Wednesday, August 10, 2011
Sentencing debate joined for Raj Rajaratnam in high-profile insider trading case
As detailed in this Bloomberg news report, which is headlined "Rajaratnam Prison Sentence of More Than 24 Years Sought by Prosecutors," a high-profile insider trading case is getting closer to sentencing. The parties have apparently filed initial sentencing memos, and here is how this Bloomberg report describes the terms of the sentencing debate:
Galleon Group LLC co-founder Raj Rajaratnam, labeled by prosecutors as the “face of illegal insider trading,” should spend as long as 24 years and five months in prison, the U.S. told the judge who will sentence him.
Lawyers for Rajaratnam, in a separate court filing yesterday, asked U.S. District Judge Richard Holwell in Manhattan for a prison term “substantially below” what federal guidelines recommend. Rajaratnam’s attorneys, citing their client’s poor health, urged Holwell not to force him to die in prison.
Rajaratnam, 54, was convicted in May of all 14 criminal counts of conspiracy and securities fraud he was charged with. He’s scheduled to be sentenced Sept. 27.
Prosecutors said he should serve at least 19 years, seven months in prison. “Rajaratnam repeatedly leveraged the power of money and his position as the head of a $7 billion hedge fund to induce friends, employees and associates to participate in his criminal activities,” Justice Department lawyers said in their sentencing memorandum yesterday. “He is the modern face of illegal insider trading.”
Prosecutors called Rajaratnam the most “egregious violator” of insider-trading laws ever to be caught. He engaged in a seven-year conspiracy to trade on inside information from corporate executives, bankers, consultants, traders and directors of public companies including Goldman Sachs Group Inc. (GS), they said. He gained $63.8 million as a result of the scheme, according to the government....
Prosecutors called Rajaratnam a “fundamentally deceptive and dishonest person.” They said he lied under oath in a civil deposition and told others how to avoid detection. They also urged the judge to send a message of “deterrence” to combat the “rampant insider trading during the last several years.”
“Rajaratnam represents the worst of illegal insider trading,” prosecutors wrote. They compared him to Enron Corp.’s Jeffrey Skilling and WorldCom Inc.’s Bernard Ebbers, convicted in what prosecutors called “the worst of accounting frauds,” and Bernard Madoff, who they said represents “the worst of Ponzi schemes.” Skilling was sentenced to 24 years, Ebbers to 25 years, and Madoff to 150 years....
“Mr. Rajaratnam is not a healthy man,” his lawyers wrote, citing “significant and challenging medical issues” that are known to the court’s probation department. “His death will be hastened by a term of imprisonment,” they said.
Rajaratnam’s lawyers submitted letters on his behalf from his family members, former business associates, ex-employees and even his apartment doorman. Some of the letters detail what the defense said is more than $45 million in charitable donations by Rajaratnam in the U.S. and abroad, including millions of dollars to help victims of a tsunami that devastated his native Sri Lanka....
The defense argued that Rajaratnam’s crimes are “not in the same league” as those committed by Enron or WorldCom executives “since those defendants betrayed their own shareholders and employees.” Rajaratnam did nothing to harm his investors, [his lawyers] wrote. [They] also said that Rajaratnam’s sentence should be consistent with those imposed on others convicted of insider trading, including former New Castle Funds Analyst LLC Danielle Chiesi, a co-defendant who was sentenced on July 20 to 2.5 years behind bars.
August 10, 2011 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (4) | TrackBack
Monday, August 08, 2011
Should all letters to a sentencing judge in high-profile controversial case be made public?
The question in the title of this post, concerning which I have mixed feelings, is prompted by this local article headlined "Attorney argues for release of Ciavarella sentencing letters." Here are the details prompting the query:
Letters written to a federal judge concerning the upcoming sentencing of kids-for-cash judge Mark A. Ciavarella Jr. should be made public, an attorney representing The Citizens’ Voice andThe Scranton Times-Tribune argued in a letter to the court today.
The letters, including character references written on Ciavarella’s behalf and victim-impact statements, should be made available on First Amendment grounds and to satisfy the public’s right of access to judicial records, according to the letter written by attorney Joseph O. Haggerty Jr. on behalf of the newspapers, which are both published by Times-Shamrock Newspapers. "Access to sentencing letters cannot be denied without a particularized showing that release of those records would cause significant harm," Haggerty wrote in the letter to U.S. District Judge Edwin M. Kosik, who will sentence Ciavarella Thursday on racketeering and other charges.
In a pre-trial conference last month, Kosik told attorneys in the case that he had received 147 letters in regard to Ciavarella, a former Luzerne County Juvenile Court judge found guilty of accepting payments from individuals with ties to two for-profit juvenile detention centers.
On Saturday, one of Ciavarella’s attorneys said his client had decided not to seek character letters on his behalf, fearing adverse publicity for the writers if the letters became public. The U.S. Attorney’s Office has solicited written victim-impact statements from former defendants in Ciavarella’s courtroom through its website.
Ciavarella is one of more than 30 government officials and contractors prosecuted in a federal corruption probe in Luzerne and Lackawanna counties since January 2009. Other judges in the U.S. Middle District of Pennsylvania have released similar letters in some of those cases.
I tend to strongly favor public access and transparency on nearly all sentencing matters, but I also fear that potentially important sentencing information may not always be included in the record if all sentencing materials are always subject to public disclosure. As this article notes, the defendant here apparently was dissuaded from seeking character letters based on fear of adverse publicity for letter-writers. Perhaps release of materials with some redactions can balance competing consideration in these sorts of cases.
Meanwhile, this new AP article provides in more information on this infamous case as the kids-for-cash judge's sentencing appraoches later this week. Here are the basics:
Ciavarella faces a maximum of 157 years in prison on charges that also include money laundering and conspiracy, but is more likely to get between 12½ years and 15½ years under federal sentencing guidelines, prosecutors have said.
Long-time readers may recall, as reported in this post, that an original plea deal calling for this defendant to serve just over 7 years in prison was rejected by the district judge.
Related posts from 2009:
- State judges plead guilty to sending juves to jail for moolah
- Federal sentencing fall-out from juve sentencing corruption
- District judge rejects plea deal offered to crooked state judges
Sunday, August 07, 2011
"The Hazy Science of Hot Weather and Violence"
The link between violence and hot weather is so intuitive that it’s embedded in our language: Hotheads lose tempers that flare, anger simmers and comes to a boil, and eventually we cool down. So what does science have to say? Do tempers truly soar with temperature?
The answer, appropriately enough for these triple-digit days, is hazy and hotly contested.
To be sure, extensive literature exists on hot weather and violence, stretching from poorly controlled regional studies in the late 19th and early 20th centuries — oh, those hot-blooded southerners! — to more sophisticated modern analyses. This doesn’t just apply to the United States, but countries like England and Wales and New Zealand. But whether weather is cause or coincidence is difficult to determine.
Perhaps the most detailed studies, led by psychologists Ellen Cohn and James Rotton of Florida State University, involved violent crime over a two-year period in Minneapolis, Minnesota. Cohn and Rotton classified assaults according to time of day, day of week, and month and temperature. They ultimately concluded that violence rose with temperature, but only to a point.
Around 80 degrees Fahrenheit, assault rates started to fall, a trend that dovetailed with a hypothetical explanation for heat-induced violence in which being uncomfortable provokes competing tendencies of both aggression and escape. At low to moderate levels of discomfort, people lash out, but at high levels they just want to flee.
But the results also fit with a sociological rather than psychological explanation. According to so-called Routine Activities Theory, many forms of violent crime are functions of social opportunity, and increase when more people spend more time outside. When it becomes so hot that people retreat inside, crime falls. Cohn and Rotton supported this explanation.
Cohn and Rotton’s interpretations of the numbers, however, were contested by Iowa State University psychologist Craig Anderson, who felt they hadn’t fully accounted for time-of-day effects. His own take on the data produced a linear relationship between heat and violence, with assault rates peaking at the highest temperatures.
Tuesday, August 02, 2011
"Graham on the Ground"
The title of this post is the headline of this interesting new piece by Professor Cara Drinan discussing various aspects of the legal aftermath in the wake of the Supreme Court's landmark Eighth Amendment ruling in Graham v. Florida. Here is the abstract:
In Graham v. Florida, the Supreme Court held that it is unconstitutional to sentence a non-homicide juvenile offender to life in prison without parole. While states need not guarantee release to these juvenile offenders, they cannot foreclose such an outcome at the sentencing phase. Scholars have identified several long-term ramifications of Graham, including its likely influence on juvenile sentencing practices and on retributive justice theory. What has yet to be examined are the thorny legal issues raised by Graham that judges and lawmakers need to address in the very short term. To whom does the Graham decision apply? What is the appropriate remedy for those inmates? What affirmative obligations does the Graham decision impose upon the states? These and other pressing questions are before judges and legislators today, and in this Article I endeavor to answer them.
In Part I, I briefly describe the Graham opinion and survey what scholars to date have identified as salient aspects of the decision. In Part II, I seek to provide a blueprint for lower courts and legislatures implementing the Graham decision. Specifically, I argue that: 1) Graham is retroactively applicable to all inmates who received a life-without-parole sentence for a non-homicide juvenile crime; 2) those inmates entitled to relief under Graham require effective representation at their resentencing hearings; 3) judges presiding over resentencing hearings should err in favor of rehabilitation over retribution to comport with the spirit of Graham; and 4) long-term legislative and executive action are necessary in order to make the promise of Graham a reality. Finally, in Part III, I situate Graham in the context of our nation’s ongoing criminal justice failings. While the sentence challenged in Graham ought to be viewed as a symptom of such failings, the Graham decision may offer a window of hope for reform on that same front.
Monday, August 01, 2011
"A Rational Post-Booker Proposal for Reform of Federal Sentencing Enhancements for Prior Convictions"
The title of this post is the title of this new piece available via SSRN from Caleb Mason and Scott Lesowitz. Here is the abstract:
In this article we propose a solution to one of the more vexing problems in current federal sentencing jurisprudence: applying the sentencing enhancements for one of the most commonly-prosecuted federal crimes – re-entry after deportation, in violation of 8 U.S.C. Section 1326. We argue that the current categorical approach to classifying crimes for purposes of applying the enhancements is unnecessary, creates absurd results, and contravenes the Sentencing Commission’s mandate to promulgate empirically-grounded real-offense guidelines. We urge a systematic classification of state crimes based on empirical surveys of state caselaw and charging practices, and a revised enhancement guideline that recognizes differences in relative severity. We give examples of the kind of surveys that would be required, and set out proposed guidelines revisions.
"Woman who sprayed breast milk at deputies sentenced"
The title of this post is the headline of this afternoon story from the Columbus Dispatch. Here are the details:
After generating a flurry of media attention and being fired from her teaching job, the woman who drunkenly sprayed her breast milk at deputy sheriffs will spend two years on probation after pleading guilty to two misdemeanors.
Stephanie Robinette, 30, appeared in Delaware Municipal Court this morning and was sentenced by Judge David Gormley for the misdemeanors, assault and obstruction of official business. She will also have to pay $200 in fines and serve 40 hours of community service. She pleaded guilty last month. Three other misdemeanor charges were dismissed.
The incident began with a domestic dispute between Robinette and her husband on June 25 at the Bridgewater Banquet and Conference Center on Sawmill Parkway in Delaware County.
That night, after fighting with her husband, Robinette locked herself in the car. When deputies arrived, she began yelling profanities and refused to get out. She then told them she is a breastfeeding mother, removed her right breast from her dress and began spraying deputies and the car with her breast milk.
Robinette was fired from her teaching job at Summit Academy on Columbus’ East Side less than a week later. In the report sent to state officials for review of her license, school officials cited the media attention and included reports published online from as far away as India and Canada.
“If there is a form of punishment associated with public shaming, I think Stephanie’s case would qualify,” said her attorney, Brad Koffel. Koffel added that Robinette has been sober — also part of her probation — and that she and her husband have filed for divorce. The Robinettes have a 9-month-old child....
In addition to the probation, community service and fines, Gormley ordered Robinette to attend anger management classes and abstain from alcohol. “I feel teachers are in a position of public trust and I really think you seriously violated that public trust in the way you behaved on June 25,” Gormley told Robinette. “Foul language, and obviously, the behavior that has become so infamous. Shameful.”
Just and effective punishment, dear readers? Does and should the fact that the defendant was publically shamed and lost her teaching job factor into the formal sentencing judgment here? Should the judge here have ordered the defendant to stop breast-feeding in order to reduce the risk of imprisonment? (I am just kidding with this last question.)
August 1, 2011 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (7) | TrackBack
Monday, July 25, 2011
"The factor of faith in crime reduction"
The title of this post is the headline of this recent op-ed in the Houston Chronicle by Byron Johnson, a Professor at Baylor University who is the author a notable new book titled "More God, Less Crime: Why Faith Matters and How it Could Matter More." (2011). Here are excerpts from the op-ed:
[U]nderstanding the nature of the relationship between religion and crime may provide much needed insights to help decision-makers and practitioners operate a more effective criminal justice system. For example, rigorous research can yield important data assessing the role of thousands of faith-motivated individuals, houses of worship and other faith-based groups interested in crime reduction and offender-rehabilitation programs. Faith-based approaches to mentoring at-risk youth, drug treatment, restorative justice, cognitive restructuring of offenders or spiritual transformation of prisoners already exist in most communities. Thus, understanding how religion might prevent crime, or help youth from bad neighborhoods to be resilient in spite of their surroundings, is an important and policy-relevant matter.
Research can help us not only understand how faith might matter, but how these faith-informed approaches can be modified and improved to have greater impact on common civic goals — like crime reduction and public safety — valued by all....
[My research has found that] active participation in a church plays a critical protective role and helps youth to be resilient to the negative influences of living in economically impoverished environments.... I recently completed the most exhaustive systematic review conducted to date of the relevant research literature on religion and crime. This review located 273 studies on religion and crime that were published between 1944 and 2010. Ninety percent of the studies (247 of 273) find increasing religiosity to be associated with decreases in various measures of crime and delinquency. Only two out of 273 studies report religion was associated with a harmful outcome....
Put simply, increasing religiosity tends to be associated with decreasing crime. The weight of this evidence is especially intriguing in light of the fact that religion continues to be overlooked by so many. For example, one will look in vain to find any references at all to religion in criminology and criminal justice textbooks. This is because many social scientists go out of their way to overlook or dismiss the role religion plays in crime reduction in spite of the evidence showing religion is an important protective factor. Stated differently, religion insulates youth from harmful outcomes like suicide or crime, and helps them to be resilient within communities of disadvantage. Even more compelling is the fact that most faith-based interventions tend to be volunteer-driven and consequently are cost-effective. In an age of evidence-based government and unprecedented economic struggles, it would seem to be prudent to give more thoughtful attention to the many possibilities that religion and faith-based approaches can bring to bear on matters of crime and justice.
Wednesday, July 20, 2011
NJ appeals court upholds lifetime sex offender registration based on buttocks horseplay by 14-year-olds
A helpful reader altered me to this notable sex offender registration news story coming from New Jersey, which is headlined "2 N.J. teens labeled sex offenders for life after 'horseplay' incident." Here are the basics:
Call it bullying or call it horseplay. Either way, a state appellate court panel says roughhousing with a sexual connotation by a pair of 14-year-old Somerset County boys was a crime that requires them to register as sex offenders for the rest of their lives.
In a decision handed down Monday, the three-judge panel acknowledged the severity of its decision, but said it was bound to uphold the law. "We are keenly aware that our decision may have profound lifelong ramifications for these two boys as well as others similarly situated," Judge Jose Fuentes wrote.
One of the boys, whose case went to trial, said he had sat on the faces of a pair of 12-year-old schoolmates with his bare buttocks in November 2008 "cause I thought it was funny and I was trying to get my friends to laugh," he told a family court judge.
But an act is considered criminal sexual contact if it is done for sexual gratification or to degrade or humiliate the victim, and punishable by lifetime registration — even for juveniles — under Megan’s Law, which requires a person convicted of a sex crime against a child to notify police of changes of address or employment.
The trial judge concluded the teenager intended to humiliate or degrade his victims and found him guilty of criminal sexual contact. The second teenager who was implicated pleaded guilty to criminal sexual contact, and received the same penalty.
The full appellate court opinion in this case is available at this link.
Quick circuit split on Tapia's impact for revocation of supervised release
I have been meaning to blog about an interesting First Circuit ruling earlier this month in US v. Molignaro, No. 10-1320 (1st Cir. July 6, 2011) (available here). As revealed by the introductory paragraph quoted below, the First Circuit in Molignaro (per retired Justice Souter sitting by designation) applied SCOTUS's recent ruling in Tapia to reverse a lengthened term of imprisonment intended to facilitate a defendant's rehabilitation upon revocation of his supervised release:
Acting under 18 U.S.C. § 3583(e), the district court revoked the order for supervised release and resentenced the defendant. Federal advisory sentencing guidelines recommended imprisonment of 3 to 9 months after such a violation, but the district court ordered 22 months (followed by further supervised release). The court imposed the longer prison sentence so that Molignaro would have ample time to take part in a course of sex therapy at a nearby federal prison (Devens) that could run for up to 18 months, and although the judge did not state the period he would have imposed in the absence of the treatment program, he did say that 9 months would have been too short in light of what he found to be Molignaro's choices to go where children were present and the risk of untoward behavior was great. Molignaro objected that setting the imprisonment term with the goal of providing therapy was error as a matter of law, and that in any case 22 months was unreasonably long. We hold that the resentencing court's objective of tailoring the length of imprisonment to provide adequate time for treatment was barred by statute, and we vacate the sentence and remand for resentencing.
I am finally now getting around to blogging about this interesting First Circuit ruling because yesterday a Fifth Circuit panel came out the other way on this issue in US v. Breland, No. 10-60610 (5th Cir. July 19, 2011) (available here). Breland, which discusses Tapia but not Molignaro, starts this way:
The question presented in this appeal is whether a district court may consider a defendant’s rehabilitative needs when revoking the defendant’s supervised release and requiring him to serve the remainder of his sentence in prison. The district court sentenced the defendant, William C. Breland Jr., to thirty-five months of imprisonment upon revocation of his supervised release. On appeal, Breland challenges the procedural reasonableness of that sentence, arguing that the district court imposed it for the sole purpose of qualifying him for the Bureau of Prison’s (“BOP”) 500-hour drug-treatment program. He also challenges the substantive reasonableness of the sentence. Because the plain language and operation of 18 U.S.C. § 3583(e) and (g), which governs post revocation sentencing, permits the consideration of rehabilitative needs, and because Breland’s sentence is not otherwise unreasonable, we affirm.
July 20, 2011 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0) | TrackBack
Tuesday, July 19, 2011
"No death penalty for 17-year-old accused of killing parents, partying"
The title of this post is the headline of this press report on the constitutional sentencing limits on the punishment that can be received by an already notorious teenage murder suspect. Here are the details of what is the latest high-profile Florida crime (largely because of how the defendant apparently "celebrated" killing his parents):
Because of his age, 17-year-old Tyler Hadley will not face the death penalty if he’s convicted in the brutal slaying of his parents, officials with the State Attorney’s Office confirmed Tuesday. If he's eventually convicted ... Hadley could be ordered to serve a maximum penalty of life in prison.
Hadley, the Port St. Lucie teen accused of posting an invitation to a party on Facebook, then killing his parents with a hammer, made his first appearance before a judge Tuesday morning.
Chief Assistant State Attorney Tom Bakkedahl said afterwards that the state's ultimate punishment can't be considered here because several years ago the U.S. Supreme Court determined "it would be cruel and unusual to subject minors to the death penalty."
"It’s simply off the table; it’s not a viable option," Bakkedahl said Tuesday. "Despite the fact that the case may otherwise in all respects warrant the death penalty, we are prohibited from seeking it as a result of him being approximately six-months short of his 18th birthday."...
Police accuse Hadley of killing his parents Blake and Mary Jo Hadley. Their bodies were found in their locked bedroom in the 300 block of Northeast Granduer Avenue on Sunday morning. Hadley was initially arrested as a juvenile, but Monday he was charged as an adult of two counts of 2nd-degree murder with a weapon and is being held on no bond at the St. Lucie County jail....
Bakkedahl, who was attending the Hadley autopsies at the Medical Examiner’s office in Fort Pierce, said state law requires the case be presented to a grand jury in order to seek first-degree murder charges.
Based on the criminal investigation conducted by Port St. Lucie police, Bakkedahl said evidence gathered supports charges of first-degree murder. "I think it’s going to be a clear first-degree murder case," he said. "The only difference between this and any other first-degree murder case is as a result of his age, he does not face the prospect of the death penalty."...
Early Sunday morning, Port St. Lucie police received an anonymous tip indicating a 17-year-old might have killed his parents and the bodies had been in the home during a party attended by as many as 60 people. Police went to the home about 4:20 a.m. Sunday. There police found a hammer between the bodies of Mary Jo Hadley, 47, and 54-year-old Blake Hadley. Tyler Hadley was arrested late Sunday....
"It was a merciless killing. It was brutal and the Facebook invitation — a party to have your friends and 40 to 60 people come over — I think speaks for itself," Port St. Lucie police Capt. Don Kryak said, standing at the scene Monday. "The blunt force trauma to the head and torso with a 22-inch framing hammer can effect a considerable amount of injury."
Police believe Tyler Hadley acted alone, but officials don't know a motive. The former St. Lucie West Centennial High School student made no incriminating statements.
Kryak said the Facebook party invitation was posted about 1:15 p.m. or 1:30 p.m. Saturday — before the homicides occurred. Investigators suspect Tyler Hadley's mother was killed first, and then his father, and that the slayings happened outside the master bedroom door of the single-story home in the 300 block of Northeast Granduer Avenue.
In addition to providing a high-profile example of the impact of the Supreme Court's Roper limit on the application of the death penalty, I can imagine this disturbing case having some indirect impact on post-Graham legislative and litigation efforts to prevent LWOP sentences for even juvenile killers.
Friday, July 15, 2011
"California's criminal law: So bad, it could get better"
The title of this post is the headline of this new piece in The Economist. Here are excerpts:
Three strikes has indeed, as advertised, removed some dangerous “career criminals” from the streets. But it has also condemned people to life for stealing a pair of socks. As these lifers age in prison, they not only mock justice but cost taxpayers ever more money. As for death sentences, it turns out that they exist more in theory than in practice. California does have the country’s largest death row, with 714 inmates. But it has executed only 13 people since 1978, whereas 1,242 have been executed in America as a whole. On California’s death row, 78 inmates have instead died of old age, disease or suicide. The process of appeal typically takes decades.
It is also tough on taxpayers. California’s death row has cost more than $4 billion since 1978, according to a new study by a federal appeals judge who has also been a state prosecutor in death-penalty cases. And it will cost more in years to come. This makes no sense at a time when California is cutting funding for its court system to balance ever tighter budgets.
Voters still favour the death penalty in principle, polls say. But growing numbers of credible critics are turning against it. These include Don Heller, the man who wrote the 1978 ballot measure reintroducing capital punishment, and Jeanne Woodford, once an administrator of death row. Both now want to repeal the penalty and convert death sentences to life terms without parole. A law to this effect is in the legislature, and could be on the ballot next year.
A similar trend is working against three strikes. Prosecutors, who used to be its most ardent supporters, are increasingly using their discretion not to invoke the law for minor offences. Some are openly calling for reform. A new ballot measure to repeal or relax the law may be drafted this summer. A previous attempt, in 2004, failed. But a recent Field poll found that 74% of voters now agree that three strikes must be changed — not least because of the chaos it causes in the prisons.
"12-Year-Old Sentenced for Cyberstalking Classmate"
The title of this post is the headline of this ABC News piece reporting on a case showing that some kids today are now getting their cyber-criminal careers started very early. Here is the start of the piece:
A 12-year-old Washington girl was sentenced on Wednesday to probation and community service for a cyberstalking incident in which she and another 11-year-old girl doctored a classmate's Facebook account with explicit photos and solicitations for sex.
But the mother of the victim, also 12, said she has "mixed feelings" about the sentencing of the girls who hacked her daughter's Facebook page, and she isn't satisfied with the judge's ruling. "We wrote a letter to the judge and we requested that she have no access to social media for the full term of her probation. The judge felt that it would be fine for her to be on with parental supervision," said Tara Cote, of Issaquah, Wash.
The 12-year-old, who pleaded guilty and whose name has not been released, was charged with Cyberstalking and Computer Trespass First Degree. She was sentenced to six months of probation and 20 hours of community service, along with mandatory adult supervision of all computer usage, according to the King County Prosecuting Attorney's Office.
Cote said she wants the tween to have cyber bullying-specific therapy. "Both girls went online and used social media to do damage and used it as a weapon? Regular therapy will not tell you how to not abuse the Internet," said Cote.
In my view, these kind of modern technology crimes call out for a kind of modern technology shaming sanction: perhaps judges can and should be able to require defendants in these kinds of cases (at least when they are adults) to have some kind of scarlet mark on their social media pages so that others know they do not play nice with technology.
Thursday, July 14, 2011
Fascinating (and Posnerian classic) opinion on diminished capacity, child porn, and sentencing theory
Judge Posner provides today's must-read circuit opinion in US v. Garthus, No. 10-3097 (7th Cir. July 14, 2011) (available here). Judge Posner's opinion for the Seventh Circuit in Garthus packs in so much of interest in a tight 13 pages, I have a hard time deciding which part to exceprt. So, here is just the very start of the opinion along with just one of many interesting passages (with cites removed) to whet everyone's appetite for the whole opinion:
The defendant pleaded guilty to federal crimes of transporting, receiving, and possessing child pornography and was sentenced to 360 months in prison. The guidelines sentencing range was 360 months to life; the statutory minimum sentence was 180 months; he was 44 years old when sentenced. His appeal challenges his sentence on several grounds, of which the one most emphasized by defense counsel is that the district court improperly failed to consider her argument that the defendant had had “diminished capacity” to avoid committing the crimes, a ground recognized by the sentencing guidelines as a possible justification for a lower sentence....
Why diminished capacity in this sense (or senses) should be a mitigating factor in sentencing is obscure. The diminution makes a defendant more likely to repeat his crime when he is released from prison. That is especially so when the crime involves compulsive behavior, such as behavior driven by sexual desire. Such behavior requires active resistance by the person tempted to engage in it, if it is to be avoided; and diminished capacity weakens the ability to resist. One of the defendant’s experts opined that the defendant’s ability to resist could be strengthened substantially with medication and therapy. But both defense experts believed, and defense counsel argued, that he wouldn’t get proper treatment in prison. That is very damaging to the argument that he won’t recidivate, since by virtue of the statutory minimum he will spend many years in prison and when released may be unable to resist his criminal impulses because his condition will not have been treated effectively in prison.
From a “just deserts” standpoint, diminished capacity argues for a lighter sentence, but from the standpoint of preventing recidivism it argues for a heavier one. The heavier sentence may not deter a criminal from repeating his crime when he is released (that is implied by saying he has diminished capacity), but it will reduce his lifetime criminal activity by incapacitating him for a longer time than if he received a lighter sentence.
How to choose? The sentencing guidelines do not embody a coherent penal philosophy. “The [Sentencing] Commission’s conclusion can be summarized thus: since people disagree over the aims of sentencing, it is best to have no rationale at all.” Andrew von Hirsch, “Federal Sentencing Guidelines: Do They Provide Principled Guidance?,” 27 Am. Crim. L. Rev. 367, 371 (1989). In the case of diminished capacity the guidelines have embraced a just-deserts theory; but why it has done so — why it has in this instance elevated just-deserts considerations over the interest in preventing recidivism — is not explained. In any event, under the Booker regime a sentencing judge can adopt his own penal philosophy. And so he can disregard the guidelines’ classification of diminished capacity as a mitigating factor, regard it as an aggravating factor, or regard it as a wash.
July 14, 2011 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (14) | TrackBack
Wednesday, July 13, 2011
"Blaine hacker who terrorized neighbors gets 18 years in federal prison"
The title of this post is the headline of this interesting local article from Minnesota reporting on an interesting federal sentencing proceeding for an (interesting?) cyber-criminal who ultimately received an above-guideline sentence. Here are the details:
Federal prison sentences aren't computed this way, but the 18 years Blaine hacker Barry Ardolf was sentenced to Tuesday works out to one year for every 39.3 days of hell he put his victims through.
Matt Kostolnik told a judge that the 707 days his family spent living next to Ardolf were days of dread and fear. Ardolf had waged a cybercampaign of terror against them, all because they called the cops after the man planted what they called a "wet kiss" on their young son's lips. "I felt like me and my family were under attack. I went numb that day," Kostolnik told U.S. District Judge Donovan Frank of the day of the kissing incident, which occurred the day after they moved into a house on a cul-de-sac next to Ardolf. ...
Ardolf, 46, then a technician at Medtronic, was a "certified ethical hacker," according to the bumper stickler above his bed, who used his skills to hack into the Kostolnik's wireless router. He then opened email accounts in Kostolnik's name to send lewd and threatening messages to several people in the Kostolniks' lives. Some emails threatened the vice president and other elected officials, while other messages, to Kostolnik's co-workers and bosses at the downtown Minneapolis law firm where he worked as a lawyer, included child pornography....
The sentence was less than the 24-year, five-month term that Assistant U.S. Attorney Timothy Rank had asked for. The seasoned prosecutor, who has stared down murderers, told Frank that Ardolf's capacity for "ruthless cruelty" ranked him among the most dangerous people he'd ever prosecuted.
Defense lawyer Kevin O'Brien had argued that while Ardolf's conduct was bad, the man himself wasn't. A sentence of no more than 6-1/2 years was appropriate, he argued. O'Brien is Ardolf's court-appointed "stand-by" counsel; the defendant fired his second attorney this year and declared that he wanted to represent himself....
Ardolf was charged in June 2010, agreed to a plea deal, rejected it, was indicted on more charges, went to trial and then halted the trial after a couple of days to plead guilty. Then, on the eve of his sentencing in March, he told Frank he wanted to withdraw his guilty plea and get a "do-over" trial. The judge rejected his arguments, setting the stage for Tuesday's proceedings....
Dressed in orange jail antimicrobial clothing and sometimes wearing two pairs of glasses simultaneously, Ardolf, a widower, began his comments by apologizing to the Kostolniks, his own three children and his family, some of whom were in the courtroom. But he spent most of his time talking about himself, a trait that had prompted Rank to complain at a hearing in May that Ardolf was a narcissist unable to show true remorse or feeling for his victims....
He reeled off a list of recent prison sentences he'd read about in the paper -- including the 10-year sentence meted out to former auto mogul Denny Hecker this year -- and said that relatively speaking, his crime wasn't as bad as those of some people sent to prison for terms less than what he was facing. "I didn't kill anyone," he said.
Even O'Brien stretched to explain Ardolf's behavior, saying that when he first met him, he found him to be "too arrogant, not willing to listen. The question now is, What is a reasonable sentence for such unreasonable acts?" O'Brien asked. He acknowledged that Ardolf has "done some bizarre, hurtful acts."
Ardolf had pleaded guilty to unauthorized access to a protected computer, two counts of aggravated identity theft, possession and transmission of child pornography and making threats to the vice president. Frank said he'd gotten a handful of letters on Ardolf's behalf; a common theme: the man didn't seem the same after his wife died suddenly two days before her 38th birthday....
Frank noted that when Ardolf's points were computed, the guidelines called for a maximum of 15 years and eight months. But the judge said a harsher punishment -- 216 months, or 18 years -- was called for. "Anything any less than that would not serve the purposes of justice," he told Ardolf, who stood before the judge, hands clasped in front of him.
Michigan Supreme Court rules homelessness not a defense for sex offender failing to register
As detailed this effective local article, "Sex offenders must register and tell law enforcement where they can be found, even if they are homeless, the Michigan Supreme Court ruled Monday." Here is more:
The court overturned a lower court ruling that a homeless sex offender shouldn't be punished for not registering an address or giving his whereabouts to law enforcement. Its four Republican members signed the majority opinion, sending the case back to Ingham Circuit Court.
"The Legislature intended SORA (Sex Offender Registration Act) to be a comprehensive system that requires all sex offenders to register, whether homeless or otherwise," Chief Justice Robert Young Jr. wrote in the opinion. "An offender's homelessness in no way prevents that offender from physically entering a law enforcement agency" and reporting where he's living.
The three Democratic justices dissented, saying the majority's opinion "defies" common sense. "Defendant had no 'residence' as that term is used in SORA. He had no habitual place at which to sleep. He had no place at which he kept his personal effects. Nor did he have a regular place of lodging," Justice Marilyn Kelly wrote for the minority. "A park bench, highway underpass or steam grate may qualify as a place where a homeless individual sleeps, but they hardly qualify as a 'regular place of lodging' under the statute."...
In Monday's opinion, the majority said the definition of "residence" merely contemplates a "place," and that Dowdy had a legal duty under the law to report that place to police. The minority said the law required him to report his "residence" or "domicile," which it said he didn't have.
Legislation requiring homeless sex offenders to notify police when they change where they are staying passed the Michigan Senate last year but failed to pass the House.
The full Michigan Supreme Court opinion in Michigan v. Dowdy is available at this link.
Sunday, July 10, 2011
Is it sound, just and wise to often question the competency of juvenile offenders?
The question in the title of this post is prompted by this interesting article in the New York Times headlined "Legal Tactic Raises Issues for Juveniles." Here are excerpts:
Over the past 18 months, there has been a tenfold increase in the number of cases in San Francisco’s juvenile courts in which defense lawyers question whether minors are able to understand the legal process or assist in their own defense and therefore should not be subject to legal proceedings.
The surge in competency cases has created a range of new problems for San Francisco’s juvenile justice system. When lawyers express doubts about their clients’ competency, the court suspends proceedings while the minors are evaluated. Meanwhile they are often locked up for months or released without adequate supervision or services....
The drastic increase in competency cases is attributable, in part, to three precedent-setting cases tried in Sacramento between 2005 and 2008. In the most important of those cases — known as Timothy J — a Sacramento public defender, Arthur Bowie, successfully argued that children could be found incompetent based merely on their level of developmental maturity. The finding allowed the question of competency to come into play even in the absence of mental health problems or developmental disabilities.
“Why do we say a child can’t have a drink at 10 because he’s not thinking it through, but he can walk into a courtroom and understand what’s going on?” Mr. Bowie said in an interview....
Some argue that the Timothy J case has made it easier for defense lawyers to get minors released and cases dismissed. “I know people are using it as a litigation strategy, and that’s not a good thing,” said George Beckwith, a private lawyer who defends minors in San Francisco. “I don’t believe it’s rampant but I do believe it exists.”...
Patrick Mahoney, a San Francisco Juvenile Court judge, said competency had become a national issue. “What is happening is not unique to San Francisco,” he said. “This issue is being raised in every jurisdiction where I’ve had the opportunity to speak with judges.”...
Mr. Beckwith handled a case last year that involved a 12-year-old boy who was arrested for robbery twice in seven months. Both times the boy was released because of incompetence. Despite a court-ordered treatment plan, Mr. Beckwith said, most of the remediation services never arrived. When the boy was arrested a third time last December, the judge placed him in juvenile hall, where he has been for more than six months.
After seeing that the boy had not received adequate counseling while incarcerated, Mr. Beckwith said he would never question competency again. “I don’t care if the client is standing there blubbering, because they lock them up, proceedings are suspended, and they don’t get services,” he said. “You fight like hell to get your kid into some kind of a program but for the average kid it’s not going to happen.”
Saturday, July 09, 2011
Why the Second Amendment is not (and should never be?) "part of normal constitutional law"
Earlier this week, the Seventh Circuit issued a lengthy and detailed ruling in Ezell v. Chicago (available here), which issued a preliminary injunction against Chicago gun range ban based on the Second Amendment. The Ezell ruling is both interesting and intricate; in this extended new post over at The Volokh Conspiracy, Second Amendment scholar and fan David Kopel astutely explains how and why "Ezell v. Chicago is a tremendously important case for Second Amendment doctrine."
I share Kopel's view about the importance of the Ezell opinion, and I recommend highly his summary and assessment of Ezell in his astute post. However, as evidenced by the title of my post here, I want to take issue with a key assertion Kopel makes at the start of the (otherwise astute) concluding paragraph of his post. Kopel finishes with these summary observation about what Ezell tells us:
In short, the Second Amendment is part of normal constitutional law. The standard of review is not the absolutist “What part of ‘shall not be infringed’ don’t you understand?’” Nor is the standard “reasonableness” as a euphemism for “rational basis so long as all guns are not banned”; nor the weak “undue burden” standard that was invented for one particular unenumerated right which is an extreme outlier in the weakness of its basis in history, tradition, and other sources for unenumerated rights. Intermediate scrutiny does apply sometimes, as with the First Amendment, and, also as with the First Amendment, stricter scrutiny applies at other times. As with much of the rest of 21st century constitutional law, the interpretive methodology includes both originalism and a practical analysis which some persons would call “living constitutionalism.”
The problem I have is with the claim that Ezell demostratrates that the Second Amendment is "part of normal constitutional law," principally because Ezell distinguishes the Seventh Circuit's approval in Skoein of the federal crime prohibiting certain misdemeanants from possessing guns (basics here) by emphasizing that only "law-abiding, responsible citizens" get full Second Amendment protection. If Second Amendment rights and jurisprudence truly depends and pivots on who is deemed a "law-abiding, responsible citizen," then the Second Amendment is not part of normal constitutional law because I know of no other constitutional right that only protects "law-abiding, responsible citizens."
Of course, a citizen's constitutional rights can and often are diminished or extinguished as a result of conviction and sentencing for a crime. Incarcerated prisoners, in addition to obviously losing many liberty rights, also generally have no Fourth Amendment rights and have very limited First Amendment rights. Similarly, duly imposed conditions of probation and/or parole that are part of a formal criminal sentence can lawfully result in restrictions on otherwise constitutional activities and liberties.
However, as I have explained in some prior posts, I am not aware of any other fundamental rights expressly protected by the Bill of Rights which are forever lost or forfeited whenever a person has ever once previously broken the law or been less than "responsible" in their behavior. Indeed, I think we would be deeply troubled by a constitutional jurisprudence that held that once a citizen was ever convicted of any crime, even just a misdemeanor (e.g., speeding, littering), then that person never again has any First Amendment right to free speech or to attend church or any Fifth Amendment right to prevent the taking of their property or any Sixth Amendment to confront witnesses or to counsel in a criminal trial.
In posts in the wake of Heller, I had predicted and feared that Second Amendment doctrine would start distinguishing between good "law-abiding, responsible citizens" people who get protected by this fundamental constitutional right and bad "other citizens" who get little or no constitutional protection. The important Ezell opinion suggests the doctrine is developing in just this way, and that reality leads me to balk when Kopel asserts that "the Second Amendment is part of normal constitutional law."
Or, to cast my concerns in a different light, I suggest we all should be very concerned if and when "normal constitutional law" starts to embrace and enforce significant distinctions between good "law-abiding, responsible citizens" people who get protected by constitutional rights and bad "other citizens" who get little or no constitutional protection. I genuinely fear that this kind of "normal" constitutional doctrine, which is now emerging in the Second Amendment setting, very well could start a path toward the significant formal and/or functional reduction of many fundamental constitutional rights and liberties.
A few related Second Amendment posts:
- Can dismissed domestic violence complaint justify revoking gun permit?
- Split en banc Seventh Circuit in Skoien upholds categorical exclusion of DV misdemeanant from Second Amendment
- Skoien and the many challenges of Second Amendment jurisprudence
- Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession
- Assailing the unjustified Second Amendment limits in Heller
- "The Standardless Second Amendment"
- Fourth Circuit orders Second Amendment hearing to assess constitutionality of § 922(g)(9)
Friday, July 08, 2011
Ninth Circuit puzzling over whether Tucson shooter Jared Loughner can be forcibly medicated
The new piece posted at the WSJ Law Blog, headlined "Government Still Not Cleared to Forcibly Medicate Jared Loughner," provides a good account of the on-going legal debate over the treatment of the Tucson shooter. Here are excerpts:
We thought it was settled that prison officials could forcibly medicate Tucson gunman Jared Loughner, who is accused of shooting Congresswoman Gabrielle Giffords and 18 others earlier this year. A federal judge last month upheld an earlier decision by prison officials to force Loughner to take anti-psychotic drugs in an effort to try to render him mentally fit to stand trial for the shootings.
But the 9th Circuit late last week halted the forced medication, and yesterday a three-judge panel of the court expressed skepticism that prison officials were legally entitled to administer drugs involuntarily without first getting court clearance, WSJ reports.
The battle over medicating Loughner, who has been diagnosed as a schizophrenic, will be a key factor in determining whether he ever stands trial. At yesterday’s 9th Circuit hearing, government lawyer Christina Cabanillis said that under a Supreme Court decision, federal prison officials can make a medication decision on their own when they determine that someone in their custody is a danger to himself or others, WSJ reports.
But 9th Circuit judges drew a distinction between a convicted inmate, who was the subject of the Supreme Court decision, and a pretrial detainee, such as Loughner, who has the presumption of innocence.
“Why should someone presumptively innocent not be treated with greater personal deference” than an inmate, asked Judge Alex Kozinski, chief judge of the 9th Circuit....
Whether a person is an inmate or a pre-trial detainee, Cabanillis countered, “when you are dangerous in a prison setting, you are dangerous.”
The 9th Circuit is expected to rule soon.
Thursday, July 07, 2011
Willie Nelson sweet plea deal for pot possession goes up in smoke
This New York Times piece, headlined "Case of Willie Nelson Pot Bust Isn’t Extinguished Yet," reports on the latest notable turn of events in a high-profile pot possession case. Here are the details:
The seemingly routine occurrence of Willie Nelson’s being found in possession of marijuana has stoked a small conflagration in a Texas county where a judge says she will not permit what she sees as the lenient punishment of this singer by an overly deferential prosecutor.
Judge Becky Dean-Walker of Hudspeth County said on Tuesday morning that she would not accept a mailed-in plea agreement for Mr. Nelson that stemmed from a 2010 drug arrest there and that she believed that the county attorney, Kit Bramblett, was giving the singer preferential treatment because he is famous.
“He’s supposed to file the charge he feels is appropriate,” Judge Dean-Walker said of Mr. Bramblett in a telephone interview. “Not what he feels he should do for his favorite singer. It is up to the judge to agree or not.” Judge Dean-Walker added, “If you’re not going to do it for the guy in the corner, why do it for a celebrity?”
Mr. Nelson was arrested at a border stop in Sierra Blanca, Tex., on Nov. 26 when a Border Patrol agent there smelled marijuana on the musician’s tour bus. Though agents said they had found about six ounces of marijuana on the bus, Mr. Bramblett later said that weight included containers and paraphernalia, and that the total amount of the drug was about three ounces.
The case drew headlines in March when Mr. Bramblett said Mr. Nelson could plead guilty to a misdemeanor charge if he paid a small fine and sang “Blue Eyes Crying in the Rain” in court. Judge Dean-Walker quickly responded that she would not accept such an arrangement.
In June Mr. Bramblett said Mr. Nelson had pleaded no contest to a misdemeanor charge of possession of drug paraphernalia and would pay a $500 fine and about $280 in court costs. But on Friday Reuters reported that the judge would not accept this deal, either.
Judge Dean-Walker said on Tuesday that Mr. Bramblett previously asked to have Mr. Nelson’s charge reduced to a Class C misdemeanor and that she had refused. She added that Mr. Bramblett “has made a habit of speaking with the press before anything has been resolved.”...
Judge Dean-Walker said she was not concerned that the disagreement over Mr. Nelson’s plea was denying the singer his due process. “At no point do I have to let him off,” the judge said. “If Willie Nelson gets off with nothing, I’m not going to be part of it.”
Wednesday, July 06, 2011
Interesting split Eighth Circuit ruling on uncounseled prior convictions used to enhance sentence
The Eighth Circuit has a very interesting ruling today in US v. Cavanaugh, No. 10-1154 (8th Cir. July 6, 2011) (available here), concerning both the Sixth Amendment right to counsel and sentencing enhancements based on priro convictions. Here is the start of the majority opinion (Per Judge Melloy):
Roman Cavanaugh, Jr., was charged for the offense of domestic assault by a habitual offender, 18 U.S.C. § 117. As elements of the offense, the government must prove Cavanaugh received "a final conviction on at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings" for certain abuse offenses. Id. § 117(a). Below, the district court dismissed the indictment because, although Cavanaugh had received prior misdemeanor abuse convictions in tribal court on three separate occasions, Cavanaugh had not received the benefit of appointed counsel in the proceedings that resulted in the convictions.
The issues presented in this appeal are whether the Fifth or Sixth Amendments to the United States Constitution preclude the use of these prior tribal-court misdemeanor convictions as predicate convictions to establish the habitual-offender elements of § 117. Cavanaugh's prior convictions resulted in actual incarceration that, pursuant to Gideon v. Wainwright, 372 U.S. 335 (1963), and Scott v. Illinois, 440 U.S. 367 (1979), would have been unconstitutional in violation of the Sixth Amendment right to appointed counsel if the convictions had originated in a state or federal court. The district court, recognizing that the Sixth Amendment imposes no duty on Indian tribes to provide counsel for indigent defendants, noted that the prior convictions were valid at their inception and that the prior terms of incarceration were not in violation of the United States Constitution, tribal law, or the Indian Civil Rights Act, 25 U.S.C. § 1302. The court, nevertheless, held that the uncounseled convictions were infirm for the purpose of proving the habitual-offender, predicate-conviction elements of the § 117 offense in these subsequent federal court proceedings.
The government appeals, and we reverse. In doing so, we note an apparent inconsistency in several cases dealing with the use of arguably infirm prior judgments to establish guilt, trigger a sentencing enhancement, or determine a sentence for a subsequent offense. Ultimately, however, we are persuaded in this case that the predicate convictions, valid at their inception, and not alleged to be otherwise unreliable, may be used to prove the elements of § 117.
And here is the start of Judge Bye's dissent:
I agree with my panel colleagues' observation as to the Supreme Court's jurisprudence failing to provide clear direction in determining whether the Sixth Amendment precludes a federal court from using an uncounseled tribal court misdemeanor conviction to prove the elements of a subsequent federal offense. The majority's opinion exhaustively covers the subject matter and aptly describes the tension in the decisions which we must consider. I can also agree the lack of clarity means reasonable decision-makers are likely to differ on the conclusions they reach with respect to allowing or prohibiting such use of an uncounseled tribal court conviction. I disagree with the conclusion reached by the majority, however, and therefore respectfully dissent.