Tuesday, February 08, 2011

Should parents face punishment for their kids' sexting?

The question in the title of this post is prompted by this local story out of Texas, headlined "Proposal Would Punish PARENTS of 'Sexting' Teens."  Here are the details:

A measure which would allow a judge to punish the parents of teenagers who engage in the risky practice known as 'sexting,' was introduced today in the Texas Legislature, and immediately received the support of Texas Attorney General Greg Abbott....

The measure, introduced by State Sen. Kirk Watson (D-Austin), would make sexting a Class C misdemeanor requiring a court appearance for the teenaged violator, and would allow a judge to 'sentence' his or her parent to participate in an education program on sexting's long-term harmful consequences.

'Sexting' is the use of a e-mail or a texting service to transmit an explicit photograph of themselves or of another teen.  "This bill ensures that prosecutors, and, frankly, parents, will have a new, appropriate tool to address this issue," Watson said. "It helps Texas laws keep up with technology and our teenagers."...

Currently, teens engaged in 'sexting' can be charged with possessing or trafficking in child pornography. That offense carries the potential of decades of prison time, plus the requirement that the teen register for the rest of his or her life as a sex offense pervert. "This bill's legal provisions ensure that minors are punished for their improper behavior, but do not face life altering criminal charges," Watson said.

The law would also allow teens who successfully adhere to the court's requirements, which includes completing an ‘education program’ about the consequences of sexting, to petition to have the misdemeanor offense expunged from their records.

February 8, 2011 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24) | TrackBack

Monday, February 07, 2011

Nebraska considering bills for sentences less than LWOP for juve murderers

As detailed in this local article, which is headlined "Nebraska bills seek to ease sentencing for young killers,"  the one state with one legislative body is considering two different bills concerning sentencing for juve murderers.  Here are the basics:

The Judiciary Committee is considering two bills by Omaha Sen. Brenda Council that would ease sentencing guidelines for young people convicted of murder.

One (LB203) would eliminate the sentence of life in prison for those 18 and younger. For those between 16 and 18 at the time the murder is committed, the maximum sentence would be 50 years in prison. For those younger than 16, the maximum would be 40 years.

Council's second bill (LB202) would permit those 18 and younger sentenced to life without the possibility of parole to petition for a re-sentencing hearing to seek the possibility of parole under certain conditions.

February 7, 2011 in Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Saturday, January 29, 2011

Second Circuit balks at genetic sentencing view of federal child porn offender

Though I think the child porn restitution decision by the Eleventh Circuit in McDaniel (discussed here) was the biggest federal sentencing story yesterday, today's New York Times has this piece reporting on another notable appellate ruling in a child porn sentencing setting.  The piece is headlined "Court Rejects Judge’s Assertion of a Child Pornography Gene," and it starts this way:

A federal appeals court in Manhattan overturned a six-and-a-half-year sentence in a child pornography case on Friday, saying the judge who imposed it improperly found that the defendant would return to viewing child pornography “because of an as-of-yet undiscovered gene.”

The judge, Gary L. Sharpe of Federal District Court in Albany, was quoted as saying, “It is a gene you were born with. And it’s not a gene you can get rid of,” before he sentenced the defendant, Gary Cossey, in December 2009.

A three-judge panel of the United States Court of Appeals for the Second Circuit said in ruling on the defendant’s appeal, “It would be impermissible for the court to base its decision of recidivism on its unsupported theory of genetics.”

Judges Amalya L. Kearse, John M. Walker Jr. and Rosemary S. Pooler ruled that a sentence relying on findings not supported in the record “seriously affects the fairness, integrity and public reputation of judicial proceedings.”

The panel ordered that Mr. Cossey be resentenced by a different judge, a step it said was taken only where a judge’s fairness or the appearance of fairness was in doubt. “This is one such instance,” the panel said.

The Second Circuit's full work in US v. Cossey, No. 09-5170 (2d Cir. Jan. 28, 2011), is available at this link.

January 29, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

Friday, January 28, 2011

Is it inhumane for a "giant" criminal to be incarcerated in a small cell?

The question in the title of this post might seem like an abstract query for those like Adam Kolber and the many others currently engaging in a robust theoretical debate about the significant of subjective experience to punishment theory and policies (see papers here and here and here and here and here and here for just a portion of this debate).  In fact, as detailed in this new BBC article, the question is currently before a court at The Hague:  

A Dutch prisoner described by his lawyer as a giant has gone to court over the size of his single cell, arguing that it is inhumanely small.  The prisoner, 2.07m tall (6ft 9in) and 230kg (36st), says he cannot properly sleep or use the toilet.

Prison officials have tried to relieve his discomfort by adding a a 2.15m plank and an extra mattress to his bed.  Named by his lawyer as Angelo MacD., he is asking to complete his two-year sentence for fraud under house arrest.

His lawyer, Bas Martens, told a court in The Hague that his client's conditions of detention violated the European Convention on Human Rights. He insisted that MacD. was not trying to get out of serving his time.  "My client just wants to serve a comparable sentence without pain," Mr Martens told Radio Netherlands....

"He is 2.07m tall and a metre wide and a metre deep," he said.  "He is not obese.  He is a giant.  He even walks like a giant, like out of the comic books."

MacD. began his sentence on 29 September and is not due for release until 12 April 2012. His cell in a prison in the south-western town of Krimpen aan de IJssel would probably be adequate for most prisoners but for him, the problems start in the doorway, where he must bow his head to pass through.

His bed, which is fixed to the wall, is 77cm wide and 1.96m long, according to a sketch provided by Mr Martens. This means that his client must sleep on his side ... [and] he now has to "sleep with one eye open in case he falls out of bed", Mr Martens said.

To take a shower, he must first wedge himself into the cubicle, then crouch down under the head. So tiny and low is his toilet, he complains, that "visits" must be kept to the absolute minimum.

Other alleged problems included a lack of adequate space for family visits and suitable seating in the prison canteen.  Mr Martens pointed out that his client was unable to do prison work for similar reasons, despite this being a requirement of his sentence.

A court ruling on the case is expected early next month.

January 28, 2011 in Offender Characteristics, Prisons and prisoners, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, January 27, 2011

Re-lists has experts pondering possible SCOTUS reconsideration of Almendarez-Torres

Anyone who has missed deep discussions of the Sixth Amendment and Apprendi jurisprudence in recent sentencing discussions — and you know who you are, fellow sentencing geeks — will likely get real excited upon reading this terrific new post by John Elwood at SCOTUSblog, which is titled "Re-list watch: Will the Court reconsider Almendarez-Torres?".  The post merits a close read in full by all Apprendi aficionados, as this partial excerpt from the start and end of the post highlight:

In the landmark decision Apprendi v. New Jersey (2000), the Supreme Court held that a judge may increase a sentence only if the enhancement was based upon facts found by a jury beyond a reasonable doubt.  The rule recognized only a single exception (and that grudgingly): the fact of a prior conviction, which the Court had narrowly upheld in Almendarez-Torres v. United States (1998), over the dissent of Justices Scalia, Stevens, Souter, and Ginsburg.

Almendarez-Torres has been subject to substantial criticism from the moment Apprendi was decided. The Apprendi majority itself acknowledged that “it is arguable that Almendarez-Torres was incorrectly decided.”  And in a concurrence, Justice Thomas, who had been in the majority in Almendarez-Torres, said that he had “succumbed” to “error” in providing the fifth vote for that decision....

As noted here, the Court called for a response with respect to two petitions that ask the Court to reconsider Almendarez-Torres: Ayala-Segoviano v. United States, 10-5296, and Vazquez v. United States, 10-6117.   Since the government filed briefs in opposition, the Court has relisted those cases three times, at the January 7, 14, and (apparently) 21 Conferences.

It is impossible to know with any certainty what the repeated relists mean.  The relatively lengthy delay of three relistings suggests to me that someone has drafted an opinion dissenting from the denial of cert. — if the past is any indication, Justice Thomas, who has the zeal of the converted on this issue.  I’ve discussed these cases with Tom, who thinks that Justice Kagan may be deciding whether to vote to grant.  While on the Second Circuit, then-Judge Sotomayor noted the “tension between the spirit of [United States v.] Booker [(2005)] — that all facts that fix mandatorily a defendant’s sentence should be found by a jury or admitted by the defendant — and the Supreme Court’s decision in Almendarez-Torres,” but of course she was “bound by the Supreme Court’s ruling[]” in that case.  United States v. Estrada (2d Cir. 2005).

Ayala-Segoviano and Vazquez will give us our first indication of what Justices Sotomayor and Kagan think about the validity of Almendarez-Torres — and about whether stare decisis warrants maintaining one of the most-criticized criminal law precedents still on the books.  The change in the Court’s personnel (particularly the replacement of Justice Stevens with Justice Kagan) may mean there is finally a fourth vote to grant.

January 27, 2011 in Almendarez-Torres and the prior conviction exception, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Wednesday, January 26, 2011

Iowa legislature considering response to Graham allowing juve parole eligibity after 25 years

This local story, headlined "Bill changes Iowa’s sentencing laws for some juvenile felons; Legislation would put state in compliance with a 2010 U.S. Supreme Court ruling," indicates that the Iowa legislature is working on what sounds like a sound response to last year's Graham Eighth Amendment ruling.  Here are the basics:

Some juvenile offenders who were convicted of felonies and sentenced to life without parole would be eligible for release hearings after serving 25 years if a study bill now before the Iowa Senate Judiciary Committee becomes law.

The proposed legislation, reproduced in full below, comes in response to a 2010 U.S. Supreme Court ruling, Graham v. Florida.  The high court ruled that sentencing juveniles who did not commit murder to terms of life without the possibility of parole constituted cruel and unusual punishment and was a violation of Eighth Amendment rights.

The decision has sparked appellate cases throughout the nation, and posed a significant problem in Iowa because current sentencing law does not provide minimum prison terms used to establish a timeline for parole.  Absent such mandatory minimum sentences, state judges have set aside state laws that conflict with the federal ruling and found at least one such offender to be immediately eligible for release review....

The study bill now before Iowa lawmakers sets a mandatory minimum of sentence of 25-years for offenders who commit class A felonies (excluding homicide) while under the age of 18.

January 26, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

"Ohio Mom Kelley Williams-Bolar Jailed for Sending Kids to Better School District"

The title of this post is the headline of this new piece from ABC News covering a crime and punishment story that has been generating controversy in northeast Ohio and now is becoming a topic of national discussion.  Here are the basics:

An Ohio mother's attempt to provide her daughters with a better education has landed her behind bars.

Kelley Williams-Bolar was convicted of lying about her residency to get her daughters into a better school district. "It's overwhelming. I'm exhausted," she said. "I did this for them, so there it is. I did this for them."

Williams-Bolar decided four years ago to send her daughters to a highly ranked school in neighboring Copley-Fairlawn School District. But it wasn't her Akron district of residence, so her children were ineligible to attend school there, even though her father lived within the district's boundaries.

The school district accused Williams-Bolar of lying about her address, falsifying records and, when confronted, having her father file false court papers to get around the system.

Williams-Bolar said she did it to keep her children safe and that she lived part-time with her dad. "When my home got broken into, I felt it was my duty to do something else," Williams-Bolar said....

The district hired a private investigator, who shot video showing Williams-Bolar driving her children into the district.  The school officials asked her to pay $30,000 in back tuition.  Williams-Bolar refused and was indicted and convicted of falsifying her residency records.

She was sentenced last week to 10 days in county jail and put on three years of probation. She will also be required to perform community service.

As a commentary at Salon highlights, many people have had many strong reactions to this case because of the race and class dimensions of a poor black mom being jailed for trying to ensure her kids have access to the same school opportunities as the kids of rich white parents.  And a commentary at Reason rightly spotlights that another part of the story is the exercise of prosecutorial discretion, as state prosecutors were apparently unwilling to offer the mom the opportunity to plead guilty to only a misdemeanor.

January 26, 2011 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (29) | TrackBack

Sunday, January 23, 2011

Tough discussions in California about how to handle serious juve offenders

This piece via the New York Times, which is headlined "Whither Young Offenders? The Debate Has Begun," spotlights the challenging discussions in California concerning what to do with a distinct set of challenging offenders.  Here is an excerpt:

Gov. Jerry Brown’s recent proposal to eliminate California’s Division of Juvenile Justice was billed as a way to cut $242 million from the state budget.  It was also the culmination of a decade-long effort to shut the state’s troubled youth prison system, which for years has been plagued by violence, abuse and decaying facilities.

Much of that effort has been centered in the Bay Area after accusations of abuse and neglect at the institutions surfaced in a 2003 Alameda County lawsuit.  In recent years, some local judges often refused to send young offenders to state institutions, preferring to confine them in county facilities regarded as safer and more effective.

Mr. Brown’s initiative would take that unofficial policy further.  It would scrap the state juvenile justice system and shift responsibility for confining the most violent young offenders to the local level, where they are nearer to family and have more community treatment options.  The move would affect the 1,300 youths in state care, down from 10,000 in 1996.

Even among critics of the Division of Juvenile Justice, the proposed shift has set off a new debate over whether counties are equipped to handle an influx of severely troubled young people.  “I’m disgusted with myself to think of defending D.J.J. with all the things that have happened over the years,” said Sue Burrell, a lawyer at the Youth Law Center in San Francisco, “but if you ask me right now, I would opt for keeping a very, very small D.J.J. open and not throwing the kids to the wolves.”

Ms. Burrell said she was concerned that prosecutors might see counties as unfit to handle serious offenders and thus try many juveniles as adults, forcing teenagers into adult prisons.

Barry Krisberg, a senior fellow at the University of California, Berkeley, School of Law, said that keeping young offenders at the county level might offer them fewer rehabilitation options.  “I would bet that those kids would end up in juvenile hall, in isolation, getting fewer services,” Mr. Krisberg said.  “I don’t think we can shut down the entire state system.”

But Dan Macallair, executive director of the Center on Juvenile and Criminal Justice, a nonprofit group in San Francisco, said he believed young offenders could receive better support at the local level.  “In county juvenile halls, you don’t have the entrenched gang culture and violence you have at the state youth authority,” Mr. Macallair said.  “The counties can offer a continuum of options — maximum security, minimum security, intensive services in the community — that the state could never come close to matching.”

Mr. Macallair, who has called the state institutions “relics of the 19th century,” agreed that the proposed state closings presented challenges, but he said too much hand-wringing would keep resources at the state level and prevent needed changes.  “The state system is not set up for major change,” he said. “If the money won’t be flowing to counties, counties won’t get any better, and you’ll be left with the status quo.”

January 23, 2011 in Offender Characteristics, Prisons and prisoners, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, January 20, 2011

"Inside-Trading Convicts Avoid Prison Term in 44% of New York Court Cases"

The title of this post is the headline of this notable lengthy new article from Bloomberg News.  Here is how it starts, along with some other stats from the piece:

Almost half of the 43 defendants who were sentenced in Manhattan federal court in the past eight years for insider trading avoided a prison term, with many never seeing the inside of a jail cell because they cooperated with prosecutors.

Nineteen who were sentenced since 2003, or 44 percent, weren’t incarcerated, an analysis of court cases by Bloomberg showed. Of the remainder, the average defendant got a prison term of 18.4 months. The greater the profit made on illegal trades, the longer the sentence. The longest term was 10 years. Danielle Chiesi, who pleaded guilty yesterday for her role in the Galleon Group LLC hedge fund insider-trading scandal, faces between 37 and 46 months in prison.

Since 2009, U.S. Attorney Preet Bharara in Manhattan has stepped up insider-trading prosecutions, charging more than 30 people in three overlapping rings. Of the three defendants sentenced so far in the Galleon ring, the average sentence has been 17 months. The nationwide investigation has implicated hedge funds, technology companies and so-called expert- networking firms....

The average sentence in 7,617 fraud cases in fiscal 2009 was 21.8 months, according to the U.S. Sentencing Commission, which establishes the guidelines. Of those convictions, 94.9 percent were the result of guilty pleas and 5.1 percent came at a trial.

In non-insider trading cases that year, judges in Manhattan federal court sentenced Bernard Madoff to 150 years for masterminding the largest Ponzi scheme ever, former KPMG LLP senior manager John Larson got 10 years for selling tax shelters to wealthy clients, and law firm founder Marc Dreier received a 20-year term for cheating hedge funds out of more than $400 million.

A review of government statements issued since 2003 by the Manhattan U.S. Attorney’s Office in cases in which the chief crime was insider trading showed that many sentences included probation or home confinement. Defendants typically were ordered to pay fines and restitution....

Twenty-eight of the 43 sentences reviewed by Bloomberg occurred in 2007 or later, when prosecutors stepped up their scrutiny of insider trading. In those cases, the average sentence was 17.2 months behind bars.

January 20, 2011 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Tuesday, January 18, 2011

Kansas considering getting tougher on repeat drunk drivers

This new piece from the Kansas City Star, which is headlined "Kansas considers sending repeat drunken drivers to prison," showcases my concern with state laws that are unduly lenient on drunk driving and also the appeal of technocorrections in this arena.  Here are excerpts:

Some Kansas lawmakers want to send repeat DUI offenders to prison, but that won’t be easy with the state’s budget problems and prisons that already are overcrowded.

Under newly proposed legislation, a fourth drunken driving conviction would mean prison time.  Currently a year in county jail — not state prison — is the longest sentence regardless of whether an offender has four convictions or 40....

Not everyone thinks the state can afford the changes.  Men’s prisons are already overcrowded, and Kansas struggles to fund education and basic services.  Under the bill, a fourth DUI would carry a prison sentence of as much as 17 months.  That would increase to as much as 34 months for a 10th conviction....

Among other changes Kansas legislators are considering [includes] first offenders [having] to get ignition interlock devices on their vehicles — and pay for it....

Frank Harris, state legislative affairs manager for Mothers Against Drunk Driving, said requiring interlocks for even first-time drunken drivers is probably the most important change and would cost the state nothing. It also would be part of a spreading approach, he said. In 2005, only New Mexico did that and now 13 states do, he said. Such legislation failed last year in Missouri.

Meanwhile, statistics continue to tell a story.  In 2009, four in 10 fatality traffic accidents in Kansas involved drunken driving, as did more than three in 10 in Missouri.  Harris noted that Kansas was one of the few states that year that saw an increase in drunken driving fatalities — up to 154 from 138 the year before.

Some related posts on sentencing drunk drivers and advocacy for ignition locks:

January 18, 2011 in Offender Characteristics, Technocorrections | Permalink | Comments (4) | TrackBack

Sunday, January 16, 2011

Notable new paper on the prosecution and sentencing of children for prostitution

Tamar Birckhead has this notable new paper, titled "The 'Youngest Profession': Consent, Autonomy, and Prostituted Children," posted on SSRN. Here is the abstract:

Although reliable estimates do not exist, the data suggests that the number of children believed to be at risk for commercial sexual exploitation in the United States is between 200000 and 300000 and that the average age of entry is between eleven and fourteen, with some as young as nine. The number of prostituted children who are criminally prosecuted for these acts is equally difficult to estimate.  In 2008 -- the most recent year for which data is available -- approximately 206 males and 643 females under age eighteen were reported to the Federal Bureau of Investigation as having been arrested within United States borders for prostitution and commercialized sex.  Anecdotal evidence suggests, however, that these numbers reflect only a small fraction of the children who face criminal charges as a result of their prostituted status.  Research also reveals that because most states have laws that hold children criminally liable for 'selling' sex, law enforcement and the courts readily pathologize these youth, a significant percentage of whom are runaways, drug addicted or from low-income homes in which they were neglected and abused.  Statistics additionally suggest that the number of American girls who are sexually exploited is increasing, particularly for those between the ages of thirteen and seventeen.  Likewise, it is estimated that eighty percent of prostituted women began this activity when they, themselves, were younger than eighteen.  Yet, nearly all states can criminally prosecute children for prostitution even when they are too young to legally consent to sex with adults, and very few communities have developed effective programs designed to prevent or intervene in the sexual exploitation of youth.

This Article critically examines the prevalence of laws allowing for the criminal prosecution of minors for prostitution.  It argues that rather than maintain a legal scheme that characterizes and treats such juveniles as willing participants who, if harmed, are merely getting what they deserve, a more nuanced approach must be developed in which -- at a minimum -- criminal liability should be consistent with age of consent and statutory rape laws.  It analyzes the range of ways in which states have addressed the problem of prostituted children, and it highlights those few that have successfully utilized strategies of intervention and rehabilitation rather than prosecution and incarceration.  It contrasts the impact of state versus federal legislation as well as domestic versus international policy in this area and the ways in which these differences serve to perpetuate pernicious stereotypes vis-à-vis youth and crime.  The Article addresses the historical treatment of prostituted children as criminals rather than victims by both American law and society, and critiques contemporary rationales for continuing a punitive approach toward these youth.  The Article explores the conflicting statutory, common law, and colloquial meanings of the terms 'prostitution,' 'consent,' and 'bodily autonomy' as they relate to children and sexuality.  It also considers the extent to which the criminal offenses of prostitution and statutory rape address different sets of harms and explores how gender and sexual orientation are implicated in the discussion.  The Article concludes by highlighting model programs directed at prevention, intervention, and rehabilitation as well as proposing strategies for reform, such as decriminalization and diversion.

January 16, 2011 in Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (10) | TrackBack

Friday, January 14, 2011

Infamous 93-year-old crime boss gets eight-year federal sentencing

As detailed in this New York Daily News piece, "Colombo underboss John (Sonny) Franzese could be out prison for his 100th birthday -- with time off for good behavior." Here is why:

The 93-year-old gangster was sentenced Friday to eight years for shaking down the Hustler and Penthouse strip joints and a Long Island pizzeria.

Federal Judge Brian Cogan said he was troubled by handing the mobster what could amount to a life sentence, but assistant U.S. Attorney Cristina Posa said that's exactly what the murderous mobster deserves.

"He has never held an honest job for a day in his life," Posa told the judge. "He's essentially lived as a parasite off the hard work of others by shaking them down." The prosecutor said it was disturbing that Franzese is constantly referred to as a "legend" in films and newspaper articles.

"He is largely responsible for the glamorization of the Mafia over the past century. For him to die now as a criminal in jail is not an inappropriate response to the lifestyle he lived."...

Although he was never convicted of murder, Franzese told an informant he had participated in at least 60 gangland killings. The informant taped Franzese instructing him on how to get rid of corpses: dismember the victim in a kiddie pool, then cook the bones in a microwave oven.

Three years ago when Franzese found out his son, John Jr., was an FBI informant, he thought about whacking his own flesh and blood, FBI agent Vincent D'Agostino said yesterday. "He told \[the informant\] that there would come a time to call his son and \[Franzese\] gestured with his forefinger and thumb…indicating that they would kill him," D'Agostino said.

The son wasn't killed and went on to testify against Franzese last year, helping to convict him of racketeering and extortion charges.

Defense lawyer Richard Lind said his client's hearing aid wasn't working so it wasn't clear how much he took in. When it was his turn to speak, Franzese grumbled: "What am I gonna say? I didn't get a fair...I never got a ruling in my favor." Lind quickly covered the microphone mouthpiece with his hand and told the judge that Franzese had nothing to say....

Franzese, who looks 20 years younger than his age, is confined to a wheelchair and had several illnesses. He could have gotten up to 15 years in prison.

January 14, 2011 in Offender Characteristics, Offense Characteristics | Permalink | Comments (5) | TrackBack

Wednesday, January 12, 2011

Oral argument transcript in Sykes ACCA case

I am cautiously hopeful that the transcript of today’s Supreme Court oral argument in Sykes v. United States, which is now available here, will get me more excited about the eventual resolution of this case (backstory here).   If/when it does, I will report back in this space.

January 12, 2011 in Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

An appellate amicus brief in the Rubashkin case on sentencing issues

As regular readers may recall, and as detailed in this prior post, last summer a federal district court in Iowa decided to give Sholom Rubashkin a 27-year federal prison sentence for his leadership in a financial fraud involving his kosher meat-packing plant.  Having spent some time looking at various facets of this high-profile case, I was troubled by the severity of this sentence and the district court's decision-making and I decided to help put together an amicus brief on sentencing issues as the case was appealed to the Eighth Circuit.

I am pleased to report that the Washington Legal Foundation (WLF) help me put together and file this amicus brief, as is detailed in this press release and this blog post from the fine folks at WLF. The full Rubashkin amicus brief and be downloaded at this link, and the WLF blog posting by Stephen Richer does an especially nice job spotlighting why I wanted to get involved and also what the brief argues:

Consider a man who has ten kids, is an active participant in his town, runs a business that provides a needed service for his religious community, and has never before been accused of a crime. Imagine that this man is convicted of financial fraud that is tenuously linked to large societal monetary loss. The alleged fraud served to keep the community business afloat, not to fund personal extravagances.

What type of punishment would this man deserve? A prison sentence? If so, how long? One year? Three years? But what about 27 years?...

That’s the penalty recently imposed by a judge in the Northern District of Iowa on Sholom Rubashkin, owner of Agriprocessors, a Kosher meat processing plant in Potsville, Iowa....

Washington Legal Foundation, representing 18 noted law school deans and professors, former federal judges, and former prosecutors, added its voice to the opposition on Monday, January 10th by filing a brief asking the U.S. Court of Appeals for the Eighth Circuit to vacate the sentence and remand it to another federal trial judge for resentencing....

WLF’s brief makes three arguments: First, that the district court’s calculation of the guideline range was contrary to the Sentencing Guidelines’ instruction and related jurisprudence; second, that the district court largely ignored the Supreme Court’s repeated admonition that a district court must not presume reasonable a sentence within the calculated Guidelines range; and third, that the functional life sentence given to Mr. Rubashkin (who is currently 51 years old) is incompatible with his personally history and is substantively much greater than necessary to comply with the purposes of sentencing set forth by Congress.

Related posts on the Rubashkin case:

January 12, 2011 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"DeLay flunked attitude test?: Harsh penalty could be linked to lack of remorse, some experts say"

The title of this post is the headline of this intriguing article in today's Houston Chronicle, which follows up on the notable Texas prison sentence given to former House leader Tom DeLay.  Here are excerpts:

The three-year prison sentence meted out to former U.S. House Majority Leader Tom DeLay in a political money laundering case is far harsher than sentences recommended for two other public offenders recently convicted in Central Texas.

There is, however, a high likelihood that DeLay's case will be overturned on appeal before he ever sees the inside of a prison cell, according to several criminal defense lawyers. DeLay's sentence may reflect more on his remorseless attitude before visiting District Judge Pat Priest than on the seriousness of the crime, they said.  "Maybe DeLay flunked the attitude test in front of Pat Priest," William Allison, a criminal law professor at the University of Texas, said Tuesday. "It's likely he copped a pretty bad attitude."

DeLay was convicted last November and sentenced Monday on felony charges of conspiracy and money laundering in a scheme to give $190,000 in corporate money illegally to seven Republican state House candidates in 2002.  Priest gave Delay three years in prison on the conspiracy charge and 10 years of probation on the money laundering charge.

Two other recent high profile Central Texas cases involved far less punishment: Former state Rep. Kino Flores, D-Palmview, received probation last month on four felony counts of not properly reporting his income on state ethics forms, income prosecutors said he received by using his official position to demand a 10 percent payment from his business associates.  Flores was sentenced by District Judge Bob Perkins, whom DeLay's lawyers had removed from his case in 2005.

The former general manager of the Pedernales Electric Cooperative, Bennie Fuelberg, in December received a recommendation of probation from a jury on felony charges of illegally funneling hundreds of thousands of dollars in co-op money to his brother.  A final sentence in that case has not been issued.

DeLay's defense lawyer, Dick DeGuerin of Houston, Tuesday said DeLay's sentence is unfair, especially when compared to the one Flores received.  "This was a guy who was known as Mr. Ten Percent. He took a kickback on everything," DeGuerin said.  DeLay "didn't steal any money.  He didn't rob anybody.  He didn't beat anybody up."

Prosecutors had asked Priest for a longer sentence, at least 10 years, so DeLay would have to start serving time immediately.  They said they wanted to send a signal that just because someone wears a suit and a tie does not mean he is going to get probation.... 

Sam Bassett, who was Flores' defense attorney, ... said he "was a little surprised" that DeLay received a prison sentence instead of probation in the case.  He said the case is very different from the financial fraud cases involving people such as Enron's Jeffrey Skilling.  "No one was defrauded or harmed in a direct way," Bassett said.

Related post:

January 12, 2011 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, January 11, 2011

Struggling to get psyched for Sykes, another ACCA case before SCOTUS

On Wednesday morning, the Supreme Court will hear oral argument in Sykes v. US, yet another case on the docket to resolve a circuit split over what prior crimes trigger the severe mandatory minimum prison terms in the Armed Career Criminal Act.  As this SCOTUSblog page explains, at issue in Sykesis "[w]hether fleeing the police in a car, after being ordered to stop, constitutes a 'violent felony' within the meaning of the Armed Career Criminal Act, which imposes heightened sentences for such violent felonies."

I wrote a preview of the Sykes case for the American Bar Association’s PREVIEW of U.S. Supreme Court Cases, which can be accessed here.   In that preview, I sought to play up how this latest ACCA case "implicates a number of cross-cutting jurisprudential and policy considerations."  But, somewhat annoyingly, the Justices have not in their recent ACCA work spent much time expounding upon any broader jurisprudential and policy considerations, and the issue in Sykesstrikes me as especially narrow.  Thus, as indicated in the title of this post, I am struggling to get psyched for this SCOTUS sentencing case.  Perhaps readers can use the comments to note reasons why Sykes is worth watching with some excitement or anticipation.

January 11, 2011 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Feds make case to Third Circuit that corruption sentence too low for state senator

As detailed in this local article, which is headlined "Prosecutors argue for stiffer sentence for Fumo," a real interesting sentencing appeal is heating up in the Third Circuit. Here are the basics:

Federal prosecutors Monday again ripped into a judge's decision to reduce former State Sen. Vincent J. Fumo's sentence for corruption in return for what the judge called Fumo's "extraordinary" public service.

Drawing upon an FBI investigation of Fumo's travel, the prosecutors said the claim that Fumo toiled tirelessly for the public was both a cliché and a myth. In fact, Fumo "devoted a huge amount of time to vacationing and leisure activities," spending a quarter of his time on holiday in Martha's Vineyard and Florida.

The two prosecutors noted that besides serving as a Democratic legislator, Fumo worked as a "rainmaker" for a Philadelphia law firm and was the chairman of a bank. The firm paid him nearly $1 million yearly to drum up business, and the bank also compensated him heavily....

On Monday, the prosecutors fired their final salvo, a 204-page brief, in their fight to have Fumo hauled back into court to face a resentencing in his 2009 corruption conviction.

In a decision that stirred widespread public outrage, U.S. District Judge Ronald L. Buckwalter sentenced Fumo to serve 55 months in prison for his crimes. A jury found Fumo guilty on every count in a massive indictment that charged the once-powerful legislator with defrauding the state Senate and two nonprofit organizations, and with leading the cover-up to try to thwart the FBI's probe.

The government sought a much stiffer term, agreeing with a conclusion by the U.S. Probation Office that Fumo's wrongdoing meant he should face up to 27 years behind bars under nonmandatory federal sentencing guidelines.

Buckwalter interpreted the guidelines far differently. He said they called for Fumo to receive a punishment of at most 14 years. Then, he gave the Democrat a big break because of his record in office over 30 years. "You worked hard for the public, and you worked extraordinarily hard, and I'm therefore going to grant a departure from the guidelines," the judge said.

Fumo, 67, has now served 17 months of his sentence, at a prison in Kentucky. After one more filing from the defense and probable oral arguments, he and the public will likely learn later this year whether the U.S. Court of Appeals for the Third Circuit will affirm his sentence or order a new sentencing hearing.

In a defense filing last month, Fumo's legal team said that Buckwalter was on firm legal ground in crafting the sentence and that the Third Circuit court should not second-guess the judge.

In Monday's brief and an even longer one filed last year, the prosecutors said Buckwalter had made numerous errors in calculating the guidelines applicable to Fumo and a codefendant, former Senate aide Ruth Arnao. Arnao is now free, having served her sentence of one year behind bars. Buckwalter, they wrote in Monday's filing, made "fundamental mistakes, on the basis of no stated reasoning, which contributed significantly to the grossly lenient sentences imposed in this case."

Citing a Third Circuit precedent, they said that the judge had failed to heed a rule that corrupt officials should not get special credit for "civic and charitable work," because "we expect such work from our public servants." Such credit should only be given when the official "goes well beyond the call of duty and sacrifices for the community," the appellate court ruled.

But Fumo, the prosecutors said, did not work especially hard. And, they added, "he presented no evidence that he sacrificed in any other way; rather he used his public position to gain great riches (and steal more), and gave almost none of it to charity."

Related posts concerning Fumo sentencing and appeal:

January 11, 2011 in Federal Sentencing Guidelines, Offender Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, January 10, 2011

Texas law providing wide discretion in sentencing of former House leader Tom DeLay

As detailed in this local article, which is headlined "Sentencing hearing to begin in Tom DeLay trial," former U.S. House Majority Leader Tom DeLay could soon get life imprisonment or get merely probation as a sentence following his recent state corruption convictions.  Here are the intriguing details:

The former Houston-area Republican congressman will be back in court on Monday for the sentencing phase of his trial after his Nov. 24 conviction on charges of money laundering and conspiracy to commit money laundering in a scheme to illegally funnel corporate money to Texas candidates in 2002.

Unlike DeLay's trial, which lasted nearly a month, the sentencing hearing is expected to take about two days.  DeLay has chosen Senior Judge Pat Priest to sentence him.  Priest says he is likely to make a quick decision after both prosecutors and defense attorneys finish presenting witnesses.

While he faces up to life in prison on the money laundering charge and up to 20 years on the conspiracy charge, DeLay is also eligible for probation.  "Of course we will ask the judge to grant probation," said Dick DeGuerin, DeLay's lead attorney.  "This is not a matter of economic loss, not a matter of anyone being injured or of any evil intent."

Up to nine witnesses are expected to testify on DeLay's behalf, including former U.S. House Speaker Dennis Hastert and others who worked with him.  DeLay's lawyers also submitted more than 30 character and support letters from friends and political leaders, including Israeli Prime Minister Benjamin Netanyahu and eight current U.S. congressmen. Most of the letters ask for leniency in the sentencing.

Steve Brand, one of the prosecutors, said they planned on calling several witnesses. He declined to comment on what the witnesses would testify about or what sentence the Travis County District Attorney's Office planned to request.  Some legal experts believe DeLay will likely receive little, if any, prison time.

"Diehard Democrats will want to see the book thrown at him and his conservative supporters will feel (any) sentence will be unjust," said Bradley Simon, a New York criminal defense attorney who's followed the case.  "No matter what the judge says, he is unlikely to please anybody."

In this prior post, a number of commentors had a number of creative suggestions for the sentencing judge in this notable case.  Folks should, of course, feel free to make some more suggestions now.

Related post:

January 10, 2011 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, January 04, 2011

Adult prison sentence of 25 years for 12-year old killer in Indiana

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As detailed in this lengthy local article from Indiana, which is headlined "Gingerich sentenced to 25 years in prison," today a very young killer in Indiana got a very adult sentence for his crime. Here are the specifics:

A 12-year-old Kosciusko County boy has been sentenced to 25 years in prison for his role in the killing of the stepfather of one of his friends. Today a judge sentenced Paul Gingerich to 30 years with the last five to be served on probation.

Back on April 20th of last year, Colt Lundy and Gingerich shot Phillip Danner, 49, in his home in Cromwell.  Danner was shot four times and died in the home.  Danner is Lundy's stepfather.

During the setencing hearing Tuesday Gingerich said, "I'm sorry for what happened to Mr. Danner.  I'm sorry for what the family had to go through. I did wrong and I'm ready to [take responsibility] for my actions."...  In November, Gingerich pleaded guilty to conspiracy to committ murder in exchange for dropping a murder and aiding in murder charge.

In court, Gingerich's father, Paul Gingerich, asked Judge Reed to give his son the minimum sentence. He had requested to give his statement to the judge in person in court rathar than write a letter as others did.... "I know what he did ws wrong, but he should be punished as a child. Children follow. They do what they're told. They do not have the moral compass we do," he said in court....

Gingerich's attorneys also argued that the boy should be sentenced to the minimum 20 years and that the sentence be carried out in a juvenile facility.  Fred Franco Jr., one of Gingerich's attorneys, said that while the court may have judged his client as an adult, he's still a boy. Gingerich, he said, had never been in trouble before.

"No one knows why he did what he did.  Even Paul Henry can't tell you.  Why he listened to Colt Lundy no one knows," Franco said....  "Paul didn't know Mr. Danner.  This plan was initiated and carried forth by Colt," Franco said.

Franco argued that Gingerich and two other 12-year-old boys were bullied to be involved. "The boys were afraid of Colt. Colt used to shoot the boys with BB guns," he said in court. One 12-year-old boy was just a witness but didn't run away with the other three.  The other 12-year-old stood watch outside the house and left with Lundy and Gingerich.  He stayed in the juvenile system and has already finished serving six months in a juvenile facility....

A psychologist, Dr. Stephen Ross, did an evaluation on Gingerich. Cohen said those results found that Gingerich was a "normal young boy, not a sociopath."

Kosciusko County Prosecutor Steven Hearn said while he wasn't going to respond to every argument the defense made, it didn't mean he agrees with them.

January 4, 2011 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (16) | TrackBack

Interesting policy echoes from notable clemency grants in California

One of many reasons I favor and often urge robust use of clemency power by executive officials is because notable clemency grants often spark useful public discussion of important issues of sentencing law and policy.  This reality is on full display in California, where two sentence commutations by outgoing Governor Arnold Schwarzenegger (discussed here) have lots of folks buzzing.  For example, consider this Mercury News editorial, which is headlined "Make governors issue pardons before the end of term."  Here is how it starts:

Governors frequently fire off pardons on their way out the door. Whether apt or outrageous, the details tend to get buried by attention to the new regime. But any rise in public cynicism that results from what appears to be a political pardon does not go away. It's cumulative.

This is the case with Gov. Arnold Schwarzenegger's commuting of a manslaughter sentence for the son of former Assembly Speaker Fabian Nuñez, a Democrat who now works in a consulting firm with Schwarzenegger's former communications director.

So we have a suggestion. All pardons should have to come at least six months before a governor leaves office. That way governors would have to defend them while they're still working on a legacy. They'd be less likely to risk appearing to be motivated by political interest.

Pardons can bring justice, and may have in at least two of the shortened sentences Schwarzenegger granted -- one for a woman who, at 15, had killed her pimp, and the other for a man who many believe was acting in self-defense in a shooting.  But reducing the manslaughter sentence for Nuñez's 21-year-old son has got heads shaking.

Relatedly, consider also this local article, which is headlined "Clemency of juvenile killer gives Yee hope." Here are excerpts:

The last-minute sentence commutation of a woman serving life without parole for killing her pimp at age 16 has given a Peninsula state senator hope this is the year California abolishes the absolute term for all juvenile offenders.

As one of his final gubernatorial acts, Arnold Schwarzenegger granted clemency to convicted murderer Sara Kruzan by reducing her sentence to 25 years to life in prison. While the change doesn’t guarantee freedom to Kruzan, who fatally shot the man in 1994, it does offer the possibility.

State Sen. Leland Yee, D-San Francisco/San Mateo, has long argued that all juvenile offenders deserve the chance at rehabilitation and release rather than being incarcerated at a young age with no hope of parole.  He initially proposed completely outlawing the sentence but it failed to pass.  Last year, Yee successfully pushed a tweaked version known as the Fair Sentencing for Youth Act through the Senate with bipartisan support but it died in the Assembly during the final days of the session.  He reintroduced the legislation, now known as Senate Bill 9, last month....

Yee’s bill does not abolish life without parole outright but would give courts leeway to review convictions after 10 years and consider changing some sentences to a minimum of 25 years to life.   Yee’s several attempts to pass the bill have been supported strongly by psychiatric and child advocacy groups but opposed by the California District Attorneys Association and California Police Chiefs Association.

January 4, 2011 in Clemency and Pardons, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack