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

Effective coverage of Iowa's challenges operationalizing Graham ruling

The Iowa Independent has this really interesting new piece headlined "Iowa courts struggling with application of U.S. Supreme Court ruling; Family of man convicted in 1994 when he was 17 hope federal decision can lead to parole." (Hat tip: How Appealing.)  Here are snippets:

In 1994, when [Jason] Means and five additional teens were found guilty of crimes in connection with [Michelle] Jensen’s death, both sides believed most of the legal uncertainty was behind them.  Means, then 17, was found guilty of first degree kidnapping, first degree robbery, second degree murder, criminal gang participation, conspiracy to commit robbery and unauthorized possession of an offensive weapon.  In Iowa, a conviction on the kidnapping charge alone mandated a prison sentence of life without parole.

Two other young men — one 17 and the other 18 — were also given prison sentences of life without parole.  The three remaining teens, who testified for the prosecution, were given lesser sentences.  Two have since been given parole, but have committed subsequent crimes that have placed them back behind bars.

Although there was an appeal launched by Means’ legal counsel shortly after his sentencing, it was always considered to be a long shot.  “After a certain amount of time, you resign yourself to the fact that this is the way it is going to be — that the rest of your son’s life will be spent in prison,” Cheryl Clark, Means’ mother, said in an interview with The Iowa Independent.

But a May 2010 U.S. Supreme Court decision, Graham v. Florida, appears to have mandated a different fate for Means and Tony Hoeck, the other 17-year-old sentenced to life without parole....  The court found that sentencing juvenile offenders to life without the possibility of parole for non-homicide offenses is a violation of the “cruel and unusual” clause of the Eighth Amendment.... The court specifically stated that while such a juvenile offender is not given a “guarantee to eventual freedom,” the law does require the state to provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

While at first glance the Graham decision may appear as open-and-shut on matters involving those convicted of non-homicide offenses as juveniles, most cases remain tied up in the courts as states interpret and apply the ruling.  According to the Graham decision, there were 129 such juvenile offenders serving throughout the U.S. Of those, 77 were incarcerated in Florida, the remaining 52 scattered across 10 states.  There are an estimated eight such cases in Iowa, including one that was decided in December 2010 by the Iowa Supreme Court....

In September 2010, [U.S. District Court Judge Gary D.] McKenrick struck the portion of Means’ sentence that prohibited the opportunity for parole, leaving Means to “serve the remainder of his natural life in the custody of the director of the department of corrections, however the defendant shall be subject to parole consideration.”  According to information provided [Means' lawyer in court], despite the judge’s order Means continues to be denied an opportunity to appear before the parole board or be provided a future date for such a hearing....

State lawmakers are also considering their own proposals to bring the Iowa Code in line with the Graham ruling, but even if such a proposal becomes law, it is unlikely that it could be applied to the Means’ case or other old cases already before the court.  The law doesn’t allow courts to revisit sentences if the end result would be an increase in the severity of the sentence.  As it stands now, with the prohibition of parole removed, the sentences faced would be reduced to life with an immediate eligibility of parole — which is, in all likelihood, far less than what would codified for future cases....

“It would mean a great deal for Jason to have that hearing,” his mother, Cheryl Clark, said. “He should have an opportunity to stand before the parole board and present himself — how he has changed and what type of a person he is now.”  Steve Clark, Jason’s step-father, added that “he’s not the same person now that he was at 17.”...

Outside of the courtroom, however, Cheryl Dittmer continues to grip a framed photograph of her late daughter Michelle so hard that her knuckles match the marble floor.  Since 2008, she’s watched and protested as three of the teens convicted in connection with her daughter’s murder have been paroled. She isn’t ready to witness another.  “I agree with the premise of Graham,” Dittmer told The Iowa Independent after the hearing. “I believe that there should be an opportunity for a juvenile to show they’ve grown and changed — but not in this case.”

March 8, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

The new challenges of new "child porn" in a new media world

Regular readers know the many sentencing challenges posed by the proliferation of child porn resulting from the internet and related technologies.  And this New York Times article, headlined "Michigan Town Split on Child Pornography Charges," highlights some of the new challenges that new technology is posing for this area of law.  Here are excerpts:

People in this economically pressed town near Lake Michigan are divided into two camps: Those who think Evan Emory should pay hard for what he did, and those who think he should be let off easy.

Mr. Emory, 21, an aspiring singer and songwriter, became a household name here last month when he edited a video to make it appear that elementary school children in a local classroom were listening to him sing a song with graphic sexual lyrics. He then showed the video in a nightclub and posted it on YouTube.

Tony Tague, the Muskegon County prosecutor, stands firmly in the first camp: He charged Mr. Emory with manufacturing and distributing child pornography, a crime that carries a penalty of up to 20 years in prison and 25 years on the sex offender registry. “It is a serious, a huge violation,” said Charles Willick, whose 6-year-old daughter was one of the students, all readily identifiable, in the video. “He crossed the line when he used children.”

Mr. Emory, who had gotten permission to sing songs like “Lunchlady Land” for the first graders, waited until the students left for the day and then recorded new, sexually explicit lyrics, miming gestures to accompany them. He then edited the video to make it seem as if the children were listening to the sexual lyrics and making faces in response.

Mr. Emory’s supporters, including the almost 3,000 people who have “liked” the “Free Evan Emory” page on Facebook, say the charge is a vast overreaction to a prank gone astray, and a threat to free expression. “I think they’re making a very huge deal out of it ,and it’s really not that big of a deal,” said Holly Hawkins, 27, a waitress at the Holiday Inn downtown. “None of the kids were harmed in any way.”

Legal experts say the case — and the strong reactions it has drawn from places as far as Ireland and Australia— underscores the still evolving nature of the law when it comes to defining child pornography in the age of Facebook, YouTube and sexting. The Supreme Court has ruled that child pornography is not subject to the same First Amendment protections as adult pornography, since it is assumed that the child is being abused.

But with the rise of technology, said Carissa B. Hessick, an associate professor at the Sandra Day O’Connor College of Law at Arizona State and an expert on child pornography and criminal sentencing, “now we have situations where people are being arrested and charged” in connection with digitally altered images, where no child was abused. There remains much uncertainty about how the law should be applied in such cases, she said. But because most defendants take plea bargains instead of going to trial, the courts are often deprived of the opportunity to sort it out.

Mr. Tague argues that the state statute covers not only filming a child in a sexual activity but also making it appear that a child is engaging in that activity. But Ms. Hessick questioned whether the Michigan law could be applied in Mr. Emory’s case or “whether they’ve overcharged him.”

Even the Muskegon County sheriff, Dean Roesler, whose deputies arrested Mr. Emory after parents complained about the video, acknowledged that the case represented uncharted territory. While he found the video alarming and offensive, Sheriff Roesler said, “I realize the Internet is just a whole new arena that we’re learning to deal with in law enforcement, and actual legislation is having a hard time keeping up.”

March 8, 2011 in Offender Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (29) | TrackBack

Sunday, March 06, 2011

"States Prosecute Fewer Teenagers in Adult Courts"

The title of this post is the headline of this interesting front-page article from today's New York Times.  Here is how it gets started:

A generation after record levels of youth crime spurred a nationwide movement to prosecute more teenagers as adults, a consensus is emerging that many young delinquents have been mishandled by the adult court system.

Last year, Connecticut stopped treating all 16-year-old defendants as adults, and next year will do the same for 17-year-olds. Illinois recently transferred certain low-level offenders younger than 18 into its juvenile system.  And in January, lawmakers in Massachusetts introduced a bill to raise the age of adulthood in matters of crime, and their counterparts in Wisconsin and North Carolina intend to do the same.  By year’s end, New York might be the only state where adulthood, in criminal matters, begins on the 16th birthday.

The changes followed studies that concluded that older adolescents differed significantly from adults in their capacity to make sound decisions, and benefited more from systems focused on treatment rather than on incarceration.

A 2010 report by Wisconsin’s juvenile justice commission to the governor, James E. Doyle, and the Legislature found that “for many, if not most, youthful offenders, the juvenile justice system is better able to redirect their behavior,” in large part because of the greater availability of social services.

Most of the studies pointed to a 2005 decision by the United States Supreme Court in  Roper v. Simmons that outlawed the death penalty for defendants who were younger than 18 when their crimes were committed, because of the “general differences” distinguishing them from adults — a lack of maturity, greater susceptibility to peer pressure and undeveloped character.

It is more expensive to prosecute a defendant in juvenile court, and opponents of the changes are questioning the costs at a time when states are facing deep budget deficits. In New Hampshire’s House of Representatives, members voted overwhelmingly in 2008 to raise the age at which defendants are considered adults, to 18 from 17, but the bill died in the finance committee because of the projected cost.

In North Carolina, where proposals have failed in the last two legislative sessions, the issue has also largely been about money. “It does not make sense to take a system that all the experts agree does not have the resources to care for the children, and then add two more age groups,” said Edmond W. Caldwell Jr., vice president and general counsel of the North Carolina Sheriffs’ Association, which opposed legislation to send 16- and 17-year-olds to the juvenile courts.

An analysis by the Vera Institute of Justice, a criminal justice research group that has advocated alternatives to prison, found that transferring about 31,000 16- and 17-year-olds to North Carolina’s juvenile system would cost approximately $71 million annually, but generate $123 million in benefits each year, assuming there were fewer arrests over the long term and fewer people in jails and prisons.

March 6, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, March 03, 2011

New Jersey report finds recidivists driving up prison costs

This lengthy local article, headlined "Repeat offenders in N.J. prison system are draining state budget, report finds," highlights that concerns about state spending and budgets in New Jersey is getting focused on corrections.  Here are excerpts:

New Jersey’s prison system is a revolving door for criminals that drains the state budget by jailing the same people over and over again, according to a high-level review being conducted for the Christie administration.

A draft copy of the report, obtained by The Star-Ledger, says the state’s patchwork system is in dire need of reform to reduce the number of ex-offenders returning to prison. And it says the best way to do that is to connect former inmates with jobs so they don’t return to crime.

The report’s conclusions are the result of a broad, months-long review involving several state departments and the Manhattan Institute, a conservative New York City-based think tank with a progressive reputation on prison issues.  "Exorbitant criminal justice spending persists, incarceration lingers at a high rate, and the same individuals cycle between the criminal justice system and New Jersey communities," the report says....  "(Employment) provides individuals with the funding to pay for necessities and, equally important, dignity and hope," it says.

The high rate of former inmates returning to prison is a problem that has dogged criminal justice and social service organizations around the country, and the report says New Jersey needs to restructure its approach.  Under its recommendations, the governor’s office would coordinate all of the state’s efforts, from job training to drug treatment to law enforcement.  The Parole Board, which already supervises about 60 percent of inmates leaving prison, would be the lead agency.

The report has not yet been presented to Gov. Chris Christie, two sources said. Spokesman Michael Drewniak declined comment.  If Christie endorses the recommendations, it would be the former federal prosecutor’s first major foray into criminal justice policy since taking office.  Prison reform efforts nationwide have garnered support across the political spectrum, from conservatives seeking to cut the cost of incarceration to liberals hoping for social change....

The review has involved a cross-section of state officials and even a former governor: James E. McGreevey, who volunteers with inmates and remains active on prison issues. "Everyone in our nation — conservative Republicans, liberal Democrats, evangelical Christians, agnostics — understands our prison system doesn’t work," McGreevey said. Newark has been running its own program to reduce recidivism for the past two years.

The program’s director, Ingrid Johnson, said 829 out of 1,394 participants were placed in jobs, with a job retention rate of 71 percent.  Only 7 percent of all participants have been arrested again. Johnson said people with steady work are less likely to commit new crimes. "Employment provides hope and direction," she said.

Prison reform may hold some appeal for Christie, who has pledged to cut spending.  It costs an average of $48,000 a year to keep an inmate locked up in state prison. "The situation is unsustainable," the report says.

March 3, 2011 in Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack

Tuesday, March 01, 2011

"Juvenile Incarceration and the Pains of Imprisonment"

The title of this post is the title of this interesting-looking new article by Professors Jeffrey Fagan and Aaron Kupchik, which is now available via SSRN.  Here is the abstract:

As a result of the movement to criminalize youth crime in the 1980s and 1990s, large numbers of incarcerated youth serve their sentences in adult correctional facilities.  In an effort to understand the ramifications of this practice, prior research studies have compared the correctional experiences of youth in juvenile and adult facilities.  Yet this research tends to minimize the pains of imprisonment for youth in juvenile facilities, based on the contrast to adult facilities and the toxic conditions of confinement within them.

In the following article, we contribute to this literature by analyzing data from interviews with 188 young men incarcerated in juvenile and adult facilities across two states.  Our results show that although inmates in adult facilities (surprisingly) give better reports than youth in juvenile facilities on several measures (including criminal activity and victimization), they also fare much worse on other measures.  Importantly, the inmates in adult facilities report substantially and significantly greater rates of PTSD and mental illness symptoms, and are much more likely to be afraid for their safety, compared to those in juvenile facilities.  Based on these results, we argue that incarceration should be used only as a last resort for juveniles, regardless of institutional auspice, but that when it is deemed necessary, juvenile correctional facilities represent the lesser of two evils.

March 1, 2011 in Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Monday, February 28, 2011

Sentencing memo for former federal judge urges probation and stresses mental health issues

This local article, headlined "Atlanta Fed Judge Busted With Drugs and Stripper Suffered Depression and Brain Damage, Sentencing Memorandum Says," reviews some notable sentencing arguments being made by a high-profile criminal defendant.  Here are details:

Ex-Federal Judge Jack Camp is hoping to stay out of prison, hoping a judge considers his sentencing memorandum that focuses on his mental health and problems in life on March 11.

In a memo filed in federal court in Atlanta on Friday, Camp’s attorney William Taylor of Washington writes that Camp has suffered from acute depression, brain-damaging from a bicycle accident and personal family tragedy that may have contributed to him getting busted for buying cocaine for a stripper he was having an affair with.

“They do not excuse his conduct,” his attorney wrote.”  They do help explain, however, how in May of 2010 a lonely man in the twilight of his life became entangled with a seductive prostitute more than willing to take advantage of his needs and of his misguided impulse to be her friend and protector.”

The memo notes that Camp entered a psychiatric hospital after his arrest last year.  The physician in charge of his evaluation and treatment, Dr. Miles Quaytman talked to the probation office....

On Nov. 19, Camp, who was on senior status, pleaded guilty to aiding a felon in possessing illegal drugs, possessing illegal drugs and giving his government issued lap top to the stripper he was having an affair with.  He has resigned as a federal judge, which is lifetime presidential appointment.  Camp bought drugs for the stripper, who was cooperating with authorities.

The papers also noted that Dr. Qaytman found that Camp suffered serious head injury in a bicycling accident in 2000 and he has no memory of that.  “In addition to his mood cycling disorder and the physical damage to the brain, Mr. Camp has faced a number of difficult and stressful personal challenges,” the sentencing memorandum said.

Plus, he had prostrate cancer, his mother has dementia and his sister has stage four colon cancer.  The document asked that he be sentenced to probation and community service. “No one can assess precisely how these features of his personal mental health and the sorrows and stress of his life interacted,” the filing said.

These kinds of offender-based sentencing arguments for leniency are not at all uncommon, especially since Booker made the guidelines advisory. But I believe that former Judge Camp was known for being not especially influenced by these types of arguments when he was the one doing the sentencing. But now that the sentencing tables have turned...

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

February 28, 2011 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (11) | TrackBack

Thursday, February 24, 2011

Problems with kidney transplant plans for Mississippi sisters given early prison release

Regular readers likely recall the sentencing story from late last year, blogged here, concerning Mississippi Governor Haley Barbour's decision to grant early release from prison to two sisters serving unusually long sentences for armed robbery.  What made the story especially notable was Barbour's comments that he decided to suspend the sentences in light of the poor health of one sister, who requires regular dialysis, and that the other sister's release was contingent on her giving a kidney to her sibling.  This new ABC News story, headlined "Scott Sisters Must Lose Weight to Comply With Prison Release," provides the latest development in this high-profile case:

The Scott sisters who were released from a Mississippi prison last month on the condition that one donate a kidney to the other will have to wait until they lose weight before they can perform an organ transplant.

Their doctor told Jamie Scott -- who is 38, 5-feet tall and weighs 254 -- that she has to lose about 100 pounds before she can receive her sister's kidney.  Gladys -- who is 36, 4-feet-9 and weighs 185 -- has to lose about 40 pounds and quit smoking.

Though I have never aspired to be a TV executive, this story does inspire me to propose a new season of The Biggest Loser: Clemency Edition.  In addition to the Scott sisters, the 500-pound Dutch prisoner (remember him?) who claims he is subject to inhuman punishment because he is too big for a cell could also be on the show.  (And Governor Haley Barbour himself could probably benefit from spending a few weeks training with Jillian Michaels, especially if he wants to be in shape for a presidential run next year.)

February 24, 2011 in Clemency and Pardons, Offender Characteristics | Permalink | Comments (1) | TrackBack

Wednesday, February 23, 2011

Border vigilante who engineered double murder sentenced to death in Arizona

As detailed in this CNN article, which is headlined "Jury decides on death penalty for woman who headed vigilante squad," a high-profile murder trial culminated in a high-profile death sentence yesterday in Arizona.  Here are the details:

Arizona jurors decided an anti-illegal immigration activist -- portrayed as the ringleader of a hit squad -- should receive the death penalty for the killings of a Latino man and his 9-year-old daughter, a court spokeswoman said Tuesday.  The Pima County jury's decision, which was unanimous, is binding....

Forde showed no emotion as the verdict was read, according to CNN Tucson affiliate KGUN.  Her attorney, Eric Larsen, said he "fully expected that this community valued human life greater than this jury did."

Juror Angela Thomas told KGUN, "We chose death because that's what seems fair. There's a little girl in this equation whose father won't be able to walk her down the aisle," she said.  Forde was convicted February 14 on eight counts, including two counts of murder for the shooting deaths of Raul Flores and his daughter, Brisenia, and the attempted murder of the child's mother, Gina Gonzales.

The vigilante attacks were in May 2009.  The child and her father were American-born U.S. citizens but were targeted by Forde and her hit squad. Her alleged accomplices, Albert Robert Gaxiola and Jason Eugene Bush, are scheduled to go on trial later this year.

During the trial, prosecutors portrayed Forde as the ringleader, saying she had planned the raid and the murders to steal weapons, money and drugs to finance a new anti-illegal immigration outfit.  The trio picked the Flores home, prosecutors said, because Gaxiola claimed they would find drugs there.  While Flores had a history of drug-related offenses, no drugs were found in the house.

Gina Gonzalez gave a victim impact statement last week. "I miss my husband, I miss my daughter, I miss my family, I miss my life ... and that's all because of a choice she made," Gonzales said of Forde, according to CNN Tucson affiliate KVOA.

The defense told the jury that Forde has a personality disorder caused by a childhood of abuse, abandonment and living in seven different households by the age of 5, according to KVOA.

February 23, 2011 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics | Permalink | Comments (1) | TrackBack

Saturday, February 19, 2011

Florida still dealing with the fall-out and challenges of Graham

This local article, headlined "After U.S. Supreme Court ruling, local juveniles seek to have sentences thrown out," spotlights some of the issues that Florida continues to confront as a consequence of the Supreme Court's Eighth Amendment decision last year in Graham. Here are excerpts:

Nine months after the U.S. Supreme Court ruled that juveniles can't be sent to prison for life without parole for crimes other than murder, two convicted rapists will be in Palm Beach County court next week seeking to have their sentences thrown out.

David Slocum and Emmanuel Paul were convicted of raping a 17-year-old student from Switzerland after grabbing her at gunpoint on Flagler Drive in 1994. Because they were 17 when the grisly crime was committed their sentences are no longer valid. Their cases will be considered Wednesday.

Florida leads the nation in the number of youths serving life sentences for non-homicide crimes. Resolving the issue is complex because the Legislature abolished parole in 1983. Identical bills have been filed in the Florida House and Senate to establish parole for juveniles who are sentenced to life in prison for non-homicide crimes. However, it would only impact those sentenced in the future.

Even so, Rep. Michael Weinstein, R-Jacksonville, says he doubts the measure he is sponsoring will pass. Having slammed the door on criminals' hopes for early release, many lawmakers don't want to give anyone — even those sentenced as juveniles — the chance for parole, said Weinstein, a Duval County prosecutor.

To make it more palatable, Weinstein is suggesting that teen criminals serve 25 years before they could be considered for parole. Further, they would be required to have exemplary prison records, completed educational courses and taken other steps to prove they could live outside prison walls. Still, Weinstein said, "I would be surprised if it gets done."

A lawyer who has long fought injustice in the criminal justice system told a group of attorneys and judges in West Palm Beach on Friday that Florida's record is disturbing. A staggering 79 percent of the 77 teen criminals in Florida who are serving life sentences for non-homicide crimes are either black or Latino, attorney Bryan Stevenson told members of the F. Malcolm Cunningham Bar Association.

February 19, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, February 16, 2011

Somali pirate gets sentence of nearly 34 years in federal prison

As detailed in this Bloomberg report, "Somali pirate Abduwali Muse was sentenced to 33 years and nine months in prison for hijacking the container ship Maersk Alabama in the Indian Ocean in 2009." Here is more:

U.S. District Judge Loretta Preska in New York handed down the sentence today.  Muse pleaded guilty in May to two counts of hijacking maritime vessels, two of kidnapping and two of hostage taking.  Prosecutors said he led pirates who captured the Maersk Alabama and held its captain, Richard Phillips, for five days.

The sentence is at the top of a range in an arrangement between Muse’s lawyers and prosecutors. The defense asked for the minimum, 27 years.  The government sought the maximum because of what it called the “extraordinarily depraved and violent nature of Muse’s crimes.”

Muse and his companions boarded a ship in the Indian Ocean and took hostages, with Muse threatening to kill everyone aboard with an improvised explosive device if the authorities came, according to prosecutors....

Muse was captured by authorities after the arrival of the USS Bainbridge. Snipers killed his three accomplices, and the Federal Bureau of Investigation brought Muse to New York.

His attorneys, Fiona Doherty and Philip Weinstein, said that their client grew up in poverty in Somalia, where his father sometimes tied him to a tree as punishment.  Muse worked in fishing communities in the coastal area known as Puntland, where pirate gangs have their roots, his attorneys said. He was driven to piracy by poverty, they said.

Muse was 16 at the time of the hijacking, his lawyers said, A U.S. magistrate judge rejected the claim that he was underage.  Assistant U.S. Attorney Brendan McGuire said last year that he told one of his hostages he was 24.

February 16, 2011 in Offender Characteristics, Offense Characteristics | Permalink | Comments (25) | TrackBack