Friday, June 18, 2010

Eleventh Circuit finds Georgia procedure for implementing Atkins unconstitutional

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

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

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

Thursday, June 17, 2010

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

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

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

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

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

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

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

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

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

"The Impact of Juvenile Transfer Laws on Juvenile Crime"

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

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

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

Tuesday, June 15, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, June 14, 2010

SCOTUS confirmation that the prior conviction excpetion to Apprendi is here to stay

Sentencing and clemency guru Margaret Colgate Love wrote me today to suggest that the biggest sentencing news coming from all today's SCOTUS action (basics here) is to be found in the immigraion case Carachuri-Rosendo v. Holder (available here).  In Carachuri-Rosendo, the Justices ruled that "that second or subsequent simple possession offenses are not aggravated felonies [requiring deportation] under §1101(a)(43) when, as in this case, the state conviction is not based on the fact of a prior conviction." And here is what Margaret Colgate Love had to say about why this is a notable ruling for sentencing fans:

Biggest news this morning on sentencing front is in Carachuri-Rosendo [because the] Court unanimously backs away from constitutionalizing recidivist sentencing. It reaffirms Almendarez-Torres, both on 5th and 6th A grounds and nobody says a word in defense of overruling it. Thomas concurred apparently just to let us know rather gracefully, by not mentioning A-T, that he has given up hope of Court overruling it.  (It seems that all the hype in circuits about A-T being on life support was just that.)

The Court also said that notice of intention to charge priors under 851 was not constitutionally compelled. Stevens was all business, no prose more purple than "counterintuitive and unorthodox." Though 851 has no constitutional underpinning, it is a way to limit recidivist enhancements in drug cases.  As to other types of enhancements, I thought his note 12 was very significant for ACCA and other gun recidivist enhancements, in requiring that prior must appear as part of the judgment or formal charging document (a fairly substantial expansion/clarification of Shepard).

June 14, 2010 in Almendarez-Torres and the prior conviction exception, Blakely in the Supreme Court, Offender Characteristics, Who Sentences? | Permalink | Comments (11) | TrackBack

Effective media coverage of the new proposed federal sentencing guidelines

The Philadelphia Daily News has this effective new piece headlined "Defendants could benefit from new federal sentencing guidelines." Here are excerpts:

Current sentencing guidelines say that the age and medical condition of a defendant are "not ordinarily relevant" factors when deciding whether leniency is warranted at sentencing, but they soon could be.

After Nov. 1, these kinds of personal characteristics "may be relevant" provided they are "present to an unusual degree" under new guidelines recently adopted by the U.S. Sentencing Commission, if Congress doesn't disapprove them....

And the new rules also permit judges to send certain nonviolent drug offenders to drug- or alcohol-abuse treatment centers instead of prison.

All judges use the guidelines as the starting point in calculating sentences, and many typically sentence defendants within the guidelines - which often means prison time - unless prosecutors request leniency on behalf of cooperating witnesses. (In 2009, for example, 54 percent of defendants eligible for a nonprison sentence in the Eastern District of Pennsylvania were sent to prison anyway.)

Commission chairman William K. Sessions III said that nationally there was "a great need for alternatives to incarceration," based on feedback the commission received. If Congress approves them, the new guidelines are likely to mean that some white-collar defendants now sent to prison may receive nonprison sentences.

The new guidelines could double the number of offenders eligible for probation, said Jonathan Wroblewski, director of the Department of Justice's Office of Policy and Legislation, in a written submission to the commission prior to its adoption of the new guidelines. A Justice Department spokeswoman said the department had no further comment on the new guidelines.

Sessions said the proposed changes would help to lower recidivism, save taxpayers money and protect the public. For example, taxpayers now pay an average of $27,252 per year to house an inmate in federal prison as opposed to $3,808 to supervise a defendant sentenced to probation.

Wroblewski said that federal prosecutors were "extremely cautious" about revisions to the guidelines related to offender characteristics, adding that the changes could "exacerbate" unwarranted sentencing disparities and create a "new level of uncertainty and unpredictability" in sentencing.

Other observers suggested that some of the proposed new guidelines may make sentencing fairer. "It's good news because the commission seems to be looking more at the individual characteristics of the defendant," said Leigh M. Skipper, the chief federal defender in Philadelphia. "It's a shift in focus."

Related posts on the new proposed sentencing guidelines :

June 14, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, June 10, 2010

Indiana Supreme Court addresses use of risk assessment tools in state sentencing

The Indiana Supreme Court yesterday handed down an interesting and important decision concerning the use at sentencing of the kind of risk-assessment tools that are become increasingly more popular in those states adopting evidence-based sentencing practices.  Here is how the Court's unanimous ruling in Malenchik v. Indiana, No. 79S02-0908-CR-365 (Ind. June 9, 2010) (available here), gets started:

Following his plea of guilty to Receiving Stolen Property, a class D felony, and his admission to being a Habitual Offender, the defendant was sentenced to a total of six years, with two years suspended.  The defendant appeals his sentence and presents two claims: (1) the trial court erroneously considered as an aggravating circumstance the numerical scores reported by the Tippecanoe County Probation Department after it conducted evaluations of the defendant using certain offender risk evaluation and assessment instruments; and (2) his sentence was inappropriate and should be revised.  The Court of Appeals rejected both claims and affirmed in a memorandum decision.  Malenchik v. State, No. 79A02-0902-CR-133 (Ind. Ct. App. June 5, 2009).  We granted transfer to address the first claim and invited supplemental briefs of the parties and amici curiae.  As explained below, we hold that legitimate offender assessment instruments do not replace but may inform a trial court's sentencing determinations and that, because the trial court's consideration of the defendant's assessment model scores was only supplemental to other sentencing evidence that independently supported the sentence imposed, we affirm the sentence.

June 10, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, June 07, 2010

Interesting state certification "dodge" to deal with juve SORNA case from Montana

I am intrigued (and I think pleased) that the Supreme Court this morning in US v. Juvenile Male decided to deal with a complicated issue involving retroactive application of a federal sex offender notification provision for adjudicated juvenile delinquents by certifying a question to the Montana Supreme Court. The per curiam order in this case has the SCOTUS Justices asks this question of the Montana Justices:

Is respondent’s duty to remain registered as a sex offender under Montana law contingent upon the validity of the conditions of his now-expired federal juvenile-supervision order that required him to register asa sex offender, see Mont. Code Ann. §§46–23–502(6)(b), 41–5–1513(1)(c) (2005); State v. Villanueva, 328 Mont. 135, 138–140, 118 P. 3d 179, 181–182 (2005); see also §46–23–502(9)(b) (2009), or is the duty an independent requirement of Montana law that is unaffected by the validity or invalidity of the federaljuvenile-supervision conditions, see §46–23–502(10) (2009); 2007 Mont. Laws ch. 483, §31, p. 2185?

I am uncertain whether this "passive virtues" approach to dealing with the Solicitor General's cert request following Ninth Circuit's ruling in Juvenile Male is a clever or curious dodge of a complicated sex offender registration issue.  But I am certain that this approach shows the SCOTUS Justices' continued concern with at least some aspects of the scope and operation of federal SORNA provisions.

June 7, 2010 in Offender Characteristics, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Charlie Sheen plea deal includes creative (and dramatic?) sentencing provisions

This new CNN report, which is headlined "Charlie Sheen's sentence could include theater internship," details an interesting aspect of a high-profile celebrity sentencing taking place in Aspen today.  Here are the details:

Charlie Sheen will stand before a judge Monday afternoon to plead guilty to charges stemming from a Christmas morning argument with his wife in Aspen, Colorado, a prosecutor said.

If the judge accepts the plea agreement, the television star would spend the next month as a theater intern by day and a jail inmate at night.  Pitkin County, Colorado, District Attorney Arnold Mordkin would not confirm reports that  Sheen would serve 30 days in jail, but the sheriff has already scheduled a news conference to answer questions about his jail.

The proposal includes a month of community service for Sheen, 44, working with Theater Aspen, according to Paige Price, the theater's artistic director. "We've often been in a position of helping people fulfill their community service, but he would be our highest profile intern," Price said.

Sheen's duties with the community theater haven't been outlined, but it would involve "some utilization of his skills as an actor," Price said.  Sheen, who began acting professionally in 1974, may teach master classes for professional actors working during Theater Aspen's summer productions, Price said.

I sure hope I might get a chance to do community service as a lawyer and law professor if I ever get in trouble like Charlie Sheen.

June 7, 2010 in Celebrity sentencings, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics | Permalink | Comments (7) | TrackBack

Friday, June 04, 2010

"Assistant public defender charged in attack on prosecutor"

The title of this post is the headline of this local story from Chicago.  And though violent crime should never be taken lightly, this story seems to be amusing to some because of the participants:

A Cook County assistant public defender who represents convicted felons now has to worry about keeping himself out of jail after being accused of pushing and choking a prosecutor at the Criminal Courts Building.

Henry L. Hams, 47, of Chicago was charged late Thursday afternoon with aggravated battery and resisting arrest after a rare scuffle that sent waves of whispers and startled reactions through the building at 26th Street and California Avenue.

Hams and the prosecutor, 50, had just left a courtroom where a discussion about the routine setting of a future court date became contentious. Still upset, Hams complained to the assistant state's attorney outside the courtroom, according to a law enforcement source.

The prosecutor "apparently said, 'Too bad, that's the date the judge set,' and (Hams) just lost it and shoved (the prosecutor) against the wall," the source said. "He said something about how he was sick of being mocked." The prosecutor "was stunned and didn't do anything, and the next thing you know (Hams) had him in a headlock," the source said.

Another source who witnessed the incident said he heard a scuffle and saw Hams choking the prosecutor. "He had his hands wrapped around his throat and was just kind of riding him down the wall," the source said.

A Cook County sheriff's department sergeant and deputy rushed to intervene as Hams was alleged to have throttled the larger prosecutor. "When our deputies attempted to break it up, Hams was on top of the victim choking him with both hands around his neck," said Steve Patterson, a sheriff's department spokesman. "When one of the two deputies attempted to pull Hams off the victim, Hams continued choking the victim with one hand and attempted to resist the deputy's efforts with his other hand."...

Hams works out of the post-conviction unit for the public defender's office and the victim works out of the special litigations section for the state's attorney's office. Patterson said the two only knew each other through legal proceedings.

News of the fracas spread quickly through the hallways. Nobody wanted to talk on the record, but many expressed surprise. "That guy is like (TV character Steve) Urkel -- he's this little, quiet dude," said a veteran courthouse lawyer, chuckling. "(The victim) is going to hear about this one forever."

June 4, 2010 in Offender Characteristics, Offense Characteristics | Permalink | Comments (55) | TrackBack

Thursday, June 03, 2010

Defendant experiences another reversal of ACCA fortunes via Fourth Circuit's reversal

The Fourth Circuit has an interesting ruling today in US v. Pettiford, No. 09-4119 (4th Cir. June 3, 2010) (available here), which reverses a district court's decision to reduce an ACCA sentence by granting relief in a 2255 action.  Here is how the panel ruling in Pettiford gets started:

Appellee Antoine Jerome Pettiford pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and received an enhanced sentence of 188 months’ imprisonment, in part because he had five prior convictions which qualified him as a career criminal under the provisions of the Armed Career Criminal Act (the "ACCA"), 18 U.S.C. § 924(e).   Two of the five state court convictions were subsequently vacated, and Pettiford brought a petition under 28 U.S.C. § 2255 for post-conviction relief from the enhanced federal sentence.  The district court granted Pettiford’s petition, holding that as a result of the vacatur of the two state convictions, Pettiford was entitled to relief.  The district court then resentenced Pettiford to a term of 100 months’ imprisonment. For the reasons that follow, we reverse the district court’s order and remand with instructions to reinstate Pettiford’s original sentence.

June 3, 2010 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Wednesday, June 02, 2010

"Youthful offenders deserve a second chance"

The title of this post is the headline of this new commentary in the Los Angeles Times authored by Miriam Aroni Krinsky, Ernie Pierce and Jeanne Woodford. Here are excerpts:

One of us is a retired police officer who daily put his life on the line to catch criminals. Another is a former Department of Justice attorney who spent years prosecuting violent drug dealers and organized crime organizations.  The third, a former warden of San Quentin State Prison and director of the California Department of Corrections and Rehabilitation, spent her career ensuring that those convicted served out their sentences as required by law.

Collectively, we have put or kept a lot of people in prison.  Prison is where some people justly belong, many for long periods of time.  But it is exactly our experience in law enforcement that causes us to agree with the Supreme Court's recent decision to abolish the sentence of life without parole for teens in nonhomicide cases.

That decision, however, did not finish the reforms needed in juvenile sentencing.  There are thousands of lifers in the nation's prisons — about 250 in California alone — who as teenagers participated in crimes involving homicides.  They all deserve a second chance, and at least some of them may deserve to be released.

As the high court recently recognized, there are inherent differences between teenage and adult criminals.  A teen who commits a crime, even a terrible one such as murder, is not forever defined by that one act.  Indeed, in our work, we have witnessed dramatic transformations among young people in our correctional facilities and in our neighborhoods....

The Legislature is considering a bill, SB 399, that would allow those who prove they merit a second chance an opportunity to be considered for parole, but only after serving at least 25 years.

Clearly there are offenders who have committed heinous crimes and are unfit to be released regardless of the age they were when they committed their crime.  SB 399 would not allow these people to return to our communities.  Instead, it would allow for a thoughtful review to determine whether, years later, individuals sentenced as youths continue to pose a threat to the community.

We know that sentencing youngsters to a life in prison with no possibility for review of their sentence as they mature into adulthood isn't simply excessive; it is contrary to the interests of our state.

Life without parole does not deter criminal behavior among youths.  Most kids get caught up in crime without analyzing the consequences of their acts.  Indeed, research confirms that teenagers have weak impulse control and reasoning abilities.

Life without parole is also a very costly policy. In the case of young people, these sentences cost California about $2.5 million each.  And without SB 399, there is no way to revisit these sentences and account for the adult that teen has become.

It is time for California, and our nation as a whole, to take the Supreme Court's decision to its next logical step and join the rest of the world by revisiting inflexible life-without-parole sentences for young offenders.  Juvenile offenders are different; our laws and system of justice must acknowledge those differences.

June 2, 2010 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Elderly sex offender gets long sentence for not checking ID before taking dirty pictures

This local story out of Michigan, which is headlined "Sex offender, 73, confused why his photos of nude teens caused such a legal fuss," reports on an interesting case involving an old pervert getting in big trouble for not figuring out how to refine his prurient interests.  Here are the details:

Charles Judson Holbrook, sentenced twice for being a child sexual predator, says he doesn't understand why his photography of nude teens has caused such a fuss.  Holbrook, 73 ... was sentenced to 15 to 40 years in prison Tuesday by Kent County Circuit Judge James Robert Redford for taking pictures of girls as young as 14 in exchange for money they used for drugs and shopping.

The incidents occurred between 2003 and 2009 involving three girls, all now older than 18, who lived in or had a friend living in Holbrook's neighborhood.... Three women told a jury Holbrook plied them with gifts and cash to pose nude or semi-nude for photos.

A 23-year-old woman said she was 16 or 17 when she began accepting money from Holbrook to have her picture taken in various states of undress -- including photos taken when she was pregnant at age 17.  She said she used the cash she would get for the photo sessions to buy drugs and alcohol.

Two other women said they posed for Holbrook as teens.  One of the girls was 14 at the time she was photographed.  Another said she posed with other girls and would help recruit them to go to Holbrook's house, telling them they could make money.

The women said they would travel with Holbrook to area parks, and he would treat them to dinner, usually giving them money.  Two of the women also said Holbrook offered them money to have sex, which they refused.  None of the victims showed up for Tuesday's sentencing.

Holbrook's attorney, Freeman Haehnel, pointed out that the girls would show up to Holbrook's home uninvited and freely took money in exchange for posing.  "I don't know who the predator is here," Haehnel said. "It seems both parties were using each other."

Holbrook appeared flummoxed by the whole series of events as the frail man looked around the room for family members.  "I don't understand all this fuss over my picture-taking," Holbrook said.  "All this over my picture-taking?"  Holbrook said he has been fascinated by photography for more than 60 years.

In 2001, Holbrook pleaded guilty to charges he took nude photos of girls whom he met and befriended through his connections as a long-time sports fan and booster club volunteer in the Wyoming and Godfrey Lee school districts.  Holbrook also pleaded guilty to a charge of having sex with a 15-year-old girl.

He was sentenced to one year in jail by then-Kent County Circuit Judge David Soet.  In his earlier case, Holbrook was turned in by a photo developer.

The latest charges were a result of a victim coming forward, although the photos were developed at area drug and grocery stores where Holbrook would have his victims drop off the film and pick up the photographs.  "If I thought there was a problem with my pictures, why, the corner drug store would not have touched them," Holbrook told Redford.

Redford called Holbrook's contentions "utter nonsense" and "completely fictitious." "This case is not about a 73-year-old man's fixation with cameras," said Redford. "This is about a predator taking sexually predatory advantage of vulnerable girls over a period of decades."

The best-case scenario for Holbrook would have him leaving prison at age 88.  But Haehnel said considering Holbrook's health, the sentence handed down Tuesday is tantamount to a life sentence.

I believe that, had the girls photographed reached their 18th birthday when they started posing for cash, then Charles Judson Holbrook's behavior would have been not only legal, but constitutionally protected First Amendment activity.  Thus, it seems that the real key to Holbrook's crime was his failure to ask for ID when teenage girls came to his door asking to be paid nude models. 

In this context, it also bears noting that many states are prepared and eager to treat teens as adults when they commit crimes --- for example, this recent local story reports on Michigan charging a 14-year-old as an adult for a home invasion --- but they then readily assail someone like Charles Judson Holbrook for treating teens like adults in another context.  Holbrook's surprise about his functional life sentence for taking nude pictures of teens perhaps makes sense given that Michigan asserts that teens can and should be treated like adults in other criminal justice settings.

I wonder what the folks at Liberty Central, who claim a commitment to "Founding Principles" of "limited government, individual liberty, free enterprise, ... and personal responsibility" would say about an old guy getting a functional life sentence for simply running his own small (teen porn production) business. 

June 2, 2010 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (13) | TrackBack

Charlie Sheen cuts a plea deal to cut down jail time for assaulting his wife

As detailed in this hard-hitting E! Online report, which is headlined "Charlie Sheen Makes a Deal; Will Go to Jail," a famous actor is going to be spending a (small) part of his summer in the slammer.  Here are the details:

Charlie Sheen is going from Two and a Half Men to two-and-a-half weeks…behind bars.

E! News has confirmed that the sitcom star will plead no contest to misdemeanor assault stemming from his Christmas Day arrest for attacking long estranged and newly over it wife Brooke Mueller.

Although Chief Deputy District Attorney Arnold Mordkin declined to comment on specifics, the plea would likely result in a 30-day jail sentence.

So where does the two-and-a-half weeks come in? Well, being the highest-paid sitcom star on TV does have its perks, and a cunning defense lawyer is apparently one of them.

Sheen is unlikely to make waves while in Aspen lockup and his good behavior will bring his sentence down significantly, meanwing he'd only serve about half the time. Sheen's attorney, Richard Cummins, has not returned calls seeking comment on Sheen's dealings.

The 44-year-old shaven wonder is planning to enter the plea at his hearing on Monday in Aspen on Monday. Before then, he'll need to finish up his court-ordered 36 hours of anger management classes.

Sheen originally faced two misdemeanor charges of criminal mischief and third-degree assault as well as felony menacing. The felony count, which carries a maximum three-year sentence, will now disappear.

June 2, 2010 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

Thursday, May 27, 2010

"Defendant's Gender Affects Length of Sentence"

A helpful reader forwarded me this posting from ScienceDaily, which has a report with a headline that serves as the title of this post.  The piece reports on research from Sweden, and here are the basics:

A study of 300 simulated court cases shows that experienced judges, lay assessors, prosecutors, police officers, and lawyers make decisions and convict defendants differently depending on whether they are men or women and what the defendant looks like. Eyewitnesses to crimes are also affected by these factors.  This is especially pronounced if there is an extended period of time separating the crime and the testimony.  This is what Angela S. Ahola, Department of Psychology, Stockholm University, shows in her dissertation.

In her study of simulated short criminal cases, Angela S. Ahola shows that gender and appearance affect our judgments of personality, occupation, morals, and reliability and create a frame of reference for our behavior.  Among other things, it was shown that judges and lay assessors both assessed and judged accused individuals of the same gender as themselves more severely than the opposite gender.  On the other hand, prosecutors, lawyers, police officers, and law students, regardless of their own gender, evaluated male defendants more harshly than women defendants.  What's more, among female members of this category, that is, those without a convicting role in the legal process, differences were seen in their evaluations depending on the looks of the accused.

May 27, 2010 in Offender Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack

Ohio legislature developing special teen "sexting" criminal law

My local Columbus Dispatch reports here on an interesting state legislative effort to create a special criminal law to deal with the special problem of teen sexting.  This article is headlined "Ohio House backs making teen 'sexting' crime: Bill rules out harsh penalties because it’s only for minors," and here are the interesting details:

Ohio House yesterday passed a bill that would punish teenagers for "sexting" but ensure that they do not face harsh punishment or be put on the sex-offender registry normally associated with transmitting nude pictures of minors.

"This is a growing problem that must be addressed in the most responsible and effective way," said sponsor Connie Pillich, D-Montgomery, who introduced the bill about a year after a House Republican pushed a similar measure. "Is this behavior bad? Yes. Does it warrant a life sentence as a sex offender? No."

As technology has made it increasingly easy to take pictures and transmit them, studies say a growing number of teenagers are sending nude pictures of themselves or others in what is commonly known as sexting.

But the problem for law-enforcement officers and prosecutors is how to treat these situations under existing law, which is designed to harshly punish those who transmit such pictures and was largely written long before sexting was even possible.

Pillich noted cases in Pennsylvania and Ohio in which teenage girls faced serious child-pornography charges for sending nude photos of themselves. "One of the central tenets of our juvenile-justice system is that children are to be treated differently than adults," Pillich said.

House Bill 473 creates the new offense of sexting and applies it only to minors, classifying the sending of a nude photo of oneself as an unruly act and the sending of a photo of another as a misdemeanor.

The bill passed 86-12. Some members were concerned that the Ohio Prosecuting Attorneys Association opposed the measure. Prosecutors argued that some offenses with potentially devastating consequences are being improperly reduced, sending the wrong message about the seriousness of the offenses.

"This is a serious matter, and I think if we're really concerned about the safety of these young people and properly handling this serious offense, we should listen to what prosecutors say ... and take it back and redo it again," said Rep. Danny Bubp, R-West Union.

Some related "sexting" posts:

May 27, 2010 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Wednesday, May 26, 2010

Some police chiefs expressing concern about crime impact of Arizona's new immigration law

This new Washington Post piece, which is headlined "Arizona immigration law will boost crime in U.S. cities, police chiefs say," provides a new criminal justice spin to the robust political and social debate following Arizona's recent adoption of new rules for dealing with illegal immigration. Here are excerpts from the Post piece:

Arizona's new crackdown on illegal immigration will increase crime in U.S. cities, not reduce it, by driving a wedge between police and immigrant communities, police chiefs from several of the state's and the nation's largest cities said Tuesday.

The new Arizona law will intimidate crime victims and witnesses who are illegal immigrants and divert police from investigating more serious crimes, chiefs from Los Angeles, Houston and Philadelphia said. They will join their counterparts from Montgomery County and a half-dozen other U.S. cities in meeting Attorney General Eric H. Holder Jr. on Wednesday morning to discuss the measure.

"This is not a law that increases public safety. This is a bill that makes it much harder for us to do our jobs," Los Angeles Police Chief Charlie Beck said. "Crime will go up if this becomes law in Arizona or in any other state."

The delegation, organized by the Police Executive Research Forum, an independent think tank in Washington, comes as 15 states are considering their own versions of the Arizona law. That statute defines illegal immigration as criminal trespassing and requires police to request documents of anyone they stop and have a "reasonable suspicion" is in the country illegally.

Several recent public opinion polls indicate that as many as 70 percent of Americans surveyed support such a police requirement....

Although the ranks of chiefs appealing to Holder included Jack Harris of Phoenix, Roberto Villaseñor of Tucson and John W. Harris of Sahuarita, Ariz., president of the Arizona Association of Chiefs of Police, law enforcement opinion in the state is deeply split.

One of the new law's most prominent backers is Maricopa County Sheriff Joe Arpaio. His suburban Phoenix county has caught 120,000 illegal immigrants under a separate federal program that deputizes state and local law enforcement agents to catch illegal immigrants under limited circumstances, mostly after they have been booked into local jails.

Pinal County Sheriff Paul Babeu, head of the Arizona Sheriff's Association, is another backer. Babeu called the police chiefs' argument "flawed from the beginning." Cooperation from illegal immigrants, particularly those coming from Mexico, is already low, he said, because they are in the United States illegally and because of law enforcement corruption in their native countries....

Unlike most police chiefs, almost all sheriffs are elected officials. However, only about 60 of the nation's 3,000-plus elected sheriffs have chosen to participate in the federal program championed by Arpaio. Meanwhile, the nation's leading police chiefs have voiced caution about such initiatives.

In 2006, the Major Cities Chiefs Association -- which represents 56 U.S. cities -- unanimously warned that putting "local police in the crosshairs" of the national immigration debate would undo the success of community policing efforts in recent decades, said San Jose Police Chief Robert L. "Rob" Davis, association president and part of the group meeting Holder.

Requiring the Los Angeles Police Department to prioritize the arrest of 400,000 illegal immigrants among the city's 4.1 million residents would "cripple us and make it impossible for us to do our jobs," Beck said.

Montgomery County Police Chief J. Thomas Manger said directing officers to spend hours investigating the immigration status of every person stopped with a suspect identification card would mean less time to catch violent criminals. "We want to focus resources on people who are committing crimes in our communities," Manger said. "If you got somebody who is gangbanging and committing armed robberies, we'll work with [federal immigration authorities] all day long to find that individual."

May 26, 2010 in Collateral consequences, Offender Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, May 25, 2010

Remarkable opinions in remarkable sentencing case from the Eighth Circuit

A helpful reader made sure I did not miss the remarkable sentencing work coming from the Eighth Circuit today in US v. Deegan, No. 08-2299 (8th Cir. May 25, 2010) (available here).  The case is remarkable in part because of the criminal offense (second-degree murder of a newborn due to neglect) and the offender (the newborn's mother, a Native American who has suffered a long history of physical and sexual abuse).  The district judge sentenced the defendant to 121 months, the bottom of the calculated guideline range.  The majority of the Eighth Circuit panel in Deegan affirmed, rejecting claims that the sentence was procedural and substantively unreasonable.

Though the majority opinion in Deegan is an interesting read, the ruling is truly a must-read because of the remarkable 50+ page dissent by Judge Bright.  That dissent starts and ends this way:

I respectfully dissent.

This case concerns the crime of neonaticide, which is the killing of a newborn child on the first day of life. This crime is practically unknown in the federal courts. Neonaticide is a crime relating to family and domestic concerns and, thus, federal courts do not generally deal with these crimes. Indeed, excluding habeas cases, my research has disclosed only one other reported federal case discussing and deciding a neonaticide crime. See United States v. Tom, 494 F.3d 1277 (10th Cir. 2007), rev’d and remanded to 327 F. App’x 93 (10th Cir. 2009).

In the view of this judge, the procedure followed and the imposition of a ten-year-plus prison sentence on Ms. Deegan, a young American Indian woman, represents the most clear sentencing error that this dissenting judge has ever seen. [FN5] ....

[FN5] As a federal judge, I had never heard of the term “neonaticide” nor encountered a case of neonaticide until this case.  From reading the record, I daresay the same lack of knowledge existed in the district court personnel until neonaticide was explained by Dr. Phillip Resnick.  The defense counsel, William D. Schmidt of Bismarck, North Dakota, an assistant public defender, should be commended for his research on the subject and in bringing Dr. Resnick to testify about neonaticide.

This judge has read and reviewed several hundred federal sentencing cases.  Of those, the procedure and sentence here is among the most grossly wrong and unfair that I have ever encountered.  The result: a harsh, discriminate, and improper sentence upon an American Indian woman living on a reservation.  The conduct of the district court in this case and the majority’s affirmance violates every sentencing principle enunciated by the Supreme Court after United States v. Booker, 543 U.S. 220 (2005).

This one of a kind sentence by a federal sentencing judge, not a state judge as would be the usual case, occurred only by reason of the defendant’s residence on an Indian reservation in North Dakota.  I justify the length of this dissent on the basis that every aspect of the sentencing procedure and the substance of the sentence deserves careful examination.  This federal court on appeal should not approve a prison sentence for this reservation crime which this judge believes is unfair and improper under the law and facts. ...

*   *   *

I conclude with this comment.  The violence against women and children on Indian reservations is a national scandal.  It must be addressed not only as a criminal matter but as a societal concern.  If the violence against Ms. Deegan had been stopped, even as late as her association with Mr. Hale, and, if she had been given moral and societal assistance in raising the three children in her family, this crime of neonaticide might never have occurred. The deterrence to such a crime, as here, will not be attained by imposing a harsh punishment on Ms. Deegan.  The problems of preventing assault and abuse against women and children in Indian country need illumination, and immediate steps must be taken to stop this terrible and wrongful conduct.

May 25, 2010 in Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (22) | TrackBack

Former Detroit mayor Kwame Kilpatrick gets long prison sentence for probation violation

As detailed in this local article, which is headlined "Judge sentences Kilpatrick 18 months to 5 years in prison," former Detroit Mayor Kwame Kilpatrick got the book thrown at him this morning by a state judge at his sentencing for probation violation.  Here are the basics:

An audible gasp erupted in the courtroom as Judge David Groner sentenced former Detroit Mayor Kwame Kilpatrick to 18 months to five years in state prison. Deputies rushed up to a row where Kilpatrick friends and relatives are sitting.  They escorted one unidentified woman out.

"Your testimony in this court amounted to perjury," the judge told Kilpatrick. "Most compelling is that you lied to this court, continue to lie, after you pleaded guilty to lying.... "The initial 120 days incarceration did nothing to rehabilitate you."

After the gasp from the audience, Kilpatrick was ordered to sign papers. Some reporters saw his hands shaking. Groner asked Kilpatrick's lawyer, Schwartz, to assist the former mayor. As the courtroom began to buzz, Groner raised his voice and ordered Kilpatrick to be swift. "Sergeant could you secure the defendant please and put him in the back?" Groner said.  A deputy then handcuffed Kilpatrick behind his back and led him to a side room.  The former mayor kept looking over his shoulder, mouthing words toward his sister.

His attorneys vowed an immediate appeal of Groner's sentence.

Comment from Wayne County Assistant Prosecutor Athina Siringas: “We always felt a department of corrections sentence was appropriate. We are pleased.”

The judge’s order also raises questions about whether Kilpatrick will continue to have a job with a Compuware subsidiary in Texas. Compuware chief Peter Karmanos had given Kilpatrick a six-figure sales job with Covisint in an office just outside Dallas after the ex-mayor’s release from jail in February of last year.  But Karmanos said at the time that Kilpatrick’s continued employment was contingent upon Kilpatrick staying out of further trouble.

May 25, 2010 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

I wonder what L. Ron Hubbard might think about a year-long prison sentence for a cyber attack on the Church of Scientology

As detailed on this page of official website of the Church of Scientology, the religion created by L. Ron Hubbard is committed to "building a world free of crime." In light of that noble commitment, I wonder what the late L. Ron Hubbard might have tought about this AP sentencing story, which is headlined "Nebraska man sentenced in Scientology cyber attack." Here are the details:

A Nebraska man has been sentenced to a year in federal prison for his role in a cyber attack on the Church of Scientology's websites two years ago. Brian Thomas Mettenbrink, of Grand Island, Neb., was also ordered Monday to pay $20,000 in restitution and serve a year on supervised release after he gets out of prison.

The cyber attack was orchestrated by an underground group that calls itself "Anonymous" and protests the Church of Scientology, accusing it of Internet censorship.

Mettenbrink admitted being a member and pleaded guilty in February to a misdemeanor charge of unauthorized access of a protected computer. U.S. District Judge Gary Feess says the cyber attack had "a sense of hate crime."

Intriguingly, L. Ron Hubbard was born in Nebraska.... coincidence or proof of something?!?

May 25, 2010 in Offender Characteristics, Offense Characteristics | Permalink | Comments (2) | TrackBack