Friday, July 23, 2010

Justice or unjust disparity for Ponzi schemer getting sentence doubled due to harm to victims?

This local report on a recent federal sentencing for a young fraudster, which is headlined "Pizzolato gets 30-year prison sentence in Ponzi scheme," provides a terrific setting in which to consider and debate concerns about post-Booker sentencing disparity.  First, here are the basics:

A federal judge today gave a 30-year prison sentence to a Tickfaw man accused of swindling more than 160 people, many of them senior citizens, in a Ponzi scheme based out of his Northshore investment companies.

Wearing an orange jail jumpsuit and shackles, Matthew Pizzolato, 26, turned around and faced the victims sitting in the courtroom. Everyday he is "beside himself," Pizzolato said, shaking his head and crying. "I can't understand how my actions hurt so many people." Pizzolato said he hoped the judge's actions would give his victims "some closure."

But U.S. District Judge Lance Africk said Pizzolato's conciliatory expressions had only developed recently, after he learned that the judge intended to give him a longer sentence than what had been laid out in his plea bargain with federal prosecutors.

In the end, the 30-year sentence was double the maximum laid out in the federal sentencing guidelines, but the judge said that was necessary because of several factors, such as the psychological and emotional harm done to the victims and the advanced ages of many victims. "Mr. Pizzolato, you swindled the salt of the earth,'' said Africk. "You stole from hardworking Americans who toiled their whole lives."

During the hearing, multiple victims talked about how Pizzolato had taken their life savings ensuring them that the money would be invested in conservative securities. Much of the money, however, was actually diverted into Pizzolato's own pocket or lost in the high-risk futures market.

Although he had only an eighth-grade education and a high school equivalency diploma, Pizzolato told clients that he was one of the top 10 financial planners in the country, possessed special training in investing, was a certified estate planner and had graduated from law school.

To make investors believe the scheme was legitimate, Pizzolato issued false account statements and "Certificates of Investment." In some cases, he forged the signatures of his clients to make unauthorized withdrawals from their accounts.

Of the $19.5 million he collected, Pizzolato distributed about $2.8 million back to his clients in the form of "lulling payments, " or supposed returns on their investments, in order to quell any suspicions that he was a fraud. Pizzolato diverted another $9.9 million to use in high-risk futures and commodities trading.  The rest, about $1.3 million, he lavished on himself and his family.

As the question in the title to my post is meant to spotlight, I would love to hear readers' views on whether this case is a great example of the ability post-Booker for district judges to do case-specific sentencing justice or a great example of the post-Booker problem of sentencing disparity. 

I think it fair to assert that most district judges would not have imposed a sentence on Pizzolato that was double the guideline range and more than was set forth in the plea bargain he made with federal prosecutors.  Nevertheless, it seems that legitimate sentencing factors played a central role in the decision to send Pizzolato away for 30 years (including perhaps also his young age, given that he still should may be able to be a free man at an age still much younger than the victims he swindled).

To put a fine point on this debate, here are a couple questions I would like to hear answered by any and everyone who has expressed concerns about post-Booker discretion and disparity:

1.  Do you think justice has been served or injustice created by Pizzolato's sentencing?

2.  Do you think the Fifth Circuit ought to reverse Pizzolato's sentence on appeal based on disparity concerns?  (An appeal waiver might even preclude any appeal and I highly doubt the Fifth Circuit would reverse if this matter comes to them.)

3.  Do you think the US Sentencing Commission and/or Congress needs to enact some new guidelines or statutes to diminish this kind of disparate outcome in other cases?

I raise all these question in this context because I genuinely suspect and fear that the vast majority of expressed concerns and complaints about sentencing disparity (especially when coming from current or former prosecutors) are principally concerns and complaints about sentencing leniency.  Thus. when a sentence like Pizzolato's is disparately harsh, it provides a good setting to explore whether and how folks really care about disparity apart from leniency.

July 23, 2010 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Wednesday, July 21, 2010

Wealthy sex offender reduces(?) prison sentence through plea deal giving $1.6 million (payoff?) to victim

I just came across this fascinating state sentencing story from The Oregonean, which is headlined "Portland multimillionaire pleads guilty to molesting neighbor boy, agrees to pay victim $1.6 million."  Here are the details of a story that raises a host of substantive and procedural sentencing issues:

A Portland multimillionaire who repeatedly molested a neighborhood boy has agreed to pay his victim $1.6 million and spend about nine years in prison.

The deal, approved Tuesday in Multnomah County Circuit Court, is unusual because most defendants haven't accumulated the wealth of Scott Raymond Strickland -- a former doctor and Alaska Airlines flight attendant, said Josh Lamborn, the civil attorney for the victim.  Until last year, Lamborn worked as a prosecutor, specializing in child sexual abuse cases, and he now represents victims of sexual abuse, among others.  "In my 13 years in the DA's office, I can count on one hand the people who have the kind of money Mr. Strickland has," Lamborn said.

Lamborn said the money will pay for a possible lifetime of counseling for his client, as well as compensate him for the damage from years of abuse by Strickland.  Recently, the victim told his girlfriend, then his mom, that Strickland had sexually abused him starting when he was 9 and ending at 15.

Lamborn largely negotiated the plea deal with Strickland and his attorneys, then sent the district attorney's office a letter on behalf of the victim.  He asked prosecutor Don Rees to sign off.

Rees said that in approving the deal, he took into account the victim's wishes and the victim's strong desire not to recount the abuse by testifying in a trial.  Strickland, who is now 56, didn't have a criminal history up until now.  What's more, Rees said defense attorney Scott Raivio presented "mitigating evidence" that indicated Strickland is unlikely to molest a child again.

By agreeing to pay the money and to spend what likely will amount to 8 1/2 years in prison, with time off for good behavior, Strickland may have avoided more prison. He was originally charged with multiple counts of first-degree sexual abuse, first-degree sodomy and other crimes -- and he likely faced a range between 8 1/3 years and 14 1/2 years in prison under Oregon sentencing guidelines if convicted.

But Strickland pleaded guilty Tuesday to first-degree sexual abuse and the lesser crime of attempted first-degree sodomy. He will be given an opportunity to speak at his sentencing hearing late next month. So will his victim and the victim's mother.

Judge Julie Frantz said Strickland must turn himself in to jail in about two weeks. The extra time between now and then will allow Strickland to liquidate his assets so he can pay the victim.

Strickland was arrested in January but released from jail a few weeks later because he posted the necessary 10 percent of his $4 million bail.  According to authorities, he was taken back into custody a short while later after trying to commit suicide by stabbing himself in the neck with an X-acto knife.  He was released a short while later, once a judge was convinced he was mentally stable.

In a hearing early this year, Strickland's attorney said his client worked as a doctor for 18 years in Minnesota. Records from the Minnesota Board of Medical Practice show he was forced to resign in 1999 for inappropriate behavior and for falsifying his specialty credentials to say he was certified by the American Board of Internal Medicine. He'd failed his examinations.

He then moved to Oregon to work as a flight attendant and instructor for Alaska Airlines, where he stayed for 10 years.

Strickland told authorities he was worth $2.5 million. After paying taxes and penalties, Lamborn said, most of Strickland's life's savings will go to his victim.

I have quoted the news report at length because this case reads like an exam question for not only a criminal sentencing course, but also a legal ethics exam.  Though I am not an expert on criminal justice ethics, is it really kosher for a former prosecutor, now representing a crime victim soon after he quit the DA's office, to negotiate a plea deal with his client's assailant and "then sen[d] the district attorney's office a letter on behalf of the victim [asking the] prosecutor ... to sign off" on the plea deal that he negotiated? 

As a technical matter, my legal ethics concerns perhaps turn on whether the arranged payment to the victim  — dare I say payoff?  — is styled as settlement of a possible civil suit or as restitution to be imposed as part of the formal criminal sentence.  Either way, the professional history of the "civil" lawyer putting together this deal makes this all seem a bit hinky.  (The ethical issues get even more dynamic if we reasonably assume that the former DA is getting a significant cut of the $1.6 million payment he has now secured for his client, and that the victim's parents played a significant role in the negotiations).

Legal ethics issues aside, I wonder what readers think about this story as a matter of pure sentencing.  If the juvenile victim indeed wants this criminal case to be resolved by a plea and all involved want monies going from the defendant to the victim, is there anything wrong with a significant prison time reduction being the glue that helps a plea deal stick?  (I am reminded of the Donte Stallworth DUI homicide case in which the family of the victim seemed more eager for an economic settlement than to see Stallworth serve a long prison term.)

Finally, should the sentencing analysis here as to a just prison term give any attention to the defendant's failed suicide attempt and/or his peculiar professional past?  As one always interested in (and unsure about) the proper role for offender characteristics at sentencing, this case is a doozy just on that front.

July 21, 2010 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Eighth Circuit declares Begay retroactive and provides relief in 2255 motion

While I was on the road yesterday, the Eighth Circuit handed down a significant opinion in Sun Bear v. US, No. 09-2992 (8th Cir. July 20, 2010) (available here).  Here is the unofficial summary of the ruling from the Eighth Circuit's website:

Begay applies retroactively to cases on collateral review, and defendant was not a career offender in light of Begay; the district court erred, therefore in applying the career offender guideline to defendant; the court could not say the error was harmless since the court did not clearly indicate that the career offender guideline did not impact its sentencing determination; the matter is remanded for further proceedings.

Though not breaking lots of new jurisprudential ground in Sun Bear, the opinion here clarifies and connects a lot of important points for folks working on various criminal history issues, especially on collateral review.

July 21, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Friday, July 16, 2010

Eleventh Circuit affirms convictions and 3-year prison sentence of Wesley Snipes for tax crimes

A busy week for notable federal circuit court rulings in criminal cases concludes with a major league Eleventh Circuit ruling affirming the convictions and sentence of Passenger 57 for tax crimes.  The unanimous panel decision in US v. Snipes gets started this way:

Defendant Wesley Trent Snipes appeals from his criminal convictions, after a jury trial, on three counts of willful failure to file individual federal income tax returns for calendar years 1999, 2000, and 2001, in violation of 26 U.S.C. § 7203. Snipes alleges that the trial court committed reversible error in sentencing, jury instructions, and on issues of venue.  After thorough review, we affirm the rulings and judgment of the district court in all respects.

The final 10 pages of the 35-page opinion in Snipes discusses various sentencing issues surrounding Snipes efforts to avoid the tax collectors on the money train.  But Blade is not going to be a big fan of any aspect of a ruling that confirms that even a celebrity like Snipes cannot jump out of his tax obligations or zigzag away from a prison term.  (Hat tip to IMDB for some Snipes' movie titles to (poorly) incorporate into this post.)

July 16, 2010 in Booker in the Circuits, Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (3) | TrackBack

Thursday, July 15, 2010

Any predictions for today's scheduled resentencing of Lynne Stewart?

As detailed in this AP piece, which is headlined "Government Seeks Tough Sentence Against NY Lawyer; NY Lawyer Who Helped Relay Messages From Blind Egyptian Sheik Could Get Much Longer Sentence," today is the scheduled resentencing of Lynne Stewart. Here are the basics:

A judge was poised to decide whether the government and some fellow judges were right when they said a 70-year-old former civil rights lawyer convicted in a terrorism case received too much leniency when she was sentenced to just over two years in prison.

U.S. District Judge John Koeltl was to resentence attorney Lynne Stewart on Thursday after considering the comments of appeals court judges who said he should review the role of terrorism in her case and consider if she lied when she testified at her trial.

Stewart, facing up to 30 years in prison, was sentenced to two years and four months after her conviction on charges that she let blind Egyptian Sheik Omar Abdel-Rahman communicate with a man who relayed messages to senior members of an Egyptian-based terrorist organization.

Abdel-Rahman is serving a life sentence for conspiracies to blow up New York City landmarks and assassinate Egyptian President Hosni Mubarak. Stewart represented him at his 1995 trial. Stewart was sentenced in 2006 but was permitted to remain free until the appeals court ruled last November.

Initially, the 2nd U.S. Circuit Court of Appeals ordered a resentencing that did not seem to pressure Koeltl to boost the length of the sentence considerably. But it revised its decision a month later, saying it had "serious doubts" whether her sentence was reasonable. The appeals court said Koeltl might have erred if he decided the terrorism enhancement should not be applied because of Stewart's personal characteristics.

At the first sentencing, Koeltl described Stewart as "extraordinary," a dedicated public servant who had "represented the poor, the disadvantaged and the unpopular, often as a court-appointed attorney," thus providing a "service not only to her clients but to the nation."

About 100 supporters of Stewart marched past the federal courthouse in lower Manhattan on Wednesday evening, carrying signs that said "Free Lynne Stewart" and "We Stand With Lynne Stewart." They then walked around the corner to the federal prison where Stewart is held and rallied there.

In court papers, prosecutors have asked for Stewart to receive a "severe sentence" of between 15 and 30 years in prison, saying she had carried out a plan to smuggle terrorist messages from Abdel-Rahman to his Middle East followers and had engaged in "extraordinarily severe criminal conduct."

I predict that Stewart will receive a sentence in the 6 to 8 year range.  I think it virtually certain that she will be getting a longer prison term than the first time around, but I also feel confident predicting that Judge Koeltl will not want to give her a term so long that it amounts to a functional life sentence.  Consequently, I will be surprised if Stewart gets a sentence of less than three years or more than ten, and my prediction is really just a splitting the difference between these expected benchmarks.

July 15, 2010 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, July 12, 2010

Sixth Circuit rejects effort by Ohio murderer to extend Roper to block execution

Ohio's now-standard monthly execution plans today produced this interesting little opinion from the Sixth Circuit in an order denying a stay application.  The order starts this way:

Petitioner William Garner, an Ohio inmate sentenced to death, moves this court to stay his impending execution, which is scheduled for July 13, 2010, at 10:00 a.m. Garner bases the stay motion on his application for permission to file a second or successive habeas petition, an earlier petition having been fully litigated and ultimately denied. His petition is based on Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court’s holding that the death penalty may not be imposed for crimes committed by someone under 18 years of age. Garner was 19 years old at the time of the crime, but his counsel urge that Roper extends to adults whose mental age is that of a juvenile. Roper was decided five years before Garner’s counsel brought this claim to the state courts for the first time. We deny the motion to stay.

July 12, 2010 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (1) | TrackBack

Thursday, July 08, 2010

Pleas deals by Roosskie agents leading to spy swap

Images The "sentencing" news from New York City in this high-profile russian agents case has me fondly recalling some of the classic quotes from my all-time favorite movie, especially Major Kong's expression of excitement about going "toe to toe with the Roosskies."  Here is the news from NYC federal court:

Ten Russian spy suspects pleaded guilty Thursday in federal court in New York and were promptly ordered deported to Russia as part of a deal under which U.S. officials said Moscow would release four prisoners accused of spying for the West.

Each of the 10 admitted acting secretly as an agent for Russia in violation of U.S. law requiring foreign agents to register with the government. U.S. District Judge Kimba M. Wood then sentenced each of them to time served since their June 27 arrests and ordered their deportation.  Documents submitted in federal court in Manhattan said Russia has agreed to release four prisoners incarcerated there "for alleged contact with Western intelligence agencies."

The four were not immediately named, but reports from Moscow Wednesday indicated that the government was preparing to release Igor Sutyagin, a prominent Russian scientist who has been imprisoned for 11 years on espionage charges he has steadfastly denied.  Three of the Russian prisoners were convicted of spying and are serving lengthy prison terms, the court documents said.

All have served at least "a number of years" in prison, and several are in poor health, according to the documents.  The Russian government has agreed to release them and their families for "resettlement," the documents said.... The deal represents the largest swap of espionage detainees since the Cold War.

Intriguingly, not everyone thinks this deal is ideal:

Stephen Sestanovich, a former National Security Council official and expert on Russia, questioned what he called the Obama administration's "catch and release" policy and whether the government obtained all the information it could from the accused spies.

"The Russians made their point about Sutyagin, keeping him in jail for 11 years," Sestanovich said. "What point do we make by keeping these guys in detention for 10 days?" He also said he wondered whether U.S. law-enforcement authorities are "happy with the idea of an early release."

Assistant U.S. Attorney Michael Farbiarz said at the start of Thursday's hearing that the 10 defendants wanted to enter guilty pleas.... A U.S. official confirmed Wednesday that talks between the two governments on a swap began last week shortly after the June 27 arrest of the suspects. The diplomatic discussions depended on lawyers reaching a plea arrangement in federal court in New York.

July 8, 2010 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

Phony lawyer Howard Kieffer facing an upward departure in his federal sentencing

Persons who follow the federal sentencing system have long known the name Howard Kieffer, and this local story suggests he may now break new legal ground in the role of convicted defendant instead of in his previous (fraudulent) role as a lawyer.  The story is headlined "Judge plans to get tough in sentencing fake attorney," and here are excerpts:

U.S. District Judge Christine Arguello told fake attorney Howard O. Kieffer on Wednesday that, given his 30-year criminal history, she intends to send him to prison for longer than is recommended by sentencing guidelines.

Kieffer, 54, was convicted in April of wire fraud, making false statements and contempt of court. The con man pretended to be a licensed criminal attorney and represented an Aspen woman during a trial in Denver's federal court.

Gwen Bergman was accused of trying to hire a hit man to kill her son's father, and her family hired Kieffer for nearly $70,000. A check of federal records found Kieffer represented at least 16 clients in 10 different federal jurisdictions since 2004. He was caught in 2008.

"The roots of your scheme and your conduct throughout the years has been nothing but deception," Arguello said. "You used your knowledge of the court system to take advantage of the system, those families and the courts."

Arguello read from a long list of Kieffer's crimes, dating to 1976, when he was 20 years old and in possession of 20 pieces of stolen mail containing about $20,000 in checks....

Arguello said she doesn't believe the federal sentencing guidelines are sufficient in Kieffer's case.

The guidelines suggest Kieffer spend 60 months in prison at the same time as an 51-month prison sentence he is serving for the same criminal conduct out of North Dakota. Arguello intends to sentence Kieffer to prison time consecutive to the time he is already serving.

The judge asked Kieffer's attorney, Nathan Chambers, and Assistant U.S. Attorney Stewart Walz to submit briefs of their position on her intentions for a tougher prison term.

July 8, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (12) | TrackBack

Wednesday, July 07, 2010

"Can Genes And Brain Abnormalities Create Killers?"

The question in the title of this post is the headline of this NPR feature on Talk of the Nation which reviews some of the latest research and debate over brain science and criminal justice.  Here is how the lengthy segment is set up by the NPR folks:

Breakthroughs in neuroscience are changing the way criminals are defended in court.  Scientific research on brain scans and DNA has provided new insight on how some kinds of criminals are different from law-abiding citizens.  Differences in their brains and genes may predispose them to violence.

July 7, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

Eighth Circuit quickly rejects effort to extend Graham to juve priors

In US v. Scott, No. 09-2577 (8th Cir. July 6, 2010) (available here), an Eighth Circuit panel makes quick work of a defendant's claim that his life sentence for drug offenses violated the Eighth Amendment rights because the sentence was based in part on two prior drug felonies committed when he was under 18.  Here is the heart of the defendant's claim and the panel's rejection of it:

Scott argues that the Eighth Amendment prohibits enhancing his sentence based on his previous felony drug convictions because he was a juvenile when he committed those crimes. We note that while Scott committed his prior felony drug offenses as a juvenile, he was charged and convicted of both crimes as an adult.  Nonetheless, we have upheld the use of juvenile court adjudications to enhance subsequent sentences for adult convictions.  See United States v. Smalley, 294 F.3d 1030, 1032-33 (8th Cir. 2002).  Given the holding in Smalley that juvenile court adjudications may be used for enhancement purposes, we see no reason that convictions for crimes committed by juveniles who are convicted as adults cannot be similarly used.

The U.S. Supreme Court cases that Scott cites, Roper and Graham, do not change this result. These decisions established constitutional limits on certain sentences for offenses committed by juveniles.  However, Scott was twenty-five years old at the time he committed the conspiracy offense in this case.  Neither Roper nor Graham involved the use of prior offenses committed as a juvenile to enhance an adult conviction, as here.  The Roper decision addressed the constitutionality of imposing the death penalty for a murder committed by a juvenile and does not call into question our decision in SmalleySee United States v. Kirkland, 450 F.3d 804, 805 (8th Cir. 2006) (applying Smalley after Roper). Similarly, the Court’s analysis in Graham was limited to defendants sentenced to life in prison without parole for crimes committed as juveniles.  The Court in Graham did not call into question the constitutionality of using prior convictions, juvenile or otherwise, to enhance the sentence of a convicted adult. Therefore, we affirm the constitutionality of Scott’s life sentence under 21 U.S.C. § 841(b)(1)(A).

I think a lot more could and probably should be said about what Grahamcould and should mean for juve priors as the basis of severe sentence enhancements, but I am not at all surprised that the Eighth Circuit was inclined to give an effort to extend Graham short shrift.

July 7, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Tuesday, June 29, 2010

High-profile below-guideline political corruption sentence headed to Third Circuit

As detailed hereand in other posts linked below, last summer brought lots of discussion and debate over the 55-month prison sentence imposed on Pennsylvania state lawmaker Vincent Fumo for his convictions on various corruption charges.  Because Fumo was convicted at trial of many charges involving lots of corruption, most commentary assailed his below-guideline sentence as too lenient.  And now, as these newspaper reports highlight, this high-profile federal sentencing debate is going to be heading to the Third Circuit:

Because Fumo is in his late 60s and because the Sentencing Commission has new proposed amendments that indicate that age now is a potentially relevant departure factor, this case may be extra interesting in its briefing and argument concerning reasonableness review.  That said, I suspect the government's appeal will stress what it views as procedural errors that it will say played a role in the sentence Fumo got from the district court.

Related prior posts on Fumo sentencing:

June 29, 2010 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, June 24, 2010

"Clean Slate: Expanding Expungements & Pardons For Non-Violent Federal Offenders"

The title of this post is the title of this new article by Lahny Silva now available via SSRN. Here is the abstract:

Over the past forty years, the United States Congress has passed legislation expanding the federal criminal code intruding into an area typically reserved to the states.  The "tough on crime" rhetoric of the 80s and 90s brought with it the enactment of various legislative initiatives: harsh mandatory minimum sentences for non-violent federal offenders, "truth in sentencing" laws that restricted or abolished parole and early release, and strict liability disqualifications from employment and federal benefits based solely on the fact of conviction. The effect of this legislation was the creation of a new criminal class: a federal prison population.  Unlike the states however, the federal government does not have a legal mechanism in place that adequately reintegrates federal offenders back into the American polity. This has contributed to soaring federal incarceration rates, rising government costs for corrections, and a historically high rate of criminal recidivism.  This is a price tag the United States can no longer afford to pay.

This article argues that individuals who have served their sentences and abided by the law for some period afterward should be given the opportunity to clear their slates of their criminal histories.  Such expungement of criminal convictions for individuals who demonstrate that they will abide by the law are likely to reduce the costs of the criminal justice system and improve the lives of ex-offenders.  The first parts of this article examine post-conviction penalties and contemporary recidivism trends. Second, this article investigates the law governing federal pardons and judicial expungements, finding that the doctrines and their applications lack consistency, making it difficult for non-violent offenders to re-enter mainstream society . This article argues that simply eliminating post-conviction disabilities would be extremely complex and perhaps not feasible practically or politically. Moreover, the two existing federal post-conviction remedies-pardons and judicial expungements are not designed to, and cannot as a practical matter, provide systematic relief from post-conviction disabilities.  Using state post-conviction mechanisms as examples, this article argues that congressionally sanctioned expungements are an attractive alternative to relieve non-violent offenders of the effects of post-conviction disabilities. I propose that the United States Sentencing Commission (hereinafter "U.S.S.C.") create a Second Chance Advisory Group to determine how best to ameliorate the collateral consequences of federal convictions.  With a Second Chance Advisory group, the U.S.S.C. may be used as a vehicle for researching and recommending legislative policy initiatives that will effectively slash incarceration, recidivism, and opportunity costs.

June 24, 2010 in Clemency and Pardons, Offender Characteristics | Permalink | Comments (4) | TrackBack

Tuesday, June 22, 2010

Some notable reactions and coverage of the severe white-collar sentence for Sholom Rubashkin

As reported here yesterday, a high-profile white-collar case culminated in a very long sentence for Sholom Rubashkin for his role in the financial fraud at a former Iowa kosher plant Agriprocessors Inc. This sentence has already produced notable reactions, as this abridged press review highlights:

Though a lot could and surely will be said about the long prison sentence imposed on Sholom Rubashkin, those who focus on sentencing patterns might especially want to recall that the sentence of 27 years given to Rubashkin is longer than the prison sentences imposed on the heads of Enron (Jeff Skilling) and WorldCom (Bernie Ebbers) and Adelphia (John and Tim Rigas).

June 22, 2010 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (3) | TrackBack

Monday, June 21, 2010

Kosher plant chief Sholom Rubashkin sentenced to 27 years imprisonment

This local newspaper entry, which is headlined "Sholom Rubashkin to receive 27-year prison sentence," reports on the severe sentencing outcome in a high-profile federal white-collar case out of Iowa.  Here are the early details:

Sholom Rubashkin will receive a 27-year federal prison sentence on Tuesday for his leadership in the financial fraud scandal at Agriprocessors Inc., a judge declared today. U.S. District Judge Linda Reade will impose a 324-month prison term for the former eastern Iowa meat plant mogul, followed by 5 years of supervised release, according to a ruling filed this morning.

She also will order Rubashkin to pay $18.5 million to First Bank Business Capital, the plant’s largest lender; $8.3 million to MB Financial Bank, another lender; and $3,800 to Waverly Sales, Inc., which received late payments from the plant for cattle.

Rubashkin was convicted of 86 financial fraud charges last November for leading the scheme to defraud the banks.  A South Dakota jury concluded at trial that Rubashkin had ordered employees to create bogus financial documents to collect advances on a revolving loan. The plan collapsed shortly after a May 2008 immigration raid at Agriprocessors in Postville, when the slaughterhouse plummeted into bankruptcy.

Reade rejected defense arguments that Rubashkin lacked the authority to stop the criminal conduct at the Postville slaughterhouse founded by his father. She cited 11 examples from his trial, including testimony that he directed employees to create false sales records, and helped illegal immigrant employees secure false work papers.

Rubashkin’s “degree of control and authority was close to absolute,” Reade wrote in the 52-page ruling. “He told his employees when, where and how to commit the various crimes.” Reade said Rubashkin lied at his trial when he testified that he never told employees to create fake sales records and customer checks. His testimony conflicted with former employee accounts that were more believable, she said.

She also rejected defense arguments for a lesser sentence because of his charitable work, his relationship with his 16-year-old autistic son, Moishe, and other family responsibilities. “Defendant devotes a substantial amount of evidence and argument to his contention that his offenses of conviction were not motivated out of a sense of personal greed, but rather, out of a sense of duty to maintain his family business for religious purposes,” Reade wrote.

“No matter Defendant’s motive, he defrauded the victim banks out of millions of dollars. He unlawfully placed his family business’s interest above the victim banks’ interest. His family business and he personally benefitted at the expense of all the victim banks’ innocent shareholders.”

She later added: “Additionally, it is entirely possible that a number of Defendant’s charitable deeds were funded with proceeds from his crimes. It is far easier to be generous with someone else’s money instead of one’s own.”

Prosecutors had asked Reade to impose a 25-year sentence. Rubashkin’s attorneys requested no more than six years. Defense lawyers said they plan to appeal Rubashkin’s conviction and sentence. “We believe that the sentence is greater than necessary,” said Rubashkin lawyer Guy Cook, of Des Moines. “It’s even greater than the government asked for. It’s unfair and excessive. It’s essentially a life sentence for a 51-year-old man, and it’s not in the public interest.”

Reade said she will read her sentence memorandum in federal court Tuesday in Cedar Rapids. Prosecutors and defense attorneys have scheduled press conferences afterward to speak about the case.

It appears that Judge Reade rejected virtually all of the defense's guideline-based and non-guideline arguments for a lesser sentence for Sholom Rubashkin.  It also seems that she wrote a very lengthy sentencing opinion to explain the exercise of her sentencing judgment.  I will post that opinion when I can track down a copy.

Related posts on the Rubashkin case:

UPDATE:  I pulled the sentencing opinion in this case that was filled this morning off PACER, and I have provided it for downloading here: Download Rubashkin sentencing opinion

June 21, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

You make the sentencing call: resentencing of Qwest's Nacchio on tap for this week

As detailed in this Denver Post article, which is headlined "Former Qwest CEO Nacchio awaits resentencing," a high-profile white-collar defendant is scheduled to be resentenced later this week. Here are all the details:

Former Qwest chief executive Joe Nacchio, 14 months into a six-year prison term for criminal insider trading, will receive a new sentence Thursday. What that sentence will be is anybody's guess.

Nacchio attorney Sean Berkowitz contends it should be less than three years and five months. The government argues federal guidelines allow for a sentence of as long as 12 years and seven months.

U.S. District Judge Marcia Krieger has set aside three days, Tuesday through Thursday, to resolve the matter.

A federal appeals panel last summer granted Nacchio a new sentence, ruling that trial judge Edward Nottingham miscalculated how much Nacchio gained from illegally selling Qwest stock based on nonpublic information that the company was faltering financially.  The amount of money a defendant gains from a crime is a key sentencing factor in securities cases. Nottingham determined Nacchio gained $28 million.

An analysis by government expert Anjan Thakor, a finance professor at Washington University in St. Louis, says Nacchio gained between $23.5 million to $32.9 million.  Thakor is expected to testify Tuesday.  Nacchio's expert, Northwestern University business law professor Daniel Fischel, pegs that figure at $1.8 million. Fischel is expected to testify Wednesday....

Under federal sentencing guidelines, the amount of gain and factors including the type of crime determine the range of the prison term a judge should impose.  The guidelines are advisory, not mandatory.  But a judge must state reasons for imposing a sentence outside the range.

Nacchio's initial sentence was based on 2000 sentencing guidelines because his illegal stock sales occurred in 2001. The government contends Krieger should use 2006 guidelines, which are harsher.

In a court filing pushing for a lighter sentence, Berkowitz portrays Nacchio as a charitable family man who has already suffered enough. "He has lost his career, his livelihood, his reputation, and his freedom," the filing states. "His life has already been forever changed."

The government claims a harsher sentence is warranted because Nacchio's actions "reflect substantial greed" and the offense "is far more aggravated" because of his leadership position at Qwest.  Nacchio and his wife had a combined net worth of $421 million in April 2001, around the time of the illegal stock sales, according to a court filing.

In addition to the prison term, Nacchio was ordered to pay $19 million in fines and forfeit $52 million — the gross amount of his stock sales.  Berkowitz says the fine should be $3.6 million or less and his fine and forfeiture combined should be no more than twice what Krieger determines to be the gain amount.  The government says Nacchio should pay $19 million in fines and $44 million in forfeitures.

Nacchio, who turns 61 Tuesday and is serving time at a federal prison camp in Minersville, Pa., will not attend the re-sentencing hearings, which will be in U.S. District Court in Denver.

Though only those directly involved in the resentencing hearings will hear all the evidence needed to make a fully informed decision, the rest of us certainly can have ideas about what kind of sentence may be "sufficient but not greater than necessary" in this high-profile white-collar case.  So, dear readers, you make the call: what sentence would you be inclined to impose on Joe Nacchio?

June 21, 2010 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

Sunday, June 20, 2010

Is fostering fatherhood an effective means to promote rehabilitation?

The question in the title of this post is inspited by this recent USA Today article, which is headlined "Prison dads learn meaning of 'father'" and which seems like a fitting post in honor of today's Hallmark holiday. Here is an excerpt:

More than 1.7 million children across the USA have a parent in U.S. prisons, according to the Bureau of Justice Statistics. T he number of children with a father in prison grew by 77% from 1991 through mid-2007. And those children are two to three more times likely to wind up behind bars themselves, says Christopher Wildeman, a University of Michigan sociologist who has studied the effects of imprisoned parents.

To try to snap that trend, Angola and other prisons across the country sponsor two programs aimed at reconnecting prison dads with their children: Returning Hearts, a day-long carnival-like celebration where inmates spend eight hours with their kids, and Malachi Dads, a year-long training session that uses Bible passages to help improve inmates' parenting skills.

Inmates must show good behavior to participate in the programs, Warden Burl Cain says. Once they feel reconnected to their family, their attitudes improve, he says.  Around 2,500 inmates have participated in Returning Hearts since it began in 2005.  Malachi, which started in 2007, currently has 119 men.  "The ones who were problematic before are not problematic anymore," Cain says. "Prison didn't straighten them out; their kids straightened them out."...

Rehabilitating prisoners through better fathering is a growing movement, says Roland Warren, president of the National Fatherhood Initiative.  InsideOut Dad, a program run by the initiative designed to connect inmates with their families, started in 2004 at a handful of facilities and has spread to more than 400 prisons and jails nationwide, he says. "This is a paradigm shift," Warren says.  "People are saying we have to figure out a way to reduce recidivism.  Connecting them to family and community is a key way to do that."

June 20, 2010 in Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2) | TrackBack

Friday, June 18, 2010

Eleventh Circuit finds Georgia procedure for implementing Atkins unconstitutional

An Eleventh Circuit panel has a fascinating ruling today in Hill v. Schofield, No. 08-15444 (11th Cir. Jun. 18, 2010) (available here), concerning Georgia procedures for implementing the Atkins ruling prohibiting the execution of mentally retarded persons. Here is the start of the ruling:

Warren Lee Hill, Jr. appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas petition in which he challenged his death sentence.  The district court granted a certificate of appealability on Hill’s claim that the Georgia Supreme Court’s decision upholding Georgia’s statutory requirement that in order to be exempt from execution Hill must prove his mental retardation beyond any reasonable doubt is contrary to clearly established federal law as announced in United States v. Atkins, 536 U.S. 304 (2002).  We conclude that because Georgia’s requirement of proof beyond a reasonable doubt necessarily will result in the execution of the mentally retarded, the Georgia Supreme Court’s decision is contrary to the clearly established rule of Atkins.  The execution of the mentally retarded is prohibited by the Eighth Amendment’s ban against cruel and unusual punishment.  We therefore reverse and remand.

June 18, 2010 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Thursday, June 17, 2010

An echo of Graham in Michigan sentencing of young juve killer?

The title of this post is prompted by this local story from Michigan, which is headlined "DeMarco Harris, 13, spared from life sentence." Here are the details from the start of the article:

A 13-year-old convicted of fatally shooting a Genesee County woman last year was potentially spared a life behind bars when he was sentenced this morning.

DeMarco Harris, who was 12 when he shot and killed 24-year-old Trisha Babcock in a botched robbery Aug. 1, will be placed in a juvenile facility until he's 21, after which the court will decide whether he should be released, Wayne County Circuit Judge Sheila Gibson ruled today.

Harris was convicted in his second trial by a jury last month of felony murder, armed robbery and curfew violation in the case. His first trial ended with a hung jury.

Gibson could have sentenced Harris to life in prison under a state law that allows juveniles to be designated as adults. She had wide latitude, however, and could have sentenced him as a juvenile, an adult, or a blending of the two. She opted for the latter, warning that if he commits a felony during his time in the juvenile center, he'll automatically be sentenced as an adult.

If the court decides to impose an adult sentence when Harris is 21, he would receive mandatory life without parole on the felony murder charge, 18-40 years on the assault with intent to rob while armed charge and a consecutive sentence of two years for using a firearm to commit a felony, according to the Wayne County Prosecutor's Office.

Of course, the Supreme Court's opinion in Graham only categorically prohibited LWOP sentences for juves who commit non-homicide offenses.  But it seems this case would have been a fascinating Graham follow-up had the judge here decided to impose an LWOP sentence on a 12-year-old killer.

June 17, 2010 in Assessing Graham and its aftermath, Offender Characteristics | Permalink | Comments (26) | TrackBack

"The Impact of Juvenile Transfer Laws on Juvenile Crime"

The title of this post is the title of this notable new empirical paper now available via SSRN.  Here is the abstract:

We analyze the effects on juvenile crime of tougher state laws governing the transfer of juveniles to the adult criminal justice system, including mandatory waiver and statutory exclusion laws. After controlling for other factors that influence juvenile crime and attempting to correct for the endogeneity of the juvenile transfer laws, we find no evidence that any of the transfer laws is negatively related to total juvenile crime, juvenile property crime, or juvenile violent crime. Moreover, we find that statutory exclusion laws and a weighted index of the severity of all transfer laws are both positively related to juvenile property crime.

June 17, 2010 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Tuesday, June 15, 2010

Despite Graham ruling, Florida prosecutors have violent teen on path to LWOP sentence

This local article from Florida, which is headlined "Teen faces adult charge, contrary to high-court ruling," reports on an interesting case stuggling to deal with the aftermath of the Supreme Court's landmark Eighth Amendment ruling last month in Graham. Here are the interesting details:

Prosecutors have decided to try 16-year-old Henry "Peanut" Baker as an adult in the shooting of a Sanford police officer two weeks ago.

That puts him in the cross-hairs of a dispute about what to do with violent juveniles.  If convicted, Baker faces a mandatory sentence of life in prison without the possibility of parole.

But two weeks before his arrest, the U.S. Supreme Court barred that sentence for anyone under 18 who had not committed murder. Ordering a child who was not a murderer to prison with no possibility of release is cruel and therefore unconstitutional, the court ruled.

So what will happen to Baker, who will be charged with attempted murder of a law officer, a crime that carries a sentence that no judge legally can impose?  That is unclear....

Authorities said Baker wounded the young cop during a foot chase.  The suspect disappeared around the corner of an apartment building, and when Worrall rounded the corner, the gunman opened fire from 10 to 12 feet away, the officer said.

The suspect fired three times. Worrall was unscathed after the first two shots, but the third slug hit him under the right arm, above his bullet-proof vest.  He fell to the ground bleeding, and the gunman looked down and pulled the trigger a fourth time, Worrall told reporters last week. That bullet also missed, and the gunman fled, Worrall said....

Chris White, chief assistant state attorney in Seminole County, said Tuesday that his office would prosecute Baker as an adult.  That's because the crime was serious and violent, White said. Baker's prior criminal record also pushed prosecutors toward that decision, White said.

Because Baker is a juvenile, much of his criminal record is a secret, but he's to stand trial in Sanford next week, accused of committing a schoolyard robbery.  In March, according to a Sanford police report, he stole the wallet of a student at Seminole High School and punched him.  Baker has been arrested at least three other times, according to records with the Florida Department of Law Enforcement, and was found guilty in three Ocoee burglaries in 2008.

Bryan Gowdy is the Jacksonville lawyer who convinced the U.S. Supreme Court to vote 6-3 to outlaw life-without-parole sentences for non-murdering juveniles . He said it appears there's only one solution for the Baker case: The Florida Legislature must rewrite the law which he is accused of violating: attempted murder of a law enforcement officer.  That's because the law provides for just one sentence — life without the possibility of parole.

The Legislature also should review and rewrite some if not all of Florida's other laws that allow judges to impose life-without-parole sentences.  "The Legislature should act to bring Florida's sentencing laws into conformity with common sense, the (U.S. Supreme) court's opinion and standards of decency," Gowdy said.  "If they don't act, they're going to tie a judge's hands."

June 15, 2010 in Assessing Graham and its aftermath, Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (9) | TrackBack