Monday, May 17, 2010

Doesn't the logic and language of Graham put juve LWOP for "lesser" homicides on thin ice?

The opinion for the Court in Grahamstates at the outset and stresses in various settings that the ruling is directly applicable only to nonhomicide offenses.  Nevertheless, the logic and language of the opinion puts special emphasis on the diminished culpability of juvenile offenders as a class and on the unique severity of a life without parole prison sentence.  Consider, for example, this paragraph toward the end of the opinion for the Court in Graham:

Terrance Graham’s sentence guarantees he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes. The State has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law. This the Eighth Amendment does not permit.

Obviously, this paragraph mentions that the juvenile defendant's severe LWOP punishment was "based solely on a nonhomicide crime."  Still, if we replace the word "nonhomicide" with, say, "less serious homicide," the paragraph retains all its force.  Consequently, I suspect that lawyers for any and all juvenile offender sentenced to LWOP for a killing that was not first-degree murder may argue that the logic and language of Graham readily extended to cases involving lesser homicides.

I am not sure if there are many (or even any) juvenile killers who are serving LWOP sentences after conviction for homicides that did not qualify as first-degree murder under applicable state law.  I am sure that, if such sentences are currently in place, lower courts are going to have to decide whether and how to give effect or to cabin some of the broader logic and language used by the Court in Graham.

Early posts on the Graham ruling:

May 17, 2010 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Offense Characteristics | Permalink | Comments (6) | TrackBack

Some notable quotables from the opinion of the Court in Graham

Based on my first read of the Supreme Court's Graham opinion, I have a feeling I will be reading the opinion dozens, if not hundreds, of more times; in Graham, there is so much "there there."  Here are just a few of the many lines from just Justice Kennedy's pinion for the Court that jumped out during my first read (with cites left out):

[Our] cases underscore the essential principle that, underthe Eighth Amendment, the State must respect the human attributes even of those who have committed serious crimes....

The concept of proportionality is central to the Eighth Amendment....

Actual sentencing practices are an important part of the Court’s inquiry into consen-sus. Here, an examination of actual sentencing practices in jurisdictions where the sentence in question ispermitted by statute discloses a consensus against its use....

The judicial exercise of independent judgment requires considerationof the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question....

Roper established that because juveniles have lessened culpability they are less deserving of the most severepunishments....  No recent data provide reason to reconsider the Court’sobservations in Roper about the nature of juveniles.  As petitioner’s amici point out, developments in psychology and brain science continue to show fundamental differ-ences between juvenile and adult minds....

The Court has recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms ofpunishment than are murderers....

It follows that, when compared to an adult murderer, ajuvenile offender who did not kill or intend to kill has a twice diminished moral culpability. The age of the of-fender and the nature of the crime each bear on the analysis....

[L]ife without parole sentences share some characteristics with death sentences that are shared by no other sentences. The State does not execute the offender sentenced to life without parole, but the sentence alters the offender’s life by a forfeiture that is irrevocable.  It deprives the convictof the most basic liberties without giving hope of restora-tion, except perhaps by executive clemency — the remote possibility of which does not mitigate the harshness of the sentence....

Incapacitation cannot override all other considerations, lest the Eighth Amendment’s rule against disproportionate sentences be a nullity....

A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime.  What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance.  It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life.  Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives.  The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life.  It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society....

An offender’s age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.

May 17, 2010 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Other than the holdings, what are the biggest "stories" of the Graham and Comstock rulings?

I have barely skimmed the Graham and Comstock rulings, and already I have so many thoughts about the holdings and their potential consequences (especially regarding future non-capital Eighth Amendment litigation).  But, before going too blog crazy, I am planning to head to a local coffee shop so I can read the full opinions without too many distractions and without getting my own views colored too much by what others start saying about these cases.  Yet I wanted to do this quick post to encourage readers to opine on what they think are some of the biggest "stories" emerging from the Graham and Comstock rulings.

My first take concerns the votes and authorship of various opinions in Graham.  First, that Justice Kennedy wrote the opinion for the Court is notable and important for various political reasons, and the fact that Chief Justice Roberts voted for the defendant (in order to make the head-count 6-3) seems to me to be especially notable and important for similar reasons.  Second, that Justice Sotomayor (and not Justice Breyer) joined the separate opinion of Justice Stevens strikes me as notable and important for jurisprudential reasons.

I could go on and make some similar observations about Comstock (which was authored by Justice Breyer with a Justice Kennedy concurrence and a Justice Thomas dissent).  But now I have to actually go read these opinions carefully (and then read whatever readers have to say in the comments) concerning what they think are the most important parts to what the Supreme Court did today.

Early posts on the Comstock and Graham rulings:

May 17, 2010 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Can and should Florida's Governor commute the sentence of Joe Sullivan in light of the SCOTUS Graham ruling?

I will have lots and lots of coming commentary of the Graham ruling ASAP, but I want to start the discussion with some debate over the likely and appropriate fate of Joe Sullivan's sentence.  As this prior post briefly explains, due to procedural complications with his case, Sullivan may not be able to get relief from his LWOP sentence in Florida state courts.  But, in light of the substance of the Supreme Court's Graham ruling, I have to think some folks in Florida should be a bit troubled keeping his sentence in place. 

Consequently, I wonder if Florida's Governor has the authority and the good sense to get Joe Sullivan's case out of the courts by providing relief through clemency.  This issue strikes me as interesting and important not only because of how it impact Sullivan's fate, but also concerning how other juveniles (or others) now serving LWOP sentences might look to use the Graham ruling to support a pitch for clemency in lieu of (or in addition to) making a formal legal Eighth Amendment argument in state or federal court.

UPDATE:  A helpful reader sent me this note in response to my post here:

I wanted to point you to today's order in Sullivan [available here], which as you can see does not mention any procedural bar and is not a procedural ruling.  There was no need to issue a separate decision in Sullivan because Joe Sullivan is entitled to relief under the categorical, retroactive ruling in Graham.

To the extent that it seems clear that Graham ensures that Joe Sullivan will get relief in the courts, my comments in this post about the PR benefits that SCOTUS gets from simply doing a DIG in Sullivan are even more important.

May 17, 2010 in Clemency and Pardons, Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

SCOTUS finds Eighth Amendment problem with juve LWOP in Graham

The Supreme Court has handed down its biggest Eighth Amendment ruling in non-capital cases in a long time, and it is a victory for the defendant.  Here is what SCOTUSblog has to say so far:

The Court, in an opinion again written by Kennedy, rules that it is unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder. The opinion is based on the Eighth Amendment's ban on "cruel and unusual" punishment.

The vote is 6-3, reversing and remanding Graham v. Florida.

Justice Thomas dissents, joined by Scalia and in part by Alito. Alito dissents in an opinion for himself. Justice Stevens concurs, joined by Ginsburg and Sotomayor, even though the three of those Justices also joined the Kennedy majority opinion. Chief Justice Roberts joins in the judgment only. The decision does not cover the Sullivan case.  [Here is] a link to the Graham opinion....

The Court has handed down a per curiam order in Sullivan v. Florida.  The writ of cert. is dismissed as improvidently granted.... Presumably the young person involved in this case, who was 13 at the time he committed his crime, would benefit from the Court's ruling today in Graham....

It is not clear that the 13-year-old, Joe Harris Sullivan, can benefit from the ruling in the case involving Terrence Graham because Florida courts had turned aside Sullivan's Eighth Amendment challenge for procedural reasons.  It will now be up to Florida courts to determine whether Sullivan can now make a new challenge based on the Graham decision.

May 17, 2010 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Sunday, May 16, 2010

"More Mentally Ill Persons Are in Jails and Prisons Than Hospitals"

The title of this post is the headline of a notable and important new report issued this week by the National Sheriffs' Association.  (Hat tip to a helpful reader who forwarded me this item from the Houston Chronicle.)  This press release about the report provides this effective summary:

Americans with severe mental illnesses are three times more likely to be in jail or prison than in a psychiatric hospital, according to "More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of the States," a new report by the Treatment Advocacy Center and the National Sheriffs' Association.

"America's jails and prisons have once again become our mental hospitals," said James Pavle, executive director of the Treatment Advocacy Center, a nonprofit dedicated to removing barriers to timely and effective treatment of severe mental illnesses. "With minimal exception, incarceration has replaced hospitalization for thousands of individuals in every single state."

The odds of a seriously mentally ill individual being imprisoned rather than hospitalized are 3.2 to 1, state data shows. The report compares statistics from the U.S. Department of Health and Human Services and the Bureau of Justice Statistics collected during 2004 and 2005, respectively. The report also found a very strong correlation between those states that have more mentally ill persons in jails and prisons and those states that are spending less money on mental health services.

Severely mentally ill individuals suffering from diseases of the brain, such as schizophrenia and bipolar disorder, often do not receive the treatment they need in a hospital or outpatient setting. The consequences can be devastating – homelessness, victimization, incarceration, repeated hospitalization, and death.

"The present situation, whereby individuals with serious mental illnesses are being put into jails and prisons rather than into hospitals, is a disgrace to American medicine and to common decency and fairness," said study author E. Fuller Torrey, M.D., a research psychiatrist and founder of the Treatment Advocacy Center. "If societies are judged by how they treat their most disabled members, our society will be judged harshly indeed."

Recent studies suggest that at least 16 percent of inmates in jails and prisons have a serious mental illness. According to author and National Sheriffs' Association Executive Director Aaron Kennard, "Jails and prisons are not designed for treating patients, and law enforcement officials are not trained to be mental health professionals."

Ratios of imprisonment versus hospitalization vary from state to state, as the report indicates. On the low end, North Dakota has an equal number of mentally ill individuals in hospitals as in jails or prisons. By contrast, Arizona and Nevada have 10 times as many mentally ill individuals in prisons and jails than in hospitals.

Among the study's recommended solutions are for states to adopt effective assisted outpatient treatment laws to keep individuals with untreated brain disorders out of the criminal justice system and in treatment. Assisted outpatient treatment is a viable alternative to inpatient hospitalization because it allows courts to order certain individuals with brain disorders to comply with treatment while living in the community. Studies show assisted outpatient treatment drastically reduces hospitalization, homelessness, arrest, and incarceration among people with severe psychiatric disorders, while increasing adherence to treatment and overall quality of life.

The full report is available at this link.

May 16, 2010 in Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, May 12, 2010

A failed effort to fake past military service to get a lenient federal sentence

This local article from Vermont, which is headlined "Phony military records surface in Burlington drug sentencing" reports on a remarkable federal sentencing proceeding from earlier this week.  Here are the details:

Leniency in sentencing was denied Monday to a Burlington man convicted of dealing marijuana after federal prosecutors determined he had invented a Vietnam-era Marine Corps career to deceive his probation officer.

Chief U.S. District Judge William Sessions III called claims made by Kimball Manning, 64, outrageous and incredible before sentencing him to 4 1/2 years in prison.

Manning and his wife, Heather Wick Manning, 39, both of whom were indicted in June for trafficking drugs and pleaded guilty in February, were arrested again in March and accused of selling multiple pounds of marijuana while awaiting sentencing for the first offense, Sessions said.  Those allegations are pending in state court -- and they led to the revocation of the couple's pre-sentence release in the federal case.

Sessions granted Heather Wick Manning, who appeared in court Monday after her husband, a delay in sentencing until November, citing the woman's diagnosis with a severe bipolar disorder and her strong family support. Sessions will decide at a May 17 hearing whether she will be released to live under supervision with her mother.

New "non-incarcerative" sentencing guidelines come into effect Nov. 1 that would be ideal for her case, Sessions said.   "In effect, she would be sentenced to treatment," he said.

Kimball Manning's probation officer alerted prosecutors to calendar overlaps between military records and those from Goddard College, which show he was a student at the time, Assistant U.S. Attorney Nancy Creswell said.  U.S. military records official Jeffrey Shattuck, a former Marine, testified Monday that he could find no evidence Kimball Manning served in the Marines, or in any other branch of the military.

At first glance, Manning's typewritten discharge papers appeared convincing, Shattuck said, but they contained close to a dozen errors that "just didn't add up."...  Kimball Manning's attorney, Mark Kaplan, said his client needed "significant mental-health counseling."

May 12, 2010 in Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (4) | TrackBack

Sunday, May 09, 2010

"Rethinking Recidivist Enhancements: The Role of Prior Drug Convictions in Federal Sentencing"

The title of this post is the title of this important new article by Sarah Russell just published in the UC Davis Law Review.  The article analyzes recidivist enhancements based on prior drug convictions from a policy perspective, and also introduces an approach for challenging the application of these enhancements using the Supreme Court's decision in Shepard.  Here is the abstract:

Recidivist sentencing enhancements, which increase criminal sentences for defendants with prior convictions, are a prominent feature of the federal criminal justice system.  This Article considers the policy rationales supporting recidivist enhancements and reexamines them in light of two recent Supreme Court cases, United States v. Booker and Shepard v. United States.   Recidivist enhancements are traditionally justified based on rationales of retribution, deterrence, and incapacitation; proponents justify recidivist enhancements on the theory that people who reoffend are more culpable and more likely to recidivate. There is considerable doubt, however, regarding whether these rationales support the expansive federal enhancements currently tied to prior drug convictions. 

The Supreme Court’s decisions in Booker and Shepard, which provide judges with additional sentencing discretion, allow judges to reexamine these rationales in the cases before them. Booker rendered the sentencing guidelines advisory, and judges may now decline to apply guidelines enhancements on policy grounds.  Shepard limits the types of evidence that a judge may consider in determining whether a prior state conviction triggers a federal sentencing enhancement and allows judges to avoid applying statutory and guideline enhancements in many cases.  Innovative Shepard litigation in the District of Connecticut has recently led to a marked reduction in the number of enhancements based on drug convictions applied by judges in the District.  Judges nationwide can apply this Shepard analysis.  Although rigorous application of Shepard increases sentencing discretion and may lead to more just and effective sentences in individual cases, Shepard can also create sentencing disparities for similarly situated defendants.  Under Shepard, the application of an enhancement may depend solely on factors such as the availability of court transcripts or whether the defendant’s state conviction precisely matches the language of a federal enhancement.  Given the potential for unwarranted disparities — and the serious doubts as to whether the enhancements further any of the purposes of sentencing — Congress and the U.S. Sentencing Commission should reduce the magnitude of enhancements based on prior drug convictions or even eliminate them altogether.

May 9, 2010 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, May 07, 2010

Have the new (proposed) amended federal guidelines had any ripple effect yet?

During the terrific sentencing panel yesterday at the Sixth Circuit judicial conference festivities (basics here), I suggested that the new federal guideline amendments released last Friday by the US Sentencing Commission (basics here) could be like a pebble in a pond with important and highly consequential ripple effects on federal sentencing law and policy.  I stressed my view that the size and significance of this ripple effect would depend greatly on just how practitioners and district judges interpret and give effect to the changes (and especially the vague and open-ended language in changes to the offender circumstances policy statements).

Of course, as discussed in this prior post, Formally, the proposed amended guidelines do not become legally effective until November 1, 2010, and thus I probably should not be looking for any big ripples from the new guidelines until this fall.  But, as explained before, because  the Commission has now formally and functionally indicated its view the provisions of 3553(a) are better served by sentencing in accord with its amended guidelines, a district court could right now probably feel free, and maybe even should feel an obligation, to sentence in accord with this new proposed guidelines ASAP.  Thus, I am using this post to ask for early reports from those in the field about whether any practitioners and/or district judges are seeing or feeling the new (proposed) amended federal guidelines having any ripple effect yet

May 7, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Who Sentences? | Permalink | Comments (3) | TrackBack

Notable variations in state approaches to juve sex offenders

This new AP story, which is headlined "States vary on dealing with youth sex offenders," provides an effective review of the diversity in how different states deal with juvenile sex offenders. Here are excerpts:

When Ricky Blackman was 16, he pleaded guilty to having sex with a 13-year-old girl, and an Iowa judge ordered him to register as a sex offender. But if Blackman had lived in at least a half-dozen other states, his name would never have appeared on a registry because states are deeply divided on how to deal with the nation's youngest sex offenders.

Juvenile justice advocates want rehabilitation instead of registration, yet public safety experts argue children must be protected from predators, even if they are minors. The confusing array of rules for juvenile sex offenders persists despite a vast overhaul that was adopted four years ago to bring clarity and consistency to the nation's sex offender registration laws.

"It's a real bind for the states," said Michele Deitch, an attorney who teaches criminal justice policy at the University of Texas. "Do you want to comply with what could be poor public policy or risk not complying with the federal law? And there's no easy answer."

Twenty-one states currently require juveniles convicted of a serious sex crime to register with law enforcement, according to an Associated Press review of state laws and interviews with state officials.

In 19 other states, only juveniles convicted as adults or who move from a state that requires registration are required to provide their information to authorities. In the remaining states, the laws vary. In Nevada, for instance, a juvenile sex offender can petition a judge to set aside registration requirements.

In 2006, President George W. Bush signed a law requiring states to adopt a series of sex offender measures, including the registration of all juveniles who commit serious sex crimes such as abuse or rape. The law was designed to create a national sex offender registry and toughen penalties for those who fail to register.

Ohio is so far the only state to meet the new federal standards, but states have until July to comply so they can build up their online registries and ensure the information can be incorporated into the national database.

Of the 21 states that require juvenile sex offenders to register, at least four states do not publish all of their details online, such as photographs and home addresses.

Critics said young offenders will be more likely to reoffend because of the humiliation of being labeled a sex offender. "These kids can get better and here you are punishing them for life without offering any treatment. That to me is unethical," said Dr. Valerie Arnold, the interim chief of child and adolescent psychiatry at the University of Tennessee. "Even convicted murderers aren't put on a list like this."

It's unclear how many of the nation's estimated 686,000 sex offenders are juveniles. But a recent study by the University of New Hampshire Crimes against Children Research Center that found more than a third of those who sexually abuse children are juveniles. "It's a difficult balance," said Ernie Allen of the National Center for Missing and Exploited Children. "We're in favor of the rehabilitative ideal and targeting treatment for the youngest offenders, but many of America's offenders are kids — and they are committing very serious sex offenses."...

Those who want juvenile sex offenders on registries acknowledge the requirements are not ideal, but they say the benefits to public safety far outweigh the impact on a juvenile sex offender's psyche.

Supporters often refer to the case of Amie Zyla, who was sexually assaulted when she was 8 years old in Wisconsin by a 14-year-old family friend. She became a leading advocate of juvenile registration requirements when her perpetrator was sentenced to 25 years in prison after pleading guilty to later fondling two teen boys. "The simple truth is that juvenile sex offenders turn into adult predators," she said at a 2005 Congressional hearing. "Kids all over the country need the same kind of protection as in Wisconsin."

Yet there is a wide disparity in how states treat juvenile offenders. In Texas, where judges decide whether to put juveniles on the registry, lawmakers led a push several years ago to make it automatic. But the measure's sponsor, Texas state Rep. Jim McReynolds, said he abandoned the effort after concluding the new requirements would be too costly and may end up harming the juvenile offenders. "The more I began to look at it, the more I saw it was pretty doggone tough on juveniles," said McReynolds, who chairs the House Corrections Committee. He now favors more treatment.

In Maryland, powerful lawmakers are aiming to require those 14 and older who commit rape and other serious sex crimes to register. "Juveniles are treated as adults in other areas of the law," said Delegate Bill Frank of Baltimore County, one of the measure's sponsors. "And if a juvenile commits a first-degree rape, that juvenile should be required to register as a sexual offender."

The challenging question upon reflection is whether we ought to regard the state-by-state differences here as a healthy form of "laboratory of the states" federalism or instead as an unjust form of national sentencing disparity.  Any thoughts dear readers on whether we should be pleased or troubled by the state diversity found regarding juve sex offender law and policy?

May 7, 2010 in Offender Characteristics, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, May 06, 2010

Fascinating political corruption federal sentencing to follow in New York

I will be again off-line most of today with Sixth Circuit judicial conference festivities (basics here), but when I get back on-line I will be eager to report on what happens today in a high-profile political corruption sentencing scheduled for today in New York.  This New York Times piece, which is headlined "Day of Sentencing Looms for Former New York Senate Leader," provides the background:

On Thursday, five months after his conviction on federal corruption charges, Mr. Bruno, 81, who as a former Senate majority leader was once one of the most powerful officials in Albany, will learn his sentence.

His lawyers, citing his years of public service, his good standing in the community and his age, have requested that he be fined but not imprisoned. Prosecutors, arguing that Mr. Bruno exploited his power to enrich himself and abused the public trust, have asked that he be imprisoned for more than eight years.

As the day of his sentencing arrives, Mr. Bruno, who was a generous benefactor to his upstate New York district, has come to terms with his fate, according to those who have spoken with him. “He’s philosophical,” said Stephen R. Coffey, an Albany lawyer who helped raise money for Mr. Bruno’s legal defense fund. “He accepts the fact that he may go to prison.”...

He holds out hope, they say, that the United States Supreme Court, which is reviewing three cases challenging the federal statute under which he was convicted, for depriving constituents of “honest services” by concealing conflicts of interest, will find that it is not valid. “He’s extremely hopeful — no one’s ever confident — about what the Supreme Court will do,” said Mr. Coffey....

Mr. Bruno, who was a Republican senator for 30 years, including 14 as the majority leader, remains revered by many. Letters urging leniency keep arriving at Judge Gary L. Sharpe’s chambers from friends, relatives and former colleagues....

Ultimately, Judge Sharpe has wide discretion in choosing Mr. Bruno’s sentence. Should Mr. Bruno be sent to prison, he would be one of the oldest inmates in the federal system. Out of a total population of 210,159, only 47 are Mr. Bruno’s age or older. Where he would serve a sentence would depend on complex screening conducted by the federal Bureau of Prisons, though authorities generally try to house inmates within 500 miles of their homes.

UPDATE:  According to this AP report, "Joseph Bruno, once one of the most powerful political figures in New York, was sentenced Thursday to two years in prison on two federal fraud counts."

May 6, 2010 in Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, May 03, 2010

NY Gov Paterson creates special pardon panel for legal immigrants

Some helpful readers alerted me to this fascinating news out of New York's Governor's Office, as here reported by the New York Times:

In a major rebuke of federal immigration policy, Gov. David A. Paterson announced on Monday that he would create a special pardon panel to review cases involving legal immigrants who are at risk of deportation for minor or old convictions.

Mr. Paterson’s move will give many immigrants facing deportation renewed hope and places the governor into the middle of the country’s immigration debate.

The announcement comes as the federal government has taken an increasingly hard line in its interpretation of existing immigration law, leaving a growing number of legal immigrants who have criminal records facing deportation.

“Some of our immigration laws, particularly with respect to deportation, are embarrassingly and wrongly inflexible,” Mr. Paterson said in a speech on Monday at an annual gathering of the state’s top judges. “In New York we believe in renewal,” he added. “In New York we believe in rehabilitation.”

State officials say they believe thousands of legal immigrants could fall into the category of cases that they are interested in reviewing.  A new five-member panel made up of existing state employees, called the Special Immigration Board of Pardons, will review the cases.

Now, only a handful of such cases are pending before the Paterson administration, but they anticipate that the creation of the panel will prompt an influx of hundreds of new petitions for pardons.

This official press release from the Governor, which is titled "Governor Paterson Creates Panel to Review Cases of Legal Immigrants Facing Deportation," provides more information about this new pardon development.  Here is a snippet from the press release:

Due to retroactive changes in federal immigration laws in the mid-1990s, there may be thousands of individuals in New York State who entered the United States legally but are now facing deportation for crimes that did not, at the time of conviction, carry the consequence of deportation. In other cases, individuals may have been unaware of the immigration consequences of guilty pleas or convictions for certain crimes.  These individuals may have had convictions many years ago, and federal immigration authorities are seeking to deport them years later when, for instance, they apply for citizenship or to renew their permanent resident status.

In many of these cases, the individual's efforts towards rehabilitation, their years of living in the community without any contact with law enforcement, and the positive contributions they have made to society are not factored into whether the individual will be deported.  In addition, they may be deported to a country they left as a child, where they have no relatives and may not speak the language, and their deportation may tear them away from their United States citizen children or spouse.  As demonstrated by several recent examples, such deportation can cause a significant injustice in particular cases, which can only be remedied by the Governor's exercise of a pardon.

May 3, 2010 in Clemency and Pardons, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Sunday, May 02, 2010

Interesting review of the age of killers and those killed in Alabama

Homicide-defendantsjpg-5e7a6570ddce64ba_large This feature story from the Birmingham News, which is headlined "The killing years: Accused killers in the Birmingham area, and victims, often under age 25," provides an interesting review of the chronological dynamics surrounding those killed and those who are killers in one of Alabama's major urban regions. Here is how the piece starts:

When people are murdered in Jefferson County, chances are the killer was a male under 25 using a gun. More than half of the accused killers in the county were 24 or younger, according to a Birmingham News analysis of homicides from 2006 through 2009. Nine times out of 10, the victims were shot to death.

The percentage of homicides with defendants under age 25 who used guns in Jefferson County substantially exceeds the national average, statistics show.  In Birmingham, where nearly three-quarters of the county's murders occurred, the disparity was even worse from 2006-2009.

Ages 16 through 24 are the killing years here.  That age group comprised 56 percent of the accused killers in Birmingham and 54 percent across the county those four years.

Nationally, 42 percent of the homicide defendants were 17 through 24, according to FBI statistics, which do not break out separate numbers for 16-year-olds.  The 17-24 age group made up 52 percent of the homicide defendants in Birmingham and 50 percent across Jefferson County.

"We're seeing more violence from that age group, more kids with cold hearts," said A.C. Roper, Birmingham's police chief. "Quite often we've heard kids say, 'Well, the victim went to a better place,' and chalk it up as if they were doing God's will or something."

Ages 16 through 24 also are the dying years.  About 16 percent of Birmingham's population is in that age group, but 33 percent of its homicide victims die that young.

"The one issue that has caused me the greatest concern is seeing young men gunned down in the streets by other young men," said Roper, whose 19-year-old brother was murdered while holding his infant son during a 1992 robbery attempt.

May 2, 2010 in Offender Characteristics | Permalink | Comments (4) | TrackBack

Saturday, May 01, 2010

Lots of interesting questions in upcoming sentencing proceeding for hacker of Sarah Palin's e-mail

As detailed in this story from InformationWeek, which is headlined "Hacker Of Sarah Palin's E-Mail Found Guilty: Palin calls violating the law for political gain 'repugnant'," a high-profile federal computer crime case is now ready to shift into a sentencing phase.  Here are the basics:

David C. Kernell, the former University of Tennessee-Knoxville student linked in 2008 to the hacking of Sarah Palin's Yahoo Mail account, was found guilty on Friday afternoon of a felony and a misdemeanor.  A federal jury in Knoxville, Tenn., convicted Kernell, 22, of obstruction of justice, a felony, and unauthorized access to a computer, a misdemeanor.

The jury deadlocked on a charge of identity theft and acquitted Kernell on a charge of wire fraud. The obstruction of justice charge carries a maximum sentence of 20 years. The misdemeanor charge carries a one year maximum sentence. Based on federal sentencing guidelines, Kernell's sentence is likely to be less than two years.

Kernell obtained access to Palin's e-mail account when Palin was running as the Republican candidate for vice president by guessing her password, "popcorn." He then posted screenshots of his findings on an Internet forum.

Wikileaks subsequently posted some of the data that Kernell had obtained, stating that it had done so because "Governor Palin has come under criticism for using private e-mail accounts to conduct government business and in the process avoid transparency laws."

The whistle blowing site posted five screenshots of Palin's Yahoo Mail account, three text files with contact information and related data culled from the account, and two photos of Palin's family. "The list of correspondence, together with the account name, appears to re-enforce the criticism," said Wikileaks.

The case generated intense media interest in part because Kernell is the son of Tennessee Democratic state Rep. Mike Kernell, a link that convinced many Republican supporters that the hack was politically motivated.

In a statement posted to her Facebook page, Sarah Palin expressed gratitude to the jury for its verdict and likened the account break-in to the Watergate scandal.

"Besides the obvious invasion of privacy and security concerns surrounding this issue, many of us are concerned about the integrity of our country's political elections," she wrote.  "America's elections depend upon fair competition.  Violating the law, or simply invading someone's privacy for political gain, has long been repugnant to Americans' sense of fair play.  As Watergate taught us, we rightfully reject illegally breaking into candidates' private communications for political intrigue in an attempt to derail an election."

Though the involvement of Sarah Palin is principally what gives this case its high-profile status, I see lots of interesting and important computer crime sentencing issues raised by this case.  For example:

1.  Does Palin qualify as a victim of David Kernell's crimes under the CVRA so as to provide he with special statutory rights during the sentencing proceedings?  Relatedly, will Palin opine formally about what sort of sentence she wants Kernell to receive?

2.  Should the politics surrounding this matter serve as an aggravating or mitigating factor at sentencing?  On the one hand, illegal hacking for political advantage seems to make these computer crimes, in Palin's words, more "repugnant to Americans' sense of fair play."  But, on the other hand, the important and valid public interest in knowing about public figures perhaps makes "political figure" hacking more understandable.

3.  Should Kernell's age be an aggravating or mitigating factor at his sentencing?  On the one hand, retributivists might argue that he is less culpable because young people these days really do not understand fully the significance of on-line privacy.  But, on the other hand, consequentialists might argue that he should be punished more severely to send an especially strong message to young people about the importance of respecting on-line privacy.

I could go on and on: e.g., is this case one that may uniquely justify prison alternatives and/or shaming sanctions and/or community service?  is the recommended guideline range really likely to speak to any of the special factors involved in this case?  Is it entirely appropriate for Palin to be using Facebook to tell the world how awful she thinks the defendant's crimes are (especially given that he was acquitted on two counts)?

May 1, 2010 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Victims' Rights At Sentencing | Permalink | Comments (6) | TrackBack

Friday, April 30, 2010

US Sentencing Commission posts full text of its significant new guideline amendments

I am very pleased to report that the US Sentencing Commission now has posted on its website the full text of its new "Amendments to the Sentencing Guidelines, Policy Statements, and Official Commentary." Here is how this technical document is officially described:

Pursuant to section 994(p) of title 28, United States Code, the United States Sentencing Commission hereby submits to the Congress the following amendments to the sentencing guidelines and the reasons therefor. As authorized by such section, the Commission specifies an effective date of November 1, 2010, for these amendments.

Though there are a lot of important and interesting aspects to all the amendments, the first five amendments are especially significant and all could be hugely consequential.  Of particular interest because it potentially impacts every federal sentencing proceeding, is the second amendment concerning changes to the language about departures based on certain offender characteristic.  Specifically, the proposed amendment eliminates the guidelines long-standing assertion that certain key offender characteristics are "not ordinarily relevant" to a departure decision.  Now, as this document explains:

As amended, these policy statements generally provide that age; mental and emotional conditions; and physical condition or appearance, including physique, "may be relevant in determining whether a departure is warranted, if [the offender characteristic], individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines."

Though arguably not too much more than a tweak in how the guidelines call for these offender characteristic to be considered, I suspect many (all?) defense counsel and some (many?) sentencing judges will view this tweak to be very significant in some (many? all?) cases.

April 30, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Who Sentences? | Permalink | Comments (4) | TrackBack

Federal prosecutors now seeking 25-year prison term for Rubashkin

This AP article, which is headlined "25-year term sought in Iowa slaughterhouse case," provides a recap of the conclusion of the two-day sentencing hearing in a high-profile white-collar case in Iowa. Here are some of the details:

Prosecutors asked a federal judge on Thursday to sentence a former kosher slaughterhouse executive to 25 years in prison, less than the life sentence they have said they were entitled to request.

Former Agriprocessors Inc. manager Sholom Rubashkin, who was convicted of 86 counts of financial fraud in November, gave a tearful, halting speech at the end of his sentencing hearing in U.S. District Court in Cedar Rapids. He was charged following a May 2008 immigration raid at the former Agriprocessors slaughterhouse, where 389 workers were arrested on immigration charges.

Rubashkin told the court he had made mistakes and was remorseful. In a thick Brooklyn accent, he reiterated that he was sorry for his actions, and that he was put in a position by his family of running the operations of a large plant for which he had no training or interest....

Prosecutors had added up the charges in pre-sentencing documents and the total came to a life sentence. But assistant U.S. Attorney Pete Deegan said Thursday in court that the government would seek 25 years and not life, which is "usually reserved for violent criminals."

"Here you have a defendant who had everything: family, love and support," Deegan said. "And he's asking for a lesser sentence because of it."

Defense attorney Guy Cook, who had requested a six-year sentence, said the request for 25 years would essentially be a life sentence for the 50-year-old Rubashkin. Cook asked that he serve it at a facility in Otisville, N.Y., which better caters to the needs of Hasidic Jews. "He only has about 25 or 26 years left on this earth," Cook said. "Twenty-five years is a life sentence."

U.S. District Court Judge Linda Reade says she'll issue a ruling on May 27....

Deegan said there were many victims in the case: the banks who lost money to Rubashkin because of the fraud, the cattle sellers who had to take out loans to avoid closure, and the citizens of Postville, who watched their largest employer fall into bankruptcy and their town's economy crumble. Deegan said Rubashkin wasn't some far-removed corporate officer who "sets (fraud) in motion," but rather a hands-on executive who personally broke the law and directed others to do the same.

But Cook said he had gotten to know Rubashkin since he took on the case, and found him to be a deeply religious man who put the needs of others in front of his own. "It was not a Ponzi scheme, it was not a Madoff scheme," Cook said. "He made mistakes and he compounded those mistakes. And he felt trapped and didn't know how to get out."

Related posts on the Rubashkin case:

April 30, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (9) | TrackBack

Wednesday, April 28, 2010

Federal district judge rejects corporate plea deal

This New York Times story, which is headlined "Judge Rejects Plea Deal on Guidant Heart Device," reports on an interesting development in a notable federal corporate prosecution. Here are the basics:

A federal judge in Minnesota on Tuesday rejected a plea agreement between the federal government and the Guidant Corporation, saying that the deal did not hold the company sufficiently accountable for an episode in which it sold potentially flawed heart defibrillators.

The ruling was a setback for the Justice Department, which had characterized the agreement as a demonstration of its get-tough approach to corporate crime. The deal called on Guidant to plead guilty to two misdemeanors and pay a $296 million fine, described as the largest by a medical device company.

But in his opinion, the judge, Donovan W. Frank of United States District Court said the provisions of the agreement were “not in the best interest of justice and do not serve the public’s interest because they do not adequately address Guidant’s history and the criminal conduct at issue.”

The case results from disclosures in 2005 that Guidant did not alert doctors and patients that some of its defibrillators had a defect that might cause them to fail when needed to interrupt an erratic and possibly fatal heart rhythm. At least six patients who got the devices died.

Judge Frank said that prosecutors should have sought probation for Guidant and its parent, Boston Scientific. Probation would have required the companies to take certain steps, like helping to rebuild public confidence in the safety of heart devices, in addition to paying a fine.

The judge also outlined other provisions that might be suitable in a new plea deal, including charitable activities by Guidant to improve heart device safety and improve medical care among minority patients.

After a hearing this month, several doctors and patients wrote to Judge Frank urging him to reject the deal and arguing that former Guidant executives should be criminally charged in the case. But Judge Frank noted in his ruling that it was up to prosecutors, not a court, to decide who should be prosecuted....

At the hearing this month before Judge Frank, both government prosecutors and a Guidant lawyer testified that the deal was fair. Also, under questioning by Judge Frank, prosecutors defended their decision not to seek probation, saying it was not necessary because, among other things, the company created to enter Guidant’s plea, Guidant LLC, existed only on paper.

In his ruling, Judge Frank took direct aim at that argument, suggesting it contradicted the Justice Department’s own public statements about the case. He noted that a department news release said Guidant’s plea deal was “about accountability.” Judge Frank wrote, “The interests of justice are not served by allowing a company to avoid probation simply by changing their corporate form.”

The judge also noted complaints by others, including Dr. Hauser and Dr. Maron, that Guidant had violated the law in the past without much consequence and that Boston Scientific, while not responsible for Guidant’s behavior, could still be held accountable. “The court believes that a period of probation would likely benefit, rather than harm, Guidant and Boston Scientific’s public image,” he wrote.

April 28, 2010 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, April 25, 2010

Tough in juves, but very soft on repeat drunk drivers in Florida

If one only follows the docket of the Supreme Court, where the Justices are now considering the constitutionality of two Florida life without parole sentences for teenagers who did not kill, one might think that Florida is the toughest sentencing state in the nation.  But as documented by this local article, which is headlined Lee "County drunken drivers get plenty of shots: Repeat offenders are undeterred," even recidivist drunk drivers get mere slaps on the wrist in Florida.  Here are some of the details:

The penalties for being convicted of driving under the influence has not stopped almost 10,000 Lee County motorists from committing the crime twice or more. Some were so undeterred, they drove drunk again the same year they were convicted of an earlier DUI charge.

In 2009, 24 drunken or high drivers were convicted, then arrested for another DUI — some within a week of each other. Two others picked up their 10th DUI charge last year.

The number of repeat drunken drivers worries local judges and prosecutors, but sentences focus on rehabilitation and prevention instead of lengthy jail time. That likely won’t change soon. Any proposal that would send more people to jail or prison would probably be rejected in the Legislature because of budgetary concerns, one state senator said.

“Any bill that has a fiscal impact — more prison beds — is dead on arrival,” said Sen. Dave Aronberg, D-Greenacres. “If you tighten the penalties, it won’t go through.”...

Some believe rehabilitation and treatment are key to addressing substance abuse. Incarceration is guaranteed to keep drunken drivers off the streets and the Lee County Jail offers substance abuse programs, but being locked up may not address inmates’ alcohol dependency.

A study of 353 DUI court defendants by The Century Council, a nonprofit anti-drunken driving organization, revealed 80 percent said they believe more severe sanctions for their first drunken-driving conviction would have prevented subsequent arrests and convictions.

Lee County judges John Duryea Jr. and James Adams said they recognize letting off a defendant with a light sentence could lead to them being back on the road, possibly endangering others.

In Lee County last year, alcohol was involved in 611 crashes and 21 traffic fatalities, according to preliminary statistics from the Florida Highway Patrol. From 2004 to 2008, an average of more than 22,000 alcohol-related crashes were reported statewide, while about 1,100 people die in alcohol-related accidents each year in Florida.

Florida legislators have changed the law year after year, Duryea said, by doubling and tripling fines, making probation mandatory and lowering the requirement of the ignition interlock device — a device that requires a sober person to blow in order to start a vehicle — from a blood-alcohol level of .20 to .15 on first offense.  The device is required for those convicted of two or more DUIs.

“They’ve probably significantly changed that statute every year since I’ve been a judge,” Duryea said. “I think the trend is to get harder penalties, absolutely.”

Of the 24 convictions of three-time offenders in 2009, 19 were charged with felonies. Eighteen of the 24 were convicted as charged, instead of a lesser charge, and the average stay behind bars was a little more than four months. Two who were charged with misdemeanors weren’t sentenced to any incarceration.

I am pleased to learn that Florida is getting tougher on drunk drivers and that ignition interlock devices are to be used more.  But the contrast here to Florida's tough treatment of juvenile offenders still sticks in my mind.  I am certain that teenagers do not kill 1,100 people each year in Florida, and I would bet they do not even kill more than 100 people each year.  And yet Florida is eager to defend its authority to lock up certain kids and throw away the key at the same time that they keep giving the keys back to drunk drivers who pose a much larger threat to innocent life.

April 25, 2010 in Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (12) | TrackBack

Friday, April 23, 2010

Comdemned battered female murderer raising interesting issues in Tennessee

This notable new local editorial, which is headlined "Bredesen holds complex case; Gaile Owens poses a challenge: Abuse and a co-defendant figure into the fate of a Bartlett woman who hired her husband's killer," spotlights a capital case and debate worth watching in Tennessee. Here are the details:

Gaile Owens, facing trial for the murder of her husband, and co-defendant Sydney Porterfield were offered a deal by a Memphis prosecutor in January 1986: Plead guilty and you won't be executed.

But they both had to agree to it or the bargain was off, and Porterfield refused. Consequently they both went to trial, and Owens may become the first woman to be executed in Tennessee since 1820. She could also be the first woman in America to be executed for a crime committed under the influence of battered woman's syndrome.

Those are among the issues that should factor into the decision before Gov. Phil Bredesen -- whether or not to allow her execution to go forward.  Of course, Bredesen must also consider the brutality of the crime to which Owens, 57, has confessed -- hiring Porterfield to kill her husband.

Ronald Owens was beaten to death with a tire iron in the couple's Bartlett home, a crime that has surely earned Owens a life sentence without parole at least.

Bredesen's decision will stir up passions on both sides, as well as the inevitable comparisons with Mary Winkler, who served less than a year for the 2006 slaying of her husband, Rev. Matthew Winkler of Selmer.

Like Winkler, Owens exhibited symptoms of battered woman's syndrome, a condition described by Memphis psychologist Dr. Lynn Zager, who interviewed her, as "characterized by dominance and control exerted by the husband over the wife, leading to increased entrapment of the wife, or what is called 'learned helplessness.'"...

Owens has maintained that she didn't testify at her trial and never raised the mistreatment defense in order to protect two young sons from the truth about their father's behavior.

Her initial agreement to plead guilty to the offense in exchange for a life sentence supports the claim.  Her co-defendant's refusal to accept the deal turned out to be a mistake -- Porterfield is on death row, as well -- over which Owens had no control.

Nevertheless, Owens has exhausted her legal challenges to the death penalty, and Tennessee has set a Sept. 28 execution date.

With the stroke of a pen, Bredesen can change that. Whatever he does, it will be greeted by second guessing among people who should be grateful their hands don't hold the pen.

So, dear readers, how about giving Gov. Phil Bredesen some help with this tough decision.  Should he grant clemency to Owens?  I am already prepared to predict that he will, but I want to hear comments about whether folks think he should.

April 23, 2010 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, April 22, 2010

Interesting discussion of state juve bind-over procedures

This local piece out of Denver, which is headlined "Children behind bars: Why Colorado is trigger-happy when it comes to sentencing kids like Alan Sudduth as adults," provides an interesting discussion of concepts with allowing state prosecutors to unilaterally decide when to try juvenile offenders as adults.  Here is an excerpt:

The state's current direct-file system was a response to growing concerns about crime in the 1990s, says Kim Dvorchak, chair of the Colorado Juvenile Defender Division.  "What had been happening before was that when a child committed a serious crime, the DA would have to petition the juvenile court judge to waive jurisdiction and send the case to adult district court," she says.  "In the 1990s, crime went up and the judicial transfer process was perceived as cumbersome.  You had to have a hearing.  There were defense lawyers involved and they might get evaluations and evidence.  It was like a mini-trial."

So to get tough on crime, the Colorado Legislature passed a series of laws that allowed prosecutors to bypass judicial hearings and direct file kids fourteen and older for class 1 or class 2 felonies and other crimes.  That gave DA's offices widespread new authority, says Dvorchak. "The direct-file statute relieves a prosecutor of having to prove the child is no longer amenable to treatment in the juvenile system," she explains.  "Even when prosecutors are seeking the death penalty, they have to give notice.  It's a separate sentencing hearing, and a jury decides whether or not to impose the death penalty.  Even that level of due process is absent from the direct-file statute."

Colorado isn't unique in having direct-file laws.  Fourteen states allow district attorneys to direct file kids as adults, something often referred to as judicial waiver.  Some states have even passed mandatory waiver laws, meaning that kids over a certain age accused of first-degree murder have to be charged in adult court, no matter what defense attorneys or prosecutors might say.

But Colorado is unique in one regard, says Dvorchak: "We have no ability to return kids to juvenile court.  The majority of other states that have direct-file or mandatory waiver laws give the child an opportunity to challenge adult-court jurisdiction either at pretrial or at sentencing.  As Colorado's direct-file statute currently stands, there is no provision that allows defense attorneys to challenge the prosecutors' decision that a child should be subject to adult laws instead of juvenile laws."

And that's a problem, says Dvorchak, because once such a decision is made, it can have drastic consequences on the kids involved.  For one thing, as part of a direct file, the prosecutors can decide the youth should stay in adult jail pending the conclusion of the trial. Since these jails don't have separate facilities for juveniles and the kids can't be mixed in with the older inmates, that often means the youths are subjected to 23- or 24-hour cell lockdown. There are often few of the recreation and education opportunities available at juvenile facilities, and the young inmates aren't allowed contact visits with their families.  "The conditions are almost like death row," says Dvorchak.  "They have worse conditions than the adults."

Over the past couple of years, there have been two prominent examples of teenagers committing suicide while incarcerated in local adult jails, one in Pueblo and one in Denver. Dvorchak says there are also major problems with sending kids through court proceedings designed for adults. "Reports have found that prosecuting children in adult court increases recidivism," she says. "Children's experiences going through the adult court proceedings are so negative. In juvenile court, it's a much friendlier atmosphere.  Most people in the juvenile court system are interested in rehabilitating these kids, getting them on the right track.  That's not what happens in adult criminal court. It's a much more sterile environment."

April 22, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack