courts have rejected claims that these recidivism enhancements violate the prohibition against Double Jeopardy.  They have explained that the Double Jeopardy Clause does not prohibit the legislature from authorizing multiple punishments for one offense and that, in any event, the Double Jeopardy Clause does not apply at sentencing.

This Article challenges these conclusions.  It demonstrates that the central motivation for the Double Jeopardy Clause is the prohibition multiple punishments and that allowing recidivism enhancements undermines this principle.  The Article further explains that the reasons courts give in rejecting Double Jeopardy challenges to recidivism enhancements directly conflict with the reasons they give in rejecting Eighth Amendment challenges to those same enhancements.  The consequence is an inconsistent body of law that maximizes the government’s ability to punish at the expense of individual rights.  The Article offers several reasons why the Double Jeopardy Clause is the appropriate constitutional provision to limit recidivism enhancements.

March 8, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack