Thursday, September 08, 2011

Eleventh Circuit upholds LWOP for 17-year-old murderer who got pre-Roper death sentence

As detailed in this AP report, "federal appeals court on Wednesday held that juveniles convicted of murder can be sentenced to life in prison without parole."  Here are more of the details of the ruling:

The decision came in the case against Kenneth Loggins, who was convicted in Alabama of killing a hitchhiker in 1994 and originally sentenced to die. He was 17 at the time of the killing, so his punishment was reduced to life without parole because the Supreme Court banned such executions in 2005.

His attorneys had urged the three-judge panel to broaden a 2010 Supreme Court by including murders as an offense that can't carry a life sentence.  That 5-4 ruling held that juveniles cannot be sentenced to life in prison without parole if they haven't killed anyone, and ordered the courts to allow them a "meaningful opportunity to obtain release."...

The decision, written by Circuit Judge Ed Carnes, said "there's nothing in law or logic" to support the argument that a state shouldn't be allowed to impose the next most severe punishment if a death penalty sentence is banned.   The 11th Circuit has jurisdiction over federal cases in Georgia, Alabama and Florida, but lawyers in other areas will likely use the opinion to back up their own arguments.

Carnes had been the head of Alabama's capital punishment unit before he joined the court in 1992. He also wrote that the state shouldn't be blocked from imposing the prison sentence because it "lacked the clairvoyance to know that the Supreme Court would do an about-face and rule out death sentences for seventeen-year-old murderers."

In the decision, he said only a few jurisdictions have repealed laws permitting life without parole sentences for homicides committed by juveniles, and that the national consensus seems to be in favor of keeping those laws on the books.  "The long-term national trend is not away from life without parole sentences for homicides committed by juveniles but toward them," he said.

The ruling comes in a case involving the gruesome murder of Vickie Deblieux, who was picked up by Loggins and three other teens and taken to a secluded rural area as she was traveling to her mother's home in Louisiana.   One of the men hit Deblieux in the head with a beer bottle and then tackled her when she tried to run away, and all four savagely kicked her, the court said. When they realized she was still alive after the vicious beating, Loggins stood on her throat until she died, the ruling said. Loggins and two others later mutilated the body by cutting off her fingers and thumbs and removing part of a lung. They were arrested after one of the teens was reported to have been showing one of the victim's severed fingers to friends.

The three others -- who were 19, 17 and 16 at the time of the killing -- were also convicted of the slaying and sentenced to either death or life in prison.

The unanimous panel opinion in Loggins v. Thomas, No. 09-13267 (11th Cir. Sept. 7, 2011) (available here), runs 61 pages and effectively covers lots of post-Roper and post-Graham ground.  

I suspect the Supreme Court will eventually take up the issue of LWOP sentences for very young murderers.  But, for many reasons, the case of a 17-year-old murderer involved in a brutal thrill kill is surely not the kind of case that advocates against juve LWOP should want to be getting a lot of continued attention.

September 8, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Tuesday, September 06, 2011

"OSU book thief sentenced to probation and restitution"

Because this new piece from the Columbus Dispatch, which has the same headline as this post, strikes very "close to home," I am not going to comment on the substance of this notable story of crime and punishment.  But, especially because I am pretty sure I never met the now-sentenced former-OSU-law student, I am interested in reader reactions:

A former Ohio State University student avoided prison today but likely has forfeited his future as a lawyer for stealing books from the Moritz College of Law.

In a deal that allowed him to escape jail time, Christopher B. Valdes, 24, formerly of the University District but now living with his mother in Florida, was placed on five years of probation and ordered to pay $34,619.88 in restitution for books he sold online.  As of this morning, Valdes has paid back $19,450.

Valdes also agreed that he “will not have or pursue employment or education in the field of law,” according to the details of his guilty plea in Franklin County Common Pleas Court.

Assistant Prosecutor John Litle said the ban on law school and practice is in place only for the five years of probation.  But Valdes would have to pass character and fitness requirements to become a lawyer.  “As a practical matter ... it’s unlikely that he can do that” because of the felony conviction, Litle said.

Valdes had been indicted on a fourth-degree felony count of theft that could have landed him in prison for up to 18 months.  He pleaded guilty in June to a lesser fifth-degree felony punishable by up to a year in prison.

Valdes, who is no longer a student at Ohio State, was accused by campus police of stealing more than 200 books between November 2009 and last October after advertising them for sale online.  Officers learned of the thefts in August 2010, when the university received an e-mail from a Brazilian lawyer who had bought a volume online and found a crossed-out OSU ink stamp on its inside front cover, according to court documents.

A check confirmed that the title had vanished from the shelves.  Valdes was arrested after police set up a sting involving a hidden camera and a marked book.

September 6, 2011 in Collateral consequences, Criminal Sentences Alternatives, New USSC crack guidelines and report, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (2) | TrackBack

"Nation's Jails Struggle With Mentally Ill Prisoners"

The title of this post is the headline of this recent NPR "cover story" story from All Things Considered, which get set-up on the NPR website this way:

Three hundred and fifty thousand: That's a conservative estimate for the number of offenders with mental illness confined in America's prisons and jails.

More Americans receive mental health treatment in prisons and jails than in hospitals or treatment centers.  In fact, the three largest inpatient psychiatric facilities in the country are jails: Los Angeles County Jail, Rikers Island Jail in New York City and Cook County Jail in Illinois.

"We have a criminal justice system which has a very clear purpose: You get arrested.  We want justice.  We try you, and justice hopefully prevails.  It was never built to handle people that were very, very ill, at least with mental illness," Judge Steve Leifman tells Laura Sullivan, guest host of weekends on All Things Considered.

September 6, 2011 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (7) | TrackBack

Friday, September 02, 2011

"Delinquent by Reason of Indigency"

The title of this post is the title of this interesting new piece by Professor Tamar Birckhead which is now available via SSRN. Here is the abstract:

This Essay, written for the 12th Annual Access to Equal Justice Colloquium, introduces the concept of needs-based delinquency, a theory that challenges basic presuppositions about the method by which the United States juvenile justice system determines whether a child is delinquent.  It argues that at each stage of the process -- from intake through adjudication to disposition and probation -- the court gives as much or more weight to the perceived "needs" of the child and her family than to the quality of the evidence against her or the ability of the state to prove its case.  Typical features of the juvenile code, including the procedures for intake and diversion and the use of bench rather than jury trials, combine to shift the system's emphasis from an evaluation of a child's criminal responsibility to an assessment of a family's social service needs.  The standard of proof, therefore, is determined in large part by the socioeconomic class of the accused rather than the nature of the forum, an orientation that lowers the standard for indigent juveniles while heightening it for affluent youth.  The result is that children from low-income homes do not have to be as "guilty" as those from families of means in order to be adjudicated delinquent, thereby widening the net of court intervention for poor children.

The Essay illustrates the variety of ways in which modern juvenile code provisions and delinquency court practice privilege consideration of juveniles’ needs over the weight of the evidence against them.  It argues that the juvenile court’s traditional focus on the needs of destitute youth continues to be reflected in the system's practices and procedures, despite the court’s shift in dispositional philosophy from rehabilitation to youth accountability and public safety.  It examines the structural and institutional causes of this development, beginning with the most common points of entry into the juvenile court system -- public schools, local businesses, and neighborhood police presence.  The Essay suggests that the juvenile court's continued emphasis on families’ needs when adjudicating delinquency has a disproportionate effect on low-income children, resulting in high rates of recidivism and perpetuating negative stereotypes based on class.  It offers strategies for confronting and reversing this trend, including data collection that records the income-level of juveniles’ parents and raising awareness of needs-based delinquency among police, prosecutors, judges, and agency personnel.  It challenges the view that in tight budgetary times, juvenile court involvement is the only way for poor children to access services, and concludes by proposing a service delivery model that cuts across public child welfare boundaries, with the goal of increasing fairness for all youth in the juvenile justice system.

September 2, 2011 in Offender Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, September 01, 2011

Dude, ... it is only worshipping Mother Mary, not mary jane, that gets protected by RFRA

The sad effort at stoner talk in the title of this post is my weak attempt to make humor in response to today's interesting decision by the Ninth Circuit in US v. Lafley, No. 10-30132 (Sept. 1, 2011) (available here), which gets started this way:

This appeal presents the question whether a convicted methamphetamine dealer is entitled, under the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb-2000bb-4, to use marijuana during his period of supervised release.  In the circumstances presented by this case, the district court declined to suspend the mandatory supervised release condition prohibiting such use.  We affirm.

And in case anyone is interest, the religious group to which the defendant in Lafley claimed to belong is Montana Cannabis Ministries.  Unfortunately, this ministry does not appear to have a website to which I can link, but I did find this notable Wikipedia entry on THC Ministry which starts this way:

The THC Ministry, founded by Roger Christie from the Religion of Jesus Church, is a religion which considers cannabis to be a sacrament.  Members base their practices on what they see as an eclectic mixture of ancient wisdom, modern science, and the enlightening and healing properties of cannabis sacrament.  Its mission includes "liberating the cannabis hemp plant and the minds of those who do and of those who do not revere it," and is actively involved in the legal and social discussions surrounding cannabis use in society.

September 1, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Wednesday, August 31, 2011

Are Ventura County prosecutors involved in a kind of "kids for cash" scheme by trying more juves as adults?

The provocative question in the title of this post is prompted by this recent report on juvenile case processing in California issued by the Center on Juvenile and Criminal Justice. (Hat tip: The Crime Report.)   This local article, headlined "Is Ventura Trying More Kids As Adults Than Any Other County….for the Money?," provides this summary of the report and its disturbing implications:

This week the Center on Juvenile and Criminal Justice released a brand new report that shows, surprisingly, that Ventura and Orange counties are trying way, WAY more kids as adults than is LA County, particularly kids 15 and under.  However, the real surprise came when the study’s researchers concluded that the impetus behind those outsized numbers may have more to do with fiscal incentives than public safety....

In trying to figure out why certain counties filed so much more than others, the researchers noticed something interesting: a possible financial incentive.  As noted earlier, counties like Ventura and Orange not only direct-filed at a much higher rate than their neighbors like LA and San Diego County, they direct-filed on the youngest kids who qualified — 12, 13 and 14-year-olds — at an even higher rate.

But here’s the intriguing little secret: if you try a 13-year-old as a juvenile, he or she will be sentenced to a county juvenile facility — meaning the county will pay the kid’s hotel bills.  However, if those same kids are tried and sentenced as adults, they are sent to a state youth facility — and the state taxpayers, not the county, picks up the tab — at a rate of $200,000 per year per kid.

The researchers began to conclude that the DA’s in high filing counties were using the post Prop 21 mechanism simply to pass on the cost of locking up kids to the state — regardless of whether trying the kid as an adult was really warranted.   In other words, to hell with the health and well being of the kid or the community.  It’s all about the money.

Here, from the report itself, are some of the researchers' main findings:

• California counties vary widely in prosecutorial use of direct adult criminal court filing.

• During the 2003-09 period, California prosecutors direct-filed 4,045 youth in adult criminal court, with rates per qualifying felony offense in major counties ranging from 1.5 in San Francisco, 6.2 in Alameda, and 8.2 in Fresno to 122.1 in Ventura, 106.9 in Yolo, and 84.7 in Kings.

• The 30 counties that used direct-filing at rates higher than the state average experienced a lesser reduction in juvenile crime trends, both for qualifying felonies and other serious offenses, than the 28 counties that used the procedure at lower than average rates. Thus, prosecutor predilection towards direct adult criminal court filing is not founded upon any demonstrable effect of reducing juvenile crime rates.

• A youth committing a qualifying felony offense is five times more likely to be subject to direct-filing in Ventura County than in other counties.

August 31, 2011 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, August 26, 2011

Feds seeking (within-guideline) sentence of 70-80 months for high-profile insider trader

As detailed in this Bloomberg piece, "Craig Drimal, the former Galleon Group LLC trader who pleaded guilty to insider-trading charges, should get a prison term of 70 to 80 months, which is within federal sentencing guidelines, the U.S. said in a court filing."  Here is more about this high-profile white-collar case, which is scheduled for sentencing next week:

Drimal, 55, pleaded guilty in April in federal court in New York charges of conspiracy and securities fraud. Drimal admitted that he and others at Galleon traded on inside information obtained from lawyers working on transactions involving 3Com Corp. and Axcan Pharma Inc. in 2007.  Drimal said the information was obtained from Arthur Cutillo and Brien Santarlas, lawyers at Boston-based Ropes & Gray LLP.

Drimal has suggested that the court impose community service or home confinement in lieu of a “substantial” prison term, prosecutors said.  The request should be denied in order to send a “strong message of deterrence to others in the hedge fund community” and because the “nature and extent of his criminal conduct doesn’t warrant community service,” prosecutors said.

“Drimal has no excuse for his illegal conduct,” prosecutors said in the sentencing memo, which was filed yesterday.  “He grew up in a stable, loving family with no financial difficulties.  He is a college graduate.  He has a loving and supportive family.  He fully understood that insider trading was illegal and yet repeatedly disregarded the law to make a lot of money.”...

Drimal’s attorney, Jane Anne Murray, said she filed a memorandum last week asking the judge impose a sentence below the federal guidelines. “We’re not surprised by their position; it’s been consistent,” Murray said in a phone interview.  “We disagree with the government on a number of issues including the applicable guidelines.  And we’re seeking a sentence that is substantially lower than the one the government is seeking.”

August 26, 2011 in Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

Wednesday, August 24, 2011

"Psychopathy and Culpability: How Responsible is the Psychopath for Criminal Wrongdoing?"

The title of this post is the title of this new paper by Professor Reid Fontaine (and two co-authors), which is now available via SSRN.  Here is the abstract:

Recent research into the psychological and neurobiological underpinnings of psychopathy has raised the question of whether, or to what degree, psychopaths should be considered morally and criminally responsible for their actions.  In this article we review the current empirical literature on psychopathy, focusing particularly on deficits in moral reasoning, and consider several potential conclusions that could be drawn based on this evidence.  Our analysis of the empirical evidence on psychopathy suggests that while psychopaths do not meet the criteria for full criminal responsibility, they nonetheless retain some criminal responsibility.  We conclude, by introducing the notion of rights as correlative that even if psychopaths were to be fully non-responsible, it would still be warranted to impose some form of civil commitment.

August 24, 2011 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack

Tuesday, August 23, 2011

"Court orders resentencing of ex-Pennsylvania state senator"

The title of this post is the headline of this Reuters piece reporting on a high-profile Third Circuit ruling today in a high-profile corruption case. Here are the details:

A federal appeals court on Tuesday ordered the resentencing of a former Pennsylvania state senator, saying the trial judge erred in his sentencing of the once powerful former politician.

Former State Senator Vincent Fumo was sentenced to 55 months in a minimum-security federal prison after he was convicted in March 2009 of 137 charges of fraud, tax evasion and obstruction of justice.

The Democrat's conviction was upheld by the Third Circuit Court of Appeals on Tuesday, which ordered the resentencing.  In an unusual move, prosecutors in May argued that Fumo should be resentenced to up to 27 years in prison, saying U.S. District Court Judge Ronald Buckwalter had been too lenient and did not explain why he sentenced Fumo to below federal sentencing guidelines.

In a statement, U.S. Attorney Zane David Memeger said: "We are pleased with the decision of the Third Circuit Court of Appeals and will prepare for the next step in the process."...

Fumo's lawyers had argued that the sentencing judge committed "no significant procedural error" and noted the court had ordered Fumo to pay a fine of $411,000 and more than $2.3 million in restitution.  His attorneys also added that Buckwalter found Fumo had worked hard for the public, warranting a departure from sentencing guidelines.

The full opinion in US v. Fumo, No. 09-3390 (3d Cir. Aug. 23, 2011) (available here), runs 84 pages, though the last 22-pages is made up by a dissent by Judge Nygaard on the sentencing issues.  I hope to have more comments on these opinions when I get to consume them fully.

August 23, 2011 in Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, August 21, 2011

"Sentencing disparities in child-sex-assault cases point to double standard"

The title of this post is the headline of this intriguing piece appearing today in the Denver Post.   Here are excerpts:

Women in Colorado convicted of sexually assaulting a child in their care are far less likely to go to prison than men sentenced for the same crime.

A Denver Post analysis of sentencing data provided by the Colorado Judicial Branch shows that of the 2,128 men convicted of sexual assault on a child by a person in a position of trust from 2006 through 2010, more than 50 percent were sent to prison.  Of the 79 women convicted of the same felony offense, 38 percent went to prison. A little more than 39 percent of female defendants in that same period — 31 — were put on intensive supervised probation.  Less than 35 percent of men were given the same sentence.

Experts who have studied the issue say those statistics are mirrored nationwide and show a clear disparity between how male and female teachers, coaches and babysitters are treated when they are convicted of sexually abusing a child....

With women, the victim is often a young or teen male in her charge, and too often the abuse is seen as less traumatic and almost a badge of honor for the boy, said forensic psychologist Katherine Ramsland....  Ramsland and others who track sexual-assault cases involving both men and women say prosecutors are starting to understand that women caught preying on teens — both boys and girls — can do just as much damage as men and are pushing for judges to treat offenders of both genders equally....

Several studies show that males molested by female caregivers run a huge risk of becoming sex offenders in adulthood.  Also, 80 percent of male victims of female sexual abuse have been divorced, according to a study done by Stephanie Reidlinger, a law student at Regent University School of Law in Virginia Beach, Va.

Her study says that women who molest boys are most likely victims of abuse themselves. Reidlinger also says that many cases of woman-on-boy crimes are not reported at all, due in part to the media.  "Media outlets rarely use language to convey this type of sexual abuse as a traumatic crime," Reidlinger said. "While reports about male offenders quite often include words like 'predator' or 'monster,' reports of female crimes refer to the perpetrators as 'bombshells' or the conduct as a 'romp.' "...

To be sure, women who abuse children and who are also teachers, coaches and babysitters are a significant minority. In fact, only eight women either had their teaching credentials revoked or denied by the Colorado Department of Education from 2006 to the present because of sexual misconduct.  During that same period, 32 male educators were disciplined for the same reason, according to the department.

Prosecutors and defense lawyers also contend that the sentencing disparity between the genders could result from multiple factors, including prior history and likelihood of recidivism.  A 2005 study shows that females convicted of a sexual offense repeat the same offense only about 1 percent of the time.  The recidivism rate for male sex offenders is 13.4 percent.

That could play a role in determining whether a female offender should be sent to prison and, if she is, how long she should stay, said Larimer County District Attorney Larry Abrahamson.  "You look at the charges, you look at the level of threat that individual is causing the community and if that person is subjecting the victim to pretty significant trauma. You have to look at all of those factors," Abrahamson said.

Sex offenders also are subject to intense psycho-sexual evaluations that weigh whether that person is likely to recommit a sex crime, he said. "Those responses can determine what kind of punishment level you are seeking," Abrahamson said.

August 21, 2011 in Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (27) | TrackBack

Might California follow Texas and abolish all forms of juve LWOP?

As detailed in this recent CNN piece, this coming week the California legislature is to consider again a bill to eliminate life without parole for any and all juvenile offenders.  Here are the basics:

A controversial bill headed for a vote in California has stirred up conversation again about whether life sentences for juveniles need to be re-examined. Under the state bill, which received a key vote [last] Wednesday to allow it to head to the Assembly floor for a vote, some juvenile offenders would get the opportunity for release.

At the heart of the bill is a question that's been pondered by legal scholars, law enforcement and even the Supreme Court: Should juveniles who have committed crimes that led to a life prison sentence be given a second chance?

The bill, introduced by Sen. Leland Yee, D-San Francisco, would allow juveniles to ask a court to re-examine their sentences after they have served 15 years for their crime.  Yee, who is also a child psychologist, argues that at certain ages, kids don't have the full capacity to understand their crimes, and locking juveniles up without giving them a chance to show they have gained that capacity isn't the right answer.

This weekend brings editorials from some California papers vocally endorsing this bill to eliminate juve LWOP in the Golden State:

But this op-ed commetary from the Sacramento Bee has a different take, as evidenced by its headline: "Bill that would allow resentencing in heinous juvenile crimes is flawed."

August 21, 2011 in Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, August 19, 2011

Feds seeking LWOP sentence for priest involved with kiddie porn

This new Kansas City Star article, which is headlined "Federal prosecutors want life sentence for priest in child pornography case," reports on a notable child porn case involving notable defendant.  Here are the details:

A Catholic priest accused of producing child pornography should receive life in prison if convicted, federal prosecutors declared Thursday.  Prosecutors disclosed their sentencing goals in a motion asking that the Rev. Shawn Ratigan remain in jail pending trial.  They filed the paperwork just minutes before Ratigan’s first federal court appearance on 13 counts of production, attempted production and possession of child pornography.

John P. O’Connor, Ratigan’s lawyer, entered not guilty pleas to all the federal charges on his client’s behalf.  The priest, dressed in black jail scrubs and still sporting a bushy, full beard, did not speak during his brief appearance.

Because Ratigan has not been able to make bond on three Clay County counts of possessing child pornography, U.S. Magistrate Judge Sarah W. Hays said she would defer ruling on the federal detention motion unless it became necessary.

The court filings also disclosed new information about how leaders of the Roman Catholic Diocese of Kansas City-St. Joseph responded when they learned that troubling photographs had been discovered on Ratigan’s computer.  The priest had given that computer to a technician for repair in December.

Ratigan allegedly lied to his supervisors when they asked if he had taken the pictures, court records said.  In addition to various “upskirt” and “crotch” photographs, the supervisors asked Ratigan about a “close-up vaginal” photograph found on his computer, court records said. Other court records have described that picture as a girl lying down with her panties pulled aside.

Church officials have not described their initial discussions with Ratigan about the photographs, but have suggested that they weren’t certain that the pictures constituted child pornography.  In a statement on May 20, just after Ratigan was arrested on the state charges, Bishop Robert Finn said that he had learned in December about “images of an unclothed child who was not identifiable because her face was not visible.”

The diocese soon described the images to a Kansas City police officer and showed them to a lawyer, Finn said.  Both said the images were troubling, but were not child porn because they did not show “sexual conduct or contact,” according to Finn.

Federal prosecutors later concluded that the image that Ratigan denied taking was pornographic and charged him....

Immediately after church officials seized Ratigan’s computer, the priest attempted suicide, received psychiatric care and was assigned to live in an Independence mission house.

Prosecutors disclosed Thursday that in addition to accessing Facebook from a computer in a common area of the house, Ratigan also purchased a computer, which he used in his apartment for about 10 days before his arrest.  Images of a 12-year-old girl found on that computer, taken on Easter Sunday, April 24, formed the basis of a charge against Ratigan of attempted production of child pornography.

August 19, 2011 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (20) | TrackBack

Wednesday, August 17, 2011

"Juvenile Criminal Responsibility: Can Malice Supply the Want of Years?"

The title of this post is the title of this notable new piece by Professor Craig Lerner now available on SSRN. Here is the abstract:

Can the young be held accountable for their crimes?  At common law, juveniles were entitled to a presumption of incapacity, but were subject to criminal liability on an individualized basis: demonstrated malice supplied the want of years.  In Graham v. Florida, the United States Supreme Court rejected this principle, and held that juveniles categorically could not be sentenced to life without parole for crimes other than homicide. Embedded in the Court’s holding, this Article argues, are a simplifying assumption about the relative maturity of juveniles and adults and a moral claim about the culpability of homicides and nonhomicides, and both this assumption and this claim are demonstrably false in a nontrivial number of cases.

This Article focuses on the facts of some of these cases. One cannot assess the culpability of particular defendants unless one considers, without artful euphemisms or convenient elisions, what they did. And what certain crimes reveal is that that there are violent juvenile offenders -- fortunately rare -- who are as least as mature and culpable as the typical adult violent offender.  The Article also considers lower court applications of Graham and finds, for the most part, marked skepticism.  The Supreme Court’s general theory of juvenile immaturity has failed to impress judges confronting particular cases. The Court’s central claim about the relative culpability of adult and juvenile offenders originates from a failure to confront inconvenient facts and a belief that human nature is sufficiently captured by the three standard deviations that surround one’s own experience in the world.  Lower court judges have access to a wider data set in reaching contrary conclusions.

August 17, 2011 in Assessing Graham and its aftermath, Offender Characteristics | Permalink | Comments (3) | TrackBack

More great commentary at The Crime Report

Regular readers by now may be tired of my frequent promotion of content at The Crime Report, but it is commentary and coverage like the stories below that continue to make it a daily must-read for folks interested in serious coverage of a range of cutting-edge crime and punishment issues:

August 17, 2011 in Data on sentencing, Offender Characteristics, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

"Lawyers for Defendant in Giffords Shooting Seem to Be Searching for Illness"

The title of this post is the headline of this interesting new piece from the New York Times.  Here is how it starts and ends:

Jared L. Loughner’s grandparents and great-grandparents died years ago, but lawyers defending Mr. Loughner in connection with a Jan. 8 shooting spree outside Tucson are delving into their lives and those of numerous other Loughner ancestors in an apparent effort to show that mental illness runs in the family.

A raft of subpoenas that Reuben C. Cahn, one of Mr. Loughner’s lawyers, issued last month, and then withdrew, indicates that the defense is researching the backgrounds of many of the defendant’s relatives from Illinois, all on his mother’s side....

Legal experts consider the attention on Mr. Loughner’s relatives part of his defense team’s effort to bolster an eventual insanity defense or to argue against the death penalty. “If the defense can show that mental illness runs in the family, they have a stronger case, one that is more convincing to the jury,” said Christopher Slobogin, a professor of law and psychiatry at Vanderbilt Law School. “Short of a brain scan that shows mental defect, a family history of mental illness is the most persuasive evidence that someone had significant mental problems at the time of the crime.”...

Two mental health experts have diagnosed schizophrenia in Mr. Loughner. Because he has been determined a threat to himself and others, Bureau of Prisons psychologists have been forcibly medicating him, which his defense team has strenuously objected to in a series of court filings.

Mr. Loughner’s lawyers have asserted that prison officials may be administering medication to their client so they can prepare him to face the death penalty. “Mr. Loughner has a due-process right to bodily integrity free of unwanted, forcible administration of psychiatric medication,” his lawyers wrote in a recent request for a court hearing on the matter.

Mr. Loughner’s lawyers have also urged the court to order the videotaping of Mr. Loughner’s interviews with prison psychologists. They say he suffers from a condition called echolalia, which makes him repeat whatever is said to him, that the defense wishes to monitor.

August 17, 2011 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (19) | TrackBack

Tuesday, August 16, 2011

"Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively"

The title of this post is the title of an important and exciting forthcoming book by Professor Deborah Denno; now posted at this SSRN link is a synopsis of the book's coverage and themes.   Here is the posted SSRN abstract:

A criminal justice system should protect society from crime and also punish criminals at the level of their blameworthiness.  Changing Law’s Mind contends that new insights about the brain can help us in the quest to construct a fairer and more effective criminal justice system.  Recent neuroscientific discoveries suggest that some of our previous intuitions about human culpability fail to reflect the reality of how the brain functions.  If we ignore these developments, we risk perpetuating a justice system that punishes some people far too much and others too little or not at all.

The intersection of law and neuroscience is a thriving topic, but this book is unique. Many books and chapters in edited books focus narrowly on issues such as the diagnosis and effect of brain abnormalities or the possibility that neuroscience will someday perfect lie detection.  Changing Law’s Mind, instead, provides readers with a foundation in both the legal doctrine and neuroscience and then uses that bridge to question the criminal law’s underlying principles and practice, starting from the moment a case is processed in the system to the point at which a defendant is sentenced and punished.  Based on this assessment, the book suggests ways in which the criminal law can change -- either quickly by accommodating our new understanding of the human mind into current practice or more fundamentally by incorporating this understanding into long-term modifications of criminal law doctrine.

August 16, 2011 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Saturday, August 13, 2011

"Resistance Widens to Obama Initiative on Criminal Immigrants"

The title of this post is the headline of this interesting article in today's New York Times.  Here are excerpts:

Mayor Thomas Menino, who often invokes his heritage as the grandson of an Italian immigrant, was one of the first local leaders in the country to embrace a federal program intended to improve community safety by deporting dangerous immigrant criminals.

But five years after Boston became a testing ground for the fingerprinting program, known as Secure Communities, Mr. Menino is one of the latest local officials to sour on it and seek to withdraw. He found that many immigrants the program deported from Boston, though here illegally, had committed no crimes. The mayor believed it was eroding hard-earned ties between Boston’s police force and its melting-pot mix of ethnic neighborhoods.

Last month, Mr. Menino sent a letter to the program with a blunt assessment. “Secure Communities is negatively impacting public safety,” he wrote, asking how Boston could get out. On Aug. 5, Immigration and Customs Enforcement, which runs the program, gave an equally blunt response. Its director, John Morton, announced he was canceling all agreements that 40 states and cities had signed to start Secure Communities. Their assent was not legally required, he said, and he planned to move ahead anyway to extend the program nationwide by 2013....

Mr. Menino’s disenchantment illustrates the widening resistance from cities and states that is troubling one of President Obama’s most far-reaching programs to toughen enforcement against illegal immigration.

Administration officials are pressing ahead, saying that information-sharing laws passed after the Sept. 11 attacks mandate the program. The clash will gain a higher profile this month, when a task force Mr. Morton named to recommend fixes is to hold public hearings in a half-dozen cities....

Obama administration officials vigorously defend Secure Communities, saying it is essential for identifying immigrant gang members and other violent criminals arrested by the local police, so federal agents can focus on deporting them. Officials say they are taking steps to avoid deporting foreigners detained for immigration violations, which generally are civil, not criminal, offenses.

In a July 25 letter defending his strategy, Mr. Obama said that deportations of convicted criminals over all increased by 70 percent in 2010 over 2008, while the share of noncriminals among deportees was declining. “The increase in the proportion of criminal removals demonstrates that this strategy is having a real impact,” the president wrote.

Under Secure Communities, the fingerprints of anyone booked into jail are checked against the F.B.I.’s criminal databases — long a routine police practice — and forwarded to the Department of Homeland Security to be run through its databases, which record immigration violations. If an immigration check yields a match, the immigration agency decides whether to detain the foreigner for deportation.... [T]his year three governors — including Deval Patrick of Massachusetts, as well as Pat Quinn of Illinois and Andrew M. Cuomo of New York, all Democrats — announced that they wanted to pull out, as did officials in Los Angeles and San Francisco. The Congressional Hispanic Caucus and more than 200 immigrant groups have asked Mr. Obama to suspend the program....

Problems started earlier this year when advocacy groups released immigration data showing that more than half of 313 immigrants deported from Boston under the program had no criminal convictions. Many had been detained in traffic stops.

Boston’s police commissioner, Edward Davis, had been a Secure Communities supporter, because his records showed that it had removed many violent criminal immigrants from Boston jails. But he concluded from the new figures that immigration officials had misled him. They specifically told us they would not be removing people with traffic offenses,” Mr. Davis said. “They said they wouldn’t and now they have.”

Mr. Davis said he was taken aback by the indifference of immigration officials to his questions. “This is a throwback to the bad old days of the federal agencies before 9/11, when we did not have cooperation,” he said. “It is really disconcerting that they are not at all concerned about our precarious situation with immigrant communities.”...

Mr. Menino said a July 7 meeting he held with immigrant leaders had persuaded him to try to cancel the program. He did not hide his anger when immigration officials said it would continue. “People will start to say the police are gestapos,” the mayor said. “My police aren’t gestapos. You can’t be a bureaucrat in Washington and just say, ‘We don’t care.’”

August 13, 2011 in Criminal justice in the Obama Administration, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics | Permalink | Comments (3) | TrackBack

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:

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

Sunday, August 07, 2011

"The Hazy Science of Hot Weather and Violence"

The title of this post is the headline of this recent Wired magazine piece (which was discussed in this recent NPR segment).  Here is how the piece starts:

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.

August 7, 2011 in Data on sentencing, Offender Characteristics, Offense Characteristics | Permalink | Comments (1) | TrackBack