Friday, December 04, 2009

Distinct headlines report on 50th execution in United States in 2009

Texas completed late yesterday the 50th execution in the US in 2009, and this morning's news headlines reveal the different ways in which local and international media describe this event:

December 4, 2009 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (4) | TrackBack

Repeat offender gets state sentence of 100 years for possessing child porn and pot

While closely following the debates and disparities in federal sentences for downloading child porn, I keep thinking and wondering about whether and how these offenses are being prosecuted and sentenced in state court.  Thus this local article, headlined "Slidell man sentenced to 100 years in prison for possessing child porn," concerning a Louisiana sentencing caught my attention this morning.  Here are the details:

A 43-year-old Slidell man on Thursday received 100 years in prison for possessing child pornography and about a pound of marijuana. State Judge William "Rusty" Knight sentenced Andrew Galatas under stiffer sentencing guidelines after Knight determined that St. Tammany Parish Assistant District Attorney Scott Gardner had sucessfully labeled Galatas a habitual offender.

None of the images was of local children and Galatas had not taken any of them himself, only downloaded them off the Web, authorities said. A 12-member St. Tammany jury had found him guilty on Nov. 10 as charged of the two possession charges.

Although pornography involving juveniles carries a maximum term of 10 years in prison, Galatas has other felony convictions on his record so could be considered a habitual offender. He has molestation of a juvenile and a sexual battery charges from 1997, a possession of stolen property over $500 charge in 1996 and an issuing worthless checks over $100 charge from 1995.

December 4, 2009 in Offender Characteristics, Sex Offender Sentencing, State Sentencing Guidelines | Permalink | Comments (14) | TrackBack

Tuesday, December 01, 2009

Prior military service as a sentencing mitigator gets a big boost from SCOTUS

Long-time readers know that I have long discussed the notion that prior honorable military service could and perhaps should serve as a reason to reduce a sentence (see, for example, prior posts here and here).  As Lyle Denniston notes here at SCOTUSblog and as a bunch of major media articles also spotlight, the Supreme Court's summary reversal via this per curiam opinion in Porter v. McCollum (08-10537) gives considerable conceptual and constitutional heft to the idea of military service as a mitigating factor at sentence.  This passage from Porter in particular likely can and should be used by many veterans in many sentencing proceedings:

Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.  Moreover, the relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.

Because Porter is a death penalty case, some will surely wish to contend that its discussion of "according leniency to veterans" ought only to be consequential in capital cases.  But I do not think the Supreme Court wants this pro-veteran sympathy to be confined only to capital cases, and I am certain that at least some veterans facing sentences other than death will be eager to cite Porter in many other settings.

December 1, 2009 in Death Penalty Reforms, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (12) | TrackBack

Monday, November 30, 2009

How will Mike Huckabee clemency grant to suspected cop killer impact crime and justice debates?

As this CNN article explains in its morning coverage of a still-developing crime story, former Arkansas Governor Mike Huckabee has a notable place in backstory of a suspected cop-killer:

The suspect in the fatal shooting of four police officers kept authorities at bay early Monday -- seven hours after a massive manhunt tracked him to a house in an east Seattle neighborhood.

Authorities had been looking for Maurice Clemmons in connection with an "ambush" Sunday morning at a coffee shop near Tacoma in Pierce County. Four officers -- three males, one female -- died in the attack. Authorities early Monday started identifying Clemmons as a suspect, rather than as someone wanted for questioning, a change that they did not explain.

About 8 p.m. Sunday, police received word that Clemmons had holed up in a home in the Leschi neighborhood. Police blocked off streets and asked residents to stay inside with their doors locked.

Clemmons is a convicted criminal with a long rap sheet who had a 95-year prison sentence commuted in 2000 by then-Arkansas Gov. Mike Huckabee, said Pierce County sheriff's spokesman Ed Troyer. Huckabee, a Republican presidential candidate in 2008, is considering a run for president in 2012. "Should [Clemmons] be found responsible for this horrible tragedy, it will be the result of a series of failures in the criminal justice system in both Arkansas and Washington state," Huckabee's office said in a statement Sunday night.

It perhaps goes without saying that this high-profile event, like the infamous Willie Horton ads two decades ago, could further contribute to giving all clemency grants a very bad name and likely will make governors and presidents even more skittish about how they use their clemency power. Of course, maybe this is how it should be if governors and presidents are seriously considering granting clemency regularly to defendants with a risk profile that seems as significant as the defendant's in this tragic case.

November 30, 2009 in Clemency and Pardons, Offender Characteristics, Who Sentences? | Permalink | Comments (38) | TrackBack

"Why the Prior Conviction Sentencing Enhancements in Illegal Re-Entry Cases are Unjust and Unjustified (and Unreasonable Too)"

The title of this post is the headline of this new article by Doug Keller now available via SSRN. Here is the abstract:

This article discusses an important sentencing issue that affects thousands of lives each year that has nevertheless received little scholarly attention: the harsh prior-conviction sentencing enhancements defendants can receive in illegal re-entry cases—and only in illegal re-entry cases.  The Sentencing Commission created and then sculpted the enhancements through a perfunctory process that radically altered illegal re-entry sentencing, shifting the focus from the defendant’s current offense to the status of his worst prior conviction. Depending on the nature of the prior conviction, a defendant can see his base offense level of 8 swell by 4, 8, 12, or 16 levels.  In concrete terms, that means a defendant can see his sentence increase by 1 to 8 years—costing taxpayers up to $200,000—because of a single prior conviction that could have occurred years or even decades ago. Indeed, a defendant who qualifies for the enhancement will often spend more time in federal prison for his prior conviction (under the guise of being punished for illegal re-entry) than he spent in prison originally for the prior conviction.  No other federal crime is punished based primarily on what the defendant previously did.  And the crimes that trigger the 16-level increase are not the worst of the worst, as simple assault (throwing a rock at a car), minor threats (“Give me $10 or I’ll key your car”), and petty property damage (causing $35 worth of damage to another’s property with a match) can trigger the 16-level increase.  That means that a rock thrower can receive the same enhancement as a terrorist, child molester, murderer, or rapist.

Despite the unusual nature of the enhancement, the Commission has never provided a justification for it, nor is one apparent.  Moreover, the enhancement undercuts Congress’s goal of reducing sentencing disparity and mandate sentences that are disproportionate to the crime of illegal re-entry.  This article argues that this regime must come to an end. While courts were previously powerless to do anything about the Commission’s indiscriminate decision making, that is no longer the case. Since the Supreme Court held that the Guidelines are not mandatory (fixing a constitutional defect), courts must now evaluate the reasonableness of the Guidelines themselves before imposing a sentence.  Even a cursory examination of the prior-conviction enhancements shows that they are unreasonable and should not be followed, even in the typical case.

November 30, 2009 in Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (4) | TrackBack

Monday, November 23, 2009

Atkins, juves and rules versus standards in the Eighth Amendment jurisprudence

The latest Sidebar feature from Adam Liptak in the New York Times has an interesting little discussion of rules and standards in the development of the Eighth Amendment jurisprudence.  The piece is headlined "Bright Lines Blur in Juvenile Sentencing," though it discusses post-Atkins litigation concerning mental retardation as much as it discusses juve sentencing.  Here are excerpts from the piece:

Here is an example of a rule, established by the Supreme Court in Roper v. Simmons in 2005: If you commit murder even hours before your 18th birthday, you cannot be put to death for your crime. The same killing a few hours later may be a capital offense. The court drew a bright-line rule at 18.

Here is an example of a standard, one proposed by Chief Justice John G. Roberts Jr. this month at Supreme Court arguments over whether juvenile offenders may be sentenced to life without the possibility of parole: Why not, the chief justice asked, interpret the Eighth Amendment’s ban on cruel and unusual punishment to require sentencing judges to consider the defendant’s age on a case-by-case basis?

“If you do have a case where it’s the 17-year-old who is one week shy of his 18th birthday and it is the most grievous crime spree you can imagine, you can determine that in that case life without parole may not be disproportionate,” Chief Justice Roberts said.  “If it’s a less grievous crime and there is, for example, a younger defendant involved, then in that case maybe it is disproportionate.”...

Proving age is pretty straightforward, and inmates who were under 18 when they committed the crimes that sent them to death row promptly had their sentences commuted after the court’s decision in Roper.  The Atkins decision, on the other hand, “has spawned extensive, intricate and bitterly contested litigation,” Carol S. Steiker and Jordan M. Steiker wrote in the DePaul Law Review last year....

A new study from three law professors at Cornell, one that resonates with potential lessons for juvenile life without parole, shows that states making case-by-case determinations have taken wildly different approaches.

The study, conducted by John H. Blume, Sheri Lynn Johnson and Christopher Seeds, tried to collect all determinations concerning retardation in capital cases in the six years after Atkins, finding 234.  That means about 7 percent of the nation’s roughly 3,200 death row inmates have claimed to be mentally retarded.

Nationwide, the claims have succeeded about 38 percent of the time. But state success rates vary widely.  North Carolina courts heard 21 Atkins claims and ruled in the inmate’s favor 17 times. Alabama courts heard 26 claims and ruled for the inmate 3 times.

Recall that the Supreme Court said an IQ of “approximately 70” should usually satisfy the first part of the test.  In Alabama, Mississippi and Texas, four inmates with IQ scores of 66 and 67 were held not to be retarded.  But in Pennsylvania, an inmate whose score ranged from 70 to 75 won an Atkins claim.  In California, a score of 84 did the trick.

Professor Johnson said there was a lesson here. “If you look at Atkins, which is supposed to be a categorical rule but has some play in the definitions, you get enormous pushback from the states that don’t want to do it,” she said.  Were the court to adopt Chief Justice Roberts’s approach for juvenile life without parole, she added, “the problem of Atkins’s application would be greatly magnified.”

November 23, 2009 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, November 18, 2009

The special criminal justice and sentencing challenges of domestic violence

My local paper, the Columbus Dispatch, has run a terrific series of articles on the social problems of domestic violence.  Today's piece in the series, which is headlined "Time for change: Lawmakers call for holistic approach to domestic-violence laws; other states offer solutions," thoughtfully covers legal issues that ought to be of special interest to sentencing fans.  Here are snippets:

No state has found the perfect mix of laws and policies to adequately punish abusers and protect victims of domestic violence.  But there are models of success -- innovative approaches to addressing a long-standing societal issue.

Those most involved with the problem in Ohio say the state's laws, while not the worst, pale in comparison to those in some other states.  For example, at least nine states say that domestic violence can be a felony charge on the first offense.  Ohio does not allow for a felony on the first offense.

Ohio House Speaker Armond Budish, D-Beachwood, said he would be open to taking a holistic approach to fixing flaws in state law regarding domestic violence. "We need to do more to protect victims of domestic violence," Budish said. "We should be looking at whether there are adequate penalties for repeat offenders.  Clearly, there comes a time when a repeat offender needs to be punished more severely than a slap on the wrist."   Budish said he also supports two existing bills in the Ohio legislature that would provide protections for teenagers and other victims.

The best way to break the cycle, experts say, is an overall approach in which the needs of victims, children, police, prosecutors, judges, batterers, advocates and society as a whole are met.  "You have to take domestic violence seriously as a crime," said Abigail Wexner, founder of the Columbus Coalition Against Family Violence.  "People can't get away with beating or threatening a stranger; they shouldn't be able to get away with doing it to someone in their home."

This idea of a "holistic approach to domestic-violence laws" gets me thinking about the restorative justice movement in the arena of punishment theory.  Indeed, I think the restorative justice movement perhaps ought to give special attention and concern to the pervasive problems of domestic violence, which seems to be an important area where traditional crime and punishment approaches have often been largely ineffective.

November 18, 2009 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Monday, November 16, 2009

A final take on a record-setting federal corruption sentence

This Roll Call article, whic is headlined "Jefferson’s Sentence Is a Record-Setter," provides some post-game commentary on this past Friday's federal sentencing of William Jefferson.  Here are a few highlights:

A freezer full of cash made ex-Rep. William Jefferson a national punch line, and a federal judge on Friday made him a record-holder: The 13-year prison sentence given to the Louisiana Democrat is the longest ever handed down to a former Member of Congress....

Ex-Rep. Duke Cunningham (R-Calif.), who pleaded guilty in March 2006 to accepting more than $2.4 million in bribes from defense contractors, as well as tax evasion and fraud, is serving an eight-year, four-month sentence in a federal penitentiary in Tucson, Ariz.  Prior to Jefferson’s sentencing, Cunningham had the distinction of receiving the longest prison term for a former lawmaker. He is scheduled to be released in June 2013.

At least three other former House Members have also completed their terms of incarceration in federal prisons in the past year or so, including ex-Reps. Jim Traficant (D-Ohio), Bob Ney (R-Ohio) and Frank Ballance (D-N.C.)....

In court documents, [defense lawyers] cited a litany of other previously incarcerated lawmakers, part of an effort to limit Jefferson’s term to no more than 10 years.... [But] federal prosecutors recommended Jefferson receive a prison term of up to 33 years, asserting his “crimes against the people of the United States were exceptional in their sheer number, length, and breadth.”

In addition to all its political dimensions, this case also spotlights the distorting nature of the federal sentencing guidelines and post-Booker sentencing statistics.  Though Jefferson received a record-setting long sentence and is now scheduled to be incarcerated until he turns 75-years-old, his sentence will be recorded as a below-guideline Booker variance in which the judge gave a sentence less than half as long as what was recommended by the guidelines.  In other words, in a post-Booker world with inflated federal sentencing guidelines, even a record-long sentence is coded as very lenient.

November 16, 2009 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (2) | TrackBack

Thursday, November 12, 2009

Ballon Boy parents cut plea deals providing for probation sentence

As detailed in this new report from CBS News, "Richard and Mayumi Heene will plead guilty Friday to charges stemming from last month's Balloon Boy hoax, the couple's lawyer said."  Here are more of the specifics:

Mayumi Heene will plead guilty to falsely reporting to authorities, a misdemeanor.  Richard Heene's charge — attempting to influence a public official — is a felony.  The deal stipulates a probation sentence for both charges. The deal avoids more serious felony charges against Mayumi Heene, such as perjury, that could result in her deportation to Japan.

"Upon reviewing the evidence, arguably, Mayumi could have possibly ended up being deported and Richard could have proceeded to trial and had a good chance at an acquittal," lawyer David Lane said.  "This, however, would have put the family at grave risk of seeing a loving, caring, compassionate wife and mother ripped from the family and deported. That was not an acceptable risk, thus these pleas."

CBS News legal analyst Andrew Cohen said the deal "makes sense for both sides, especially given the cost of a trial and the risk that the mother involved here would have been deported and separated from her children. So I’m not surprised at all that this ends with a whimper and not a bang."  Cohen notes the judge doesn't have to accept the plea deal and could alter its terms.

Any and all wanna-be sentencing judges among readers are welcomed and encouraged to indicate ad explain whether and why they would accept or reject these plea deals.

November 12, 2009 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack

Tuesday, November 10, 2009

Prosecutors seeking long prison term for ex-Rep. William Jefferson

As detailed in lots of media coverage, federal prosecutors are seeking a long prison term for former US Representative William Jefferson following his bribery convictions.  Yet, as these different headlines from different press sources reveal, it is not perfectly clear how long a prison term prosecutors are seeking:

I suspect this variation in reporting is a result of the government's guidelines, which prosecutors are likely stressing because they produce a range of 324-405 months of recommended imprisonment.

The piece from The BLT reports on how Jefferson's lawyers are countering the prosecution's sentencing recommendations:

Jefferson’s lawyers issued their own sentencing memorandum ... asking for a sentence of less than 10 years.  The memo notes that no member of Congress has ever been sentenced to more than 100 months in prison, and that other sentences in the Jefferson investigation have been less than a decade.

November 10, 2009 in Celebrity sentencings, Offender Characteristics, White-collar sentencing | Permalink | Comments (6) | TrackBack

Monday, November 09, 2009

Chief Justice apparently taking command in the Graham and Sullivan juve LWOP cases

This early report from SCOTUSblog, which is titled "Analysis: The Chief leads on juvenile sentences?," concerning on this morning's arguments in the big juve LWOP cases argued this morning heightens my expectation and hope that we could get some interestingly different line-ups in the decisions in these cases.  Here is the start of Lyle Denniston's analysis:

Chief Justice John G. Roberts, Jr., made a strong — and repeated — effort on Monday to recruit a majority of the Supreme Court in favor of giving juveniles more chance to use their age to challenge life-without-parole prison terms, as an alternative to a flat constitutional bar against ever imposing that sentence.  With a number of Justices wondering where to draw an age line if the categorical approach were used, the Chief Justice’s initiative seemed to have a good chance of gaining adherents as the Court heard Graham v. Florida (08-7412) and Sullivan v. Florida (08-7621).

Interesting.....!  And more commentary on this front to follow when I get a chance to consume the transcripts in these cases late tonight.

A few older CJ Roberts-related posts and some newer posts on the Graham and Sullivan cases:

November 9, 2009 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Watching and wondering about the three SCOTUS newbies in Graham and Sullivan juve LWOP cases

As mentioned in this recent post, I am expecting (or at least hoping) that the big Graham and Sullivan SCOTUS cases to be argued this morning will not simply turn on Justice Kennedy as a swing voter in another 5-4 split.  I make this prediction in part because I am expecting (or at least hoping) that the three most recent additions to the Supreme Court could provide some new perspectives and some unexpected excitement in these cases.

I suspect lots of folks will be watching closely during Graham and Sullivan the newest member of the Supreme Court, Justice Sotomayor, because these juve LWOP cases are probably the highest profile constitutional criminal cases that SCOTUS will consider this year.  And, while watching Justice Sotomayor, I will be wondering especially about whether she is uniquely attentive to and uniquely concerned about the racial, ethnic and class disparities that often play a role in harsh juve sentencing realities in many states.

But, when I get a chance to read the Graham and Sullivan transcripts, I am going to be especially watching for any "tells" from Chief Justice Roberts and Justice Alito.  In most major death penalty and police practice cases, CJ Robers and Justice Alito have tended to favor broad government power (especially Justice Alito).  But the issues in Graham and Sullivan do not arise in settings in which prior rulings by the Warren and Burger courts have previously curtailed government authority.  Rather, Graham and Sullivan raise hard (and conceptually under-developed) questions about how federal courts are supposed to give meaning and content to the Eighth Amendment's prohibition on "cruel and unusual punishments" in non-capital settings.  Though CJ Robers and Justice Alito may not bring new jurisprudential perspectives in these cases, I am sure hoping they might.

Of course, SCOTUS watchers surely should keep an eye on the other six Justices in Graham and Sullivan.  The veryyoung age at which Joe Sullivan was given an LWOP sentence might even impact how Justices Scalia and Thomas look at the case, and the repeat and serious nature of Terrence Graham's crimes might impact how Justices Breyer, Ginsburg and Stevens sort through these issues.  And, Justice Kennedy could still be a key "swinger" in both Graham and Sullivan despite my speculation and hope that these cases do not fully turn on his constitutional instincts.  Indeed, Justice Kennedy may be the most interesting to watch because he authored the two most pertinent precedents in Roper and Harmelin.

I could go on and on and on about these cases because they implicate are sooooo many interesting matters of constitutional jurisprudence and sentencing policy.  (For example, I could do a number of posts simply concerning the decision by Obama's Justice Department to sit on the sidelines for this critically important issue).  But, upon completing this post, I think I am going to await having the chance to read the argument transcripts before saying more about Graham and Sullivan.

A few different older and newer posts on issues related to the Graham and Sullivan cases:

November 9, 2009 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, November 08, 2009

"Lighter sentence for murderer with 'bad genes'"

The title of this post is the headline of this interesting sentencing story coming from the publication Nature, which reports on these sentencing developments in Italy:

An Italian court has cut the sentence given to a convicted murderer by a year because he has genes linked to violent behaviour — the first time that behavioural genetics has affected a sentence passed by a European court.  But researchers contacted by Nature have questioned whether the decision was based on sound science.

Abdelmalek Bayout, an Algerian citizen who has lived in Italy since 1993, admitted in 2007 to stabbing and killing Walter Felipe Novoa Perez on 10 March.  Perez, a Colombian living in Italy, had, according to Bayout's testimony, insulted him over the kohl eye make-up the Algerian was wearing.  Bayout, a Muslim, claims he wore the make-up for religious reasons.

During the trial, Bayout's lawyer, Tania Cattarossi, asked the court to take into account that her client may have been mentally ill at the time of the murder.  After considering three psychiatric reports, the judge, Paolo Alessio Vernì, partially agreed that Bayout's psychiatric illness was a mitigating factor and sentenced him to 9 years and 2 months in prison — around three years less than Bayout would have received had he been deemed to be of sound mind.

But at an appeal hearing in May this year, Pier Valerio Reinotti, a judge of the Court of Appeal in Trieste, asked forensic scientists for a new independent psychiatric report to decide whether he should commute the sentence further.

For the new report, Pietro Pietrini, a molecular neuroscientist at Italy's University of Pisa, and Giuseppe Sartori, a cognitive neuroscientist at the University of Padova, conducted a series of tests and found abnormalities in brain-imaging scans and in five genes that have been linked to violent behaviour — including the gene encoding the neurotransmitter-metabolizing enzyme monoamine oxidase A (MAOA).  A 2002 study led by Terrie Moffitt, a geneticist at the Institute of Psychiatry, King's College, London, had found low levels of MAOA expression to be associated with aggressiveness and criminal conduct of young boys raised in abusive environments.

In the report, Pietrini and Sartori concluded that Bayout's genes would make him more prone to behaving violently if provoked.  "There's increasing evidence that some genes together with a particular environmental insult may predispose people to certain behaviour," says Pietrini.

On the basis of the genetic tests, Judge Reinotti docked a further year off the defendant's sentence, arguing that the defendant's genes "would make him particularly aggressive in stressful situations".  Giving his verdict, Reinotti said he had found the MAOA evidence particularly compelling....

But forensic scientists and geneticists contacted by Nature question whether the scientific evidence supports the conclusions reached in the psychiatric report presented to Judge Reinotti.  "We don't know how the whole genome functions and the [possible] protective effects of other genes," says Giuseppe Novelli, a forensic scientist and geneticist at the University Tor Vergata in Rome.  Tests for single genes such as MAOA are "useless and expensive", he adds.

November 8, 2009 in Offender Characteristics, Sentencing around the world | Permalink | Comments (7) | TrackBack

Thursday, November 05, 2009

Florida state judge reduces homicide sentence based on "battered spouse syndrome"

This notable local sentencing story, which is headlined "Davie woman gets five-year sentence for fatal shooting: Woman gets 5 years for killing man who abused her," reports on a sentencing reduction a judge granted based on "battered spouse syndrome."  Here are the details:

Physically, sexually and emotionally dominated by a hulking man who gave her drugs in exchange for sex, Lisa Marie Romero's breaking point came when he threatened her three children's safety.

Romero, 39, shot Frank Don Alvarez, 61, in the back of the head with a rifle and left him dead, face down in an industrial area north of Davie Boulevard near Interstate 95, on Nov. 17, 2006.

Finding that Romero suffered from battered spouse syndrome, Broward Circuit Judge Ilona Holmes on Thursday cast aside sentencing guidelines that called for a 10- to 30-year sentence and sent Romero to prison for five years.

Incensed by the light sentence, Alvarez's son, John, 44, stormed out of the courtroom. "Put it this way, I will get my justice when she gets out of prison," he said, pacing in the courthouse hallway. "She will find out."

He had not yet heard that the judge also gave Romero credit for the nearly three years she had spent in jail awaiting trial. Prison will be followed by 10 years of probation.

Influenced by opinions from two psychologists who found that Alvarez abused Romero, state prosecutor Al Ribas downgraded a charge of first-degree murder to manslaughter with a firearm. In September, Romero pleaded guilty to that charge.

November 5, 2009 in Offender Characteristics, Offense Characteristics | Permalink | Comments (14) | TrackBack

Wednesday, October 28, 2009

How should positive behavior in prison impact resentencings after Booker?

This local article about an interesting sentencing hearing spotlights a number of challenging conceptual issues that surround federal resentencings in the post-Booker world.  The piece caught my eye due to its headline, "Victim helps press for longer sentence for nurse in 'nude therapy' case," but these snippets spotlight the array of legal issues this case presents:

Linda Kaufman, a nurse convicted of defrauding and abusing the mentally ill residents of the Newton home she ran with her husband, Arlan, told a federal judge she has been a positive influence on fellow inmates during her four years in prison.   But a former resident of the home said Kaufman still needs to be held accountable for what happened there.

Not because she "married a monster," said Nancy Jensen, but because Kaufman was a registered nurse.   "She was to do no harm, and she was to advocate for the people that she was to help," Jensen said.

The statements came Tuesday in the courtroom of U.S. District Judge Monti Belot, who has been required by the 10th Circuit Court of Appeals to reconsider factors that could lengthen the seven-year prison sentence he originally imposed on Kaufman. After a two-hour hearing, Belot took the matter under advisement and said he'd make his ruling in a written memorandum. He didn't say when he'd issue it.

Linda Kaufman, 66, and Arlan Kaufman were convicted in November 2006 of enslaving the home's residents, forcing them to work naked and perform sex acts. Belot gave Arlan Kaufman a 30-year sentence and Linda Kaufman a seven-year sentence.

The appeals court said Belot should reconsider Linda Kaufman's sentence because she was alleged to have used a stun gun, which the government said was a dangerous weapon; because the offenses involved a large number of vulnerable victims; and because she obstructed justice by interfering with a federal audit and investigation of the home.

The government has recommended a sentence of at least 20 years. Kaufman's attorney, Steve Gradert, asked Belot to reimpose his original sentence. That sentence was below sentencing guidelines. Belot had shown her leniency, believing she was manipulated by her husband....

Jensen, in an emotional statement, said the Kaufmans "did horrible things to us in the name of mental health and in the name of taking care of clients." Linda Kaufman was a nurse who was responsible for taking care of people with mental illnesses, she said. "The harm that she did is not easily seen because it was emotional and affected our behavior and our belief systems," Jensen said. "She used our diagnosis to blame us and abuse us. So, therefore, Linda knew how to hide the harm she caused us and blamed us for."...

Linda Kaufman told Belot that during her confinement she had done a lot of volunteer and self-improvement activities.   She had coexisted peacefully with other inmates, had no disciplinary reports, worked faithfully at her prison jobs and received high scores for her job performance and cooperation, she said. She also participated in continuing education and religious classes. She said she won a humanitarian award last year for her work with inmates and for her quilting.

Kaufman said if she had another chance, she "would do many things differently," but she was looking to the future. "I long to join, and re-join, my grandchildren as soon as possible," she said.

Important sentencing issues ranging from co-defendant influence and disparity to the impact of the victim's testimony to the significance of the defendant's status as a nurse are all richly presented in this notable case.  But, as highlighted by the question in the title of this post, I am especially interested to hear views on whether readers think Linda Kaufman's positive behavior while incarcerated can (or should or must) be a significant consideration in her resentencing in light of Booker and the terms of 3553(a).

October 28, 2009 in Offender Characteristics, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Thursday, October 22, 2009

ABAJ coverage of SCOTUS cases on constitutionality of juve LWOP

In the November 2009 issue of ABA Journal magazine includes this article previewing the two juve LWOP cases to be heard by the Supreme Court next month.  The piece is headlined, "Adult Time for Adult Crimes: Is life without parole unconstitutional for juveniles?", and here are excerpts:

In a pair of cases from Florida, Graham v. Florida and Sullivan v. Florida, the court must determine whether Roper’s reasoning — that juvenile defendants are fundamentally different from adult defendants — extends from the death penalty to life without parole.  Arguments are scheduled for Nov. 9.

“Life without parole can be considered as death in prison and the penultimate sanction,” says Florida State University law professor Wayne A. Logan, who has written on juvenile life without parole.  “The court granting cert in two cases signals its concern about ju­venile justice, which is a welcome development.  Life without parole has become a live issue in the wake of the Roper case.”...

Numerous amicus briefs have been filed on behalf of Sullivan and Graham seeking to persuade the court to extinguish LWOP sentences for juveniles.  One of the more compelling comes from a group of former juvenile offenders who later achieved success, including actor Charles S. Dutton and former U.S. Sen. Alan K. Simpson.  Dutton stabbed a person to death in a street fight at age 17, while Simpson committed arson on federal property, punched a cop and — in his own words — “was a monster.”

“We tried to present the views of several individuals who had been involved in criminal offenses when they were juveniles — some of whom may have been eligible for LWOP under particular state laws — and to explain what that kind of severe sentence would have meant for them,” says Washington, D.C.-based attorney David W. DeBruin, who filed the brief.  “The individuals described in our brief had hope because they had the prospect of release. Knowing that they had a chance, they used the time in prison to resolve to do things differently and to obtain skills — and eventually they made outstanding contributions to society.”...

Roper was wrongly decided, but it is manageable if contained on the death penalty side of the firebreak,” says Kent S. Scheidegger, legal director of the Criminal Justice Legal Foundation, the Sacramento, Calif., group that supports crime victims.  But, he adds, Roper “should not be extended at all.  These are sentencing policy decisions to be made by the people of the several states through the democratic process.  Whether one agrees or disagrees with the decision, it is the people’s to make.  Nothing in the Constitution assigns that decision to the federal judiciary.”

But experts agree on the importance of the cases.  “There is a tremendous amount at stake in these cases when you consider that life imprisonment without the possibility of parole is almost equivalent to a death sentence and gives the offender no chance of relief or release or hope,” DeBruin says.

Some recent posts on juve LWOP and the Graham and Sullivan cases:

October 22, 2009 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics | Permalink | Comments (16) | TrackBack

Monday, October 19, 2009

UK advocacy group urges motherhood as a sentencing consideration

This new BBC piece, which headlined "Courts 'should consider mothers'," reports on how an advocacy group across the pond is calling for consideration of family values at sentencing:

Magistrates and judges in Wales should take account of whether women are mothers when sentencing them, says a children's charity. Barnado's Cymru said courts "need to look at alternatives to custodial sentences" when dealing with mothers. They should know more about the impact of a sentence on a child, it says.

Laura Tranter said a woman should still face the full range of sentencing "but whether or not she needs to lose ties with her children is another issue". The children's charity said children in Wales who have a parent in prison need better support.

Its report, Every Night You Cry, says that failing to address their needs has a negative impact on their behaviour, claiming that "almost two-thirds of boys with a convicted father go on to offend" if no interventions are made. The charity says there are an estimated 160,000 children in the UK who have a parent in prison, more than twice the number of children in care and six times the number of children on the child protection register.

October 19, 2009 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Sentencing around the world | Permalink | Comments (1) | TrackBack

Should there be an age floor for when a sex offense requires registration?

In the Graham and Sullivan cases, the Supreme Court will be struggling with whether and how to set a constitutional floor on the age at which an offender can be given an LWOP sentence.  This local article, headlined "Group opposes sex-offender registry for youths," spotlights the question of whether there ought also be a floor for when a young sex offender is subject to registration requirements. Here are excerpts from the piece, which also discusses other aspects of state resistance to federal sex offender registration provisions:

Legislation that requires states to publish the names and photos of minors who have been convicted of sex-related offenses in a nationwide public registry is being discouraged by a Washington, D.C.-based group.

Some states already include minors as young as 14 in their own statewide sex-offender registries, but legislation known as the Adam Walsh Child Protection and Safety Act of 2006 is calling for all states to take up the practice for a national registry.  States that don't comply with the act risk a decrease in federal criminal justice funding.  Yet, only one state and one tribe have complied completely since Congress the act became law in 2006.

Local lawyers see a problem with lumping minors with adults in a public sex offender registry. "We're still hoping that part of the act doesn't get passed," said Chris Gardner, chief deputy public defender in San Bernardino County's Human Services Division.

Research does not support the stance that a minor convicted as a sex offender is going to do the same thing as an adult, Gardner said. Studies show the opposite, and the vast majority of kids don't reoffend, he said.  "If a kid's crime is tried in Juvenile Court, where the idea is rehabilitation, it doesn't make sense for there to be any kind of long-standing history or sex registry," Gardner said.

Justice Policy Institute recently reissued a report that details the harm that public registries have on minors, a demographic where criminal justice usually aims for rehabilitation. "It's extremely detrimental to the youth," said Nastassia Walsh, a research associate at JPI.  "It isn't proven to improve community safety at all. It can really harm a kid's chances of having a `normal life."'...

Other states have cited numerous reasons for not complying, including the cost and the need for more equipment, resources and personnel.  A Congressional Budget Office analysis from December 2005 reported the act to cost $1.5billion to enact between 2006 and 2011.

Besides cost, California cited other reasons for not complying with the act: statutory barriers, juvenile privacy issues and constitutional privacy protections, according to an April survey conducted by SEARCH, a national consortium for justice information and statistics.

The National Center for Missing and Exploited Children, which is behind the Adam Walsh Act, estimates there were about 670,000 registered sex offenders in the United States.  But about 100,000 are lost in the system....

Prosecutors say only a limited number of sex-related juvenile crimes in California even qualify for a stay in the Department of Juvenile Justice and publishing in a public registry.

Karen Bell, a deputy district attorney who handles juvenile offenses in San Bernardino County, said she didn't anticipate there would be much support in the state for the labeling of minors through a public registry. "I think the reaction of that of the Legislature of California, and certainly the bench and the bar would be very much against it," Bell said.

October 19, 2009 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Thursday, October 15, 2009

Thoughtful reflections on juve LWOP from Minnesota

As noted in this post, last week the Minnesota Supreme Court rejected constitutional arguments against an LWOP sentence for 17-year-old murderer.  That ruling has prompted this thoughtful commentary, headlined "The kids are not alright: Minnesota minors who kill can go to jail for life with no chance of getting out." Here are snippets:

Last Thursday, the Minnesota Supreme Court upheld Martin’s sentence, saying it was not a violation of the federal or state constitution. Minnesota’s decision comes at a critical time for judicial consideration of juvenile sentences. On Nov. 9, the United States Supreme Court is scheduled to hear oral arguments on whether sentencing juveniles to life without parole for non-homicidal crimes is unconstitutional. To oversimplify things, the decision faced by the courts is whether life sentences meted out to offending minors violates the Eighth Amendment to the U.S. Constitution, which bans “cruel and unusual punishments.” Minnesota’s state constitution, which was also considered in Martin’s case, however, bans “cruel or unusual punishment.”

Before jumping to any conclusions, consider how important some of the issues involved are. These kids have been convicted of committing horrible crimes. You don’t get life without parole for vandalizing the neighbor’s garage....

I was talking about these cases with my friend and classmate Rob Crist, who I think summed things up perfectly with a question: “What do you do with a kid like that?” For some states, the solution is to lock the kids up for the rest of their lives. “The juvenile system has been utterly incapable of doing anything with Mr. Sullivan, even though Sullivan had been given opportunity after opportunity to upright himself and take advantage of the second and third chances he’s been given,” the prosecution’s brief states, quoting the trial judge.

Yet, despite the horror of the acts themselves, many argue that the kids deserve a second chance on account of their age. Sullivan’s defense team’s brief before the Supreme Court lists all the sociopsychological reasons against harsh sentences for children....

Any time a juvenile commits a violent crime, it’s already a tragedy. I can’t help but think that a child like Joseph Sullivan doesn’t do what he did unless a long line of adults — people like his teachers, parents or others in his surrounding community — had failed to teach him responsibility all along.

Somehow, the world has gotten to the point where kids are killers and rapists long before they can graduate from high school. As horrible as this is, I’m skeptical that the best way to deal with our youngest criminal offenders is to lock them up and throw away the key.

Some recent posts on juve LWOP and the Graham and Sullivan cases:

October 15, 2009 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics | Permalink | Comments (6) | TrackBack

Monday, October 12, 2009

Interesting local coverage of "sexting" problem

I just notices a pair of new articles in the Columbus Ledger-Enquirer reporting on the modern social problem of "sexting." The piece, available here and here, are headlined "Teens often don't grasp the consequences of sexting" and "Criminal charges from sexting can be heavy."  Here is the sentencing part of the story from second article, which describes parts of applicable Georgia law:

Sexting is a crime. When those photographs involve a minor and are of a sexual nature, they can be considered child pornography and lead to criminal prosecution.

Anyone caught possessing, distributing or manufacturing such pictures — even if they themselves are under age — can be charged with a felony that, depending on the circumstances, could carry a prison term ranging from 12 months to 20 years in prison.  Anyone convicted of these crimes, which include child molestation, possession/distribution of child pornography and enticing a minor will also be labeled as a sex offender.

“All of which are felonies,” said Sgt. Debra Bohannon with the Sex Crimes Unit of the Columbus Police Department. “That’s not even something these kids or their parents are thinking about. But they should.”

Sexual exploitation of a child, among the most common charges that Bohannon and the Sex Crimes Unit pursues in cases that might be defined as sexting, carries a penalty of no less than five and no more than 20 years in prison. “It depends on the totality of the crime,” Bohannon said. “It depends on the age of the sender, the age of the receiver, what was sent and how much was in their possession. There are a variety of circumstances that play into the exact charges that are filed.”

While specific numbers are difficult to calculate given the nature of sexting, Bohannon said the Sex Crimes Unit has been called in to investigate “numerous” cases involving what would be considered child pornography that’s been either captured or distributed by cell phones.

Her most recent case took place in mid-August and involved two 12-year-olds. No charges were filed. “A majority of the kids we see are in middle school,” Bohannon said. “We see some in high school, but most are sixth-, seventh- and eighth-grade kids. And I’d be willing to say that a high, high percentage of the actual cases are handled in-house, either by the schools or by their parents.

Some related "sexting" posts:

October 12, 2009 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (18) | TrackBack