Tuesday, March 02, 2010

SCOTUS further restricts the reach of ACCA mandatory minimums in Johnson

Justice Antonin Scalia has proved once again that he is the friend of federal criminal defendants through his opinion for the Court today ruling in such a defendant's favor in Johnson v. United States.  Here is a brief account of the ruling via SCOTUSblog:

Johnson v. United States (08-6925), the Court rules 7-2 that a “violent felony” under federal law requires the use of physical violence, thereby reversing and remanding the lower court.  Justice Scalia writes for the majority, while Justice Alito dissents, joined by Justice Thomas.  The full opinion in pdf format is here.

Because I am on the road and then teach this afternoon, I may not have a chance to fully process and comments on this ruling until late tonight. In the meantime, I hope informed readers might comment on whether they think Johnson is a big deal or just another little (pro-defendant) tweak of the federal Armed Career Criminal Act.

March 2, 2010 in Mandatory minimum sentencing statutes, Offender Characteristics, Who Sentences? | Permalink | Comments (22) | TrackBack

Sunday, February 28, 2010

"Second chance for killer kids?"

The question in the title of this post is the headline of this lengthy article in today's Detroit Free Press.  Here is how the piece gets started:

Dontez Tillman and Thomas McCloud were 14-year-old middle schoolers in Pontiac in the summer of 2008. Neither was old enough to drive, drink, nor apply for a video store membership.

Today, Tillman and McCloud are serving mandatory life in a Lapeer prison, convicted as adults of first-degree murder in November for the beating deaths of two homeless men over three days with older teens. “I screwed up my life,” McCloud told the Free Press in a prison interview. “I wish I could take it all back, that I never left the house that day.”

Their case brings into focus Michigan’s position in a national debate over how to handle young killers.  The state has 352 prisoners serving mandatory life sentences for crimes committed while they were juveniles — the second-highest number in the world, behind Pennsylvania at 444.

Legislators and the U.S. Supreme Court are rethinking the idea of sending teens away to prison forever.  Michigan is among 12 states where legislation has been introduced that would ban the practice, or at least give judges some discretion.  Texas and Colorado in recent years have banned mandatory life for juveniles.

But Oakland County Prosecutor Jessica Cooper, whose office tried Tillman and McCloud, said the boys are exactly where they belong. “These are gut-wrenching, soul-searching determinations,” she said. As the debate continues, Tillman, now 15, and McCloud, now 16, spend their days in a juvenile unit at the Thumb Correctional Facility, an adult prison in Lapeer. At age 21, they will be transferred to the state’s adult prison population to spend the rest of their lives.

It is important to note that the two cases from Florida currently before the Supreme Court, Graham and Sullivan, involve juveniles sentenced to LWOP without having cause a death.  Consequently, unless the Supreme Court issues a very constitutional broad ruling in those cases, it is unlikely that middle schoolers like Tillman and McCloud will have their fates directly by these SCOTUS ruling.

It is also interesting to note that the two states noted in this article as having the largest number of mandatory life sentences for juvenile offenders are Michigan (which has never had the death penalty) and Pennsylvania (which functionally does not have an operating death penalty).  Meanwhile, the national leader in use of the death penalty, Texas, has eliminated mandatory life for juveniles.  These realities reinforce my sense that there can often be an inverse relationship between use of the death penalty for the worst murderers and use of other extreme punishments for less culpable offenders.

February 28, 2010 in Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17) | TrackBack

Friday, February 26, 2010

"Wisconsin Teen Gets 15 Years for Facebook Sex-Extortion Scam"

The title of this post is the headline of this piece from Wired.  Here are the basics:

A Wisconsin teenager was sentenced to 15 years in prison Wednesday for an extortion scheme that had him tricking male classmates into sending them nude photos of themselves, then blackmailing them with exposure if they didn’t have sex with him.

In 2008, defendant Anthony Stancl, who was 18 at the time, posed as a girl on Facebook and tricked more than 30 male classmates into sending him photos of themselves.  According to court documents, authorities found 300 photos of underage males on his computer as well as video of some of the victims exposing their genitals and masturbating; some of the victims were 15 years old....

Stancl told the victims that he was an extortion victim himself and was being forced to have sex with them and photograph it in order to prevent other photos of himself from being exposed.  His attorney, Craig Kuhary, says that Stancl’s activity was prompted by anxiety over his sexual orientation and the alienation he felt after he was humiliated and outed by another student.  Stancl claimed he had been sexually assaulted by an upperclassman during his sophomore year.

February 26, 2010 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

"'Midwest Madoff' sentenced to 9 years"

The title of this post is the headline of this new article from the St. Louis Disptach.  Given that the fraudster discussed in the article is female, I suppose she should be glad she is not being called a "Mrs. Madoff" as well as being glad that she got a sentence that's barely 5% of what Bernie Madoff received.  Here are the specifics of this case:

A $900 tanning bed for show pigs and a barn cooling system to encourage thick, prize-winning coats in cattle were but two of the personal items bought by the woman who committed the largest agricultural fraud in Missouri history, investigators said Thursday.

That woman, Cathy M. Gieseker, 45, was sentenced in federal court here to nine years in prison on a single mail fraud charge for bilking at least 179 Missouri farmers out of more than $27 million.  She pleaded guilty in November.  District Judge Charles Shaw and others in court Thursday referred to her as the "Midwest Madoff," a derisive reference to Wall Street swindler Bernard Madoff, who stole billions in a pyramid scheme.

Gieseker, who lived in Martinsburg, Mo., in Audrain County, claimed to have a special deal with agricultural giant Archer Daniels Midland that let her broker crops for premium prices.  Farmers turned over their crops to Gieseker, who promised to later pay them a high return for their yield.

Officials said that she had no such arrangement and that Gieseker merely churned money to pay her early customers with cash collected for the crops of later ones. It was a classic pryamid scheme, they said.

February 26, 2010 in Offender Characteristics, Race, Class, and Gender, White-collar sentencing | Permalink | Comments (1) | TrackBack

Thursday, February 25, 2010

Will Florida's "mini-Madoff" get a mini version of Madoff's 150-year prison sentence?

With fortuitious timing because I am in Florida this morning to talk about white-collar sentencing, this Reuters story provides another case-study in white-collar sentencing issues.  The piece is headlined "Florida's 'mini-Madoff' Nadel admits huge fraud," and here are the basics:

Arthur Nadel, a former Florida fund manager dubbed a "mini-Madoff" for running a decade-long investment fraud of nearly $400 million, pleaded guilty on Wednesday to criminal charges.

Nadel, 77, disappeared for two weeks before his arrest in January 2009. He had left a letter for his wife imploring her to use a trust fund for her benefit and "sell the Subaru if you need money," a reference to their motor vehicle.

The FBI arrested Sarasota, Florida-based Nadel in his home state, but the case was moved to New York because he traded through a brokerage in the city, Shoreline Trading, an affiliate of Goldman Sachs Group Inc.

Nadel, who looked frail in court and remained seated throughout the proceeding, pleaded guilty to an indictment of 15 charges, including securities fraud, mail fraud and wire fraud before Manhattan federal court Judge John Koeltl. "I understand the anger and rage of all of the people I let down so badly," Nadel told the court. "I want them all to know I will carry this burden for the rest of my life."...

Nadel admitted to creating false and fraudulent account statements for his Scoop Management LLC funds. Nadel lost money and stole investor money to pay for several businesses, including real estate in North Carolina, his wife's flower shop and private planes, prosecutors said. Nadel's guilty plea calls for him to forfeit $162 million....

Nadel has been unable to make bail and will remain in jail until sentencing on June 11 . Under the sentencing guidelines for his crimes, he can expect to spend the rest of his life in prison.

Parallels were drawn between Nadel and Madoff because they both ran Ponzi schemes in which early investors were paid with money from new clients, many of them Florida residents. Madoff is serving a 150-year prison sentence for orchestrating Wall Street's biggest investment fraud of as much as $65 billion.

In light of his age, even a 15-year sentence would likely be tantamount to a life sentence for Nadel.  And yet I doubt prosecutors would be content with that number because, as in the Madoff case, the ultimate sentence  in this case is more critical as a conceptual benchmark for other cases than for determining the personal fate of this elderly defendant.

February 25, 2010 in Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (11) | TrackBack

"In School and Out of Trouble? The Minimum Dropout Age and Juvenile Crime"

The title of this post is the title of this empirical piece I noticed at SSRN that suggests keeping kids in school may be even more effective than sending them to prison in order to reduce juvenile crime.  Here is the abstract:

Does increasing the minimum dropout age reduce juvenile crime rates?  Despite popular accounts that link school attendance to keeping youth out of trouble, little systematic research has analyzed the contemporaneous relationship between schooling and juvenile crime.  This paper examines the connection between the minimum age at which youth can legally dropout of high school and juvenile arrest rates by exploiting state-level variation in the minimum dropout age.

Using county-level arrest data for the U.S. between 1980 and 2006, a difference-in-difference-in-difference empirical strategy compares the arrest behavior over time of various age groups within counties that differ by their state’s minimum dropout age.  The evidence suggests that minimum dropout age requirements have a significant and negative effect on property and violent crime arrest rates for youth aged 16 to 18 years-old, and these estimates are robust to a range of specification checks.  Furthermore, the results are consistent with an incapacitation effect; school attendance decreases the time available for criminal activity.  Not only do these findings provide support for the efficacy of programs intended to keep youth in school and out of delinquency, but this information is likely to be of value to policy-makers deciding on whether or not to increase their state’s minimum dropout age.

February 25, 2010 in Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

Monday, February 22, 2010

What's the longest prison sentence ever served by a crooked prosecutor?

This local story, headlined "Ex-N.C. prosecutor gets 3-year sentence," got me thinking about the question that is the title of this post. Here are the details from the NC story:

Former Johnston County prosecutor Cindy Jaeger will spend at least three years in prison after pleading guilty today to her role in a scheme to fix drunken driving tickets.

Jaeger pleaded guilty to 10 counts each of obstruction of justice and tampering with official court documents. She was also sentenced to three years probation after her prison term ends and must pay a $25,000 fine.  "You are a traitor to your office and your oath," Superior Court Judge Henry Hight told Jaeger moments after sentencing her.

Five others involved in the scheme pleaded guilty last month to obstructing justice.  Lawyers Chad Lee and Lee Hatch were each sentenced to prison for four years.  Three others -- Jack McLamb, Vann Sauls and former assistant court clerk Portia Snead -- were put on probation.

Jaeger was accused of handing over signed copies of dismissal forms to private attorneys before she left her job as an assistant district attorney in September 2007.  The private attorneys then filed the forms in dozens of drunken driving cases, effectively making them go away.  Her attorney, David Freedman, estimated that she provided more than 50 signed dismissal forms to Lee and Hatch, close friends of hers. SBI agents found no evidence of money or gifts exchanging hands in this scheme.

Freedman, Jaeger's attorney, said that she had been exposed to poor training and guidance from Chad Lee, who trained her when they both worked as assistant district attorneys several years ago. The two remained close after Lee left the district attorney's office to go into private practice as a criminal defense lawyer.

I can think of some long sentences given to cops and judges gone bad, but I cannot readily recall many cases in which a prosecutor got a long prison term for criminal behavior while on the job.  Can any reader perhaps cite to cases of crooked prosecutors getting a double-digit prison sentence for on-the-job wrong-doing?

February 22, 2010 in Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (11) | TrackBack

Sunday, February 21, 2010

"Terminally ill fraudster given 'life sentence'"

The title of this post is the headline of this interesting article from the Atlanta Journal-Constitution sent my way by a helpful reader.  Here are excerpts:

Adolphus Hill knew the sentence -- any sentence -- he received Friday would likely be a life term.  A year ago, Hill pleaded guilty to his role in a fraudulent check-cashing scheme.  Earlier this week, he was diagnosed with terminal stomach cancer.

In an unusual court proceeding Friday, Hill lay handcuffed to his hospital bed at the Southern Regional Medical Center in Riverdale listening in a conference call to his sentence being handed down by a federal judge in an Atlanta courtroom.

Between deep coughs, Hill, 64, of Atlanta, said he regretted being part of a conspiracy that netted an estimated $622,900 from stolen checks.  The hearing was briefly interrupted when a nurse checked on Hill over the intercom in his room.

Hill was one of eight people charged and convicted in a scheme that involved hundreds of stolen checks, most of which were cashed at gambling casinos in Louisiana and Mississippi....

"I'm sorry about the victims and the people I've hurt," Hill told U.S. District Judge Bill Duffey. "I'm truly sorry." Duffey said he believes Hill's remorse is genuine. Because of his condition, Hill has had the chance to reflect on his lot in life and try and make amends, the judge said.

Duffey sentenced Hill to 84 months in prison, which was below the recommended term set by federal sentencing guidelines.  The judge said his primary concern is to make sure Hill is quickly transferred to a facility with the best oncology treatment available in the federal prison system.

During the sentencing hearing, Hill's attorney, Thomas Wooldridge, stood at the foot of Hill's hospital bed.  A federal marshal sat to the side and two others stood guard by the door.  Wooldridge said he is concerned about where Hill will be placed and receive treatment. "Practically speaking, any sentence the court gives will very likely be a life sentence," the defense attorney said....

Assistant U.S. Attorney Bill McKinnon acknowledged that the sentence "may well exceed Mr. Hill's life expectancy."  But there are provisions that allow the U.S. Bureau of Prisons to release terminally ill patients before their entire sentences are served, he said.  "It may be appropriate in this case," he said. "Right now, we just don't know."

February 21, 2010 in Offender Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, February 19, 2010

"Race and Gender as Explicit Sentencing Factors"

The title of this post is the title of this provocative new piece by Professor Carissa Byrne Hessick available via SSRN.  Here is the abstract:

This Symposium Article briefly traces the history of race and gender as explicit sentencing factors, identifies how the explicit treatment differed for race versus gender at sentencing, and explores how those differences persist in the modern discussion about sentencing policy. Historically, there were several differences between race and gender as sentencing factors, including the persistence of system-wide sentencing distinctions based on gender long after such distinctions based on race were prohibited.  And while system-wide distinctions tended to disadvantage both racial minorities and women, distinctions made by individual judges when sentencing specific defendants resulted in longer sentences for racial minorities while women generally received shorter sentences than men convicted of similar offenses.

Although modern sentencing systems do not permit the explicit consideration of race or gender, they continue to play roles in debates over modern sentencing policy.  Specifically, lawmakers are criticized for enacting policies that are thought to be based on racial stereotypes, and they are also criticized for failing to consider the differences between men and women when enacting other policies.  Given the different roles that race and gender play in the modern sentencing policy discussion, it appears that legal commentators who study gender at sentencing may be working at cross purposes with those who study race at sentencing.

February 19, 2010 in Offender Characteristics, Race, Class, and Gender | Permalink | Comments (2) | TrackBack

Notable suggestions from UK public on youth punishments

I came across this interesting sentencing article from across the pond, which is headlined "Flog Young Offenders And Put Them In Stocks."  Here are excerpts:

A new scheme asking for ideas on how to punish young offenders has been forced to reject many suggestions, including floggings and the stocks.  The Government asked members of the public in the North West to suggest jobs that youngsters could be ordered to carry out as part of their punishment.

In six weeks, 131 ideas were put forward including locking the youngsters in the stocks and pelting them with oranges.  One person suggested public floggings, saying: "They would soon lose all 'street cred' and NEVER re-offend again."

The drastic proposals were submitted through the Government website Making Good. Of the 131 ideas put forward 92 have been seen as "positive".  Sixty one of these gave specific details of a project to be undertaken.

The pilot scheme has been judged to be a success and is being rolled out across the country by Justice Secretary Jack Straw.  "Making Good will empower members of the public by giving them a say in how young offenders in their communities should make amends," he said. 

The scheme builds on existing community work programmes by allowing anyone to suggest jobs that teams of young offenders, aged from 10 to 17, could carry out.  The six-week pilot led to just 14 ideas being accepted, including putting up bird boxes in Liverpool parks and clearing a garden in a sheltered housing complex, while 13 others are being considered....

A spokeswoman for the Ministry of Justice said it had been assessed as a "high risk".  The publicity for the scheme warns: "Public suggestions will need to comply with a range of conditions and be subject to a thorough risk assessment."  Shadow justice secretary Dominic Grieve dismissed the scheme as an "X Factor style gimmick", and called on the Government to reduce re-offending rates instead.

February 19, 2010 in Criminal Sentences Alternatives, Offender Characteristics, Who Sentences? | Permalink | Comments (5) | TrackBack

Sunday, February 14, 2010

Intriguing (not quite) criminal past for mass killer at University of Alabama

This New York Times article, which is headlined "A Previous Shooting Death at the Hand of Alabama Suspect," discusses the notable history with the criminal law of the killer who went on a shooting spree at the University of Alabama.  Here is how the article begins:

The neurobiologist accused of killing three colleagues at the University of Alabama, Huntsville, on Friday fatally shot her brother in 1986 in suburban Boston, and the police there are now questioning whether their department mishandled that case when it let her go without filing charges.

Early Saturday, the police in Huntsville charged the neurobiologist, Amy Bishop, who they said was 45, with capital murder in the shootings Friday that also left three people wounded during a faculty meeting.  Dr. Bishop, who appeared to have had a promising future in the biotechnology business, had recently been told she would not be granted tenure, university officials said.

On Saturday afternoon, the police in Braintree, Mass., announced that 24 years ago, Dr. Bishop had fatally wounded her brother, Seth Bishop, in an argument at their home, which The Boston Globefirst reported on its Web site.  The police were considering reopening the case, in which she was not charged and the report by the officer on duty at the time was no longer available, said Paul Frazier, the Braintree police chief.

“The release of Ms. Bishop did not sit well with the police officers,” Chief Frazier said in a statement, “and I can assure you that this would not happen in this day and age.”  He said at a news conference on Saturday that the original account describing the shooting as an accident had been inaccurate and, The Globe said, that while he was reluctant to use the word “cover-up,” it did not “look good” that the detailed records of the case have been missing since 1988.

What's really interesting to consider in this case is what likely would have happened if criminal charges had been filed in 1986 after Bishop fatally shot her brother.  It seems likely she would have been able to plead, and also would have pleaded, guilty to some form of lesser homicide charge due to uncertainty about her criminal intent.  As a result, Bishop certainly would not have served more than a few years in prison, at most.  Thus, no one can sensibly assert that a tougher approach to her prior shooting would have prevented her from being free to commit another killing a quarter-century later.

And yet, had Bishop's earlier case been handed differently, it is really unlikely she would have had the professional and personal life that led her to become the "grant-winning scientist and a mother of four" who walked into a faculty meeting guns a-blazing.  Thus, one can sensibly assert that a tougher approach to her prior shooting would have changed the course of her life in ways that likely would not have brought her to the spot where she was driven to go on this particular Alabama shooting spree a quarter-century later.

Adding a final twist to this discussion of Bishop's criminal past is how this history should or will affect her criminal future.  When an Alabama prosecutor considers taking a plea to these capital charges or an Alabama jury considers a capital sentence, should Bishop's prior killing make them more eager to ensure she now gets the ultimate punishment?

UPDATE:  Still more intrigue has emerged surrounding Bishop, as detailed in this new Boston Globe report, which begins this way: "The professor who is accused of killing three colleagues at the University of Alabama on Friday was a suspect in the attempted mail bombing of a Harvard Medical School professor in 1993, a law enforcement official said today."

February 14, 2010 in Death Penalty Reforms, Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (6) | TrackBack

Thursday, February 11, 2010

Jewish murderer getting special attention as Florida execution date approaches

This article from the Orlando Sentinel, which is headlined "Jewish groups plead for Crist to save life of convicted killer Martin Grossman," puts an interesting spotlight on the intersection of religion and death penalty advocacy.  Here are the basics:

Orthodox Jewish groups are trying to persuade Gov. Charlie Crist to spare the life of Martin Grossman, a convicted killer scheduled for execution Tuesday.  More than 13,000 people have signed an online petition, and Amnesty International also has intervened.

Grossman's advocates argue that the jury never heard mental-health evidence that would support Grossman's case, he was under the influence of drugs and alcohol at the time of the crime and that he was only 19 when he shot a wildlife officer to death in Pinellas County in December 1984.  He was convicted the following year.

National Council of Young Israel, Agudath Israel of America, Orthodox Union, Chabad, Satmar, Rabbinical Alliance of America and the nonprofit Aleph Institute are among 200 organizations asking Crist to grant a 60-day stay of execution to allow a clemency application to be considered....

Grossman was convicted of shooting Margaret Park, 26, in the head after she found him and a friend at a nature reserve, where they went to fire a gun. Grossman asked Park not to report him because it would have been a violation of his probation on a burglary conviction.  There was a struggle, Park drew her gun and Grossman shot her with it.

I cannot help but wonder if all of these groups and individuals would be working so hard to advocate for a killer if his name was Martin Park and the victim was Margaret Grossman.  In other words, I think it is fair to suggest that it principally the religion of the offender (and perhaps also the victim), and not the particulars of the offense, that is generating much of the special attention in this case.

February 11, 2010 in Death Penalty Reforms, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (38) | TrackBack

Friday, February 05, 2010

"The Undiscovered Country: Execution Competency & Comprehending Death"

The title of this post is the title of this new piece by Jeffrey L. Kirchmeier now available on SRRN. Here is the abstract:

The United States Supreme Court has not created a clear Eighth Amendment standard to determine whether or not a capital defendant is competent to be executed. Justice Thomas best summarized the confusion about the Court’s jurisprudence in this area when he criticized the 2007 majority’s opinion in Panetti v. Quarterman as “a half-baked holding.”

This Article addresses one execution competency issue that has been left open by the Court: the question of to what extent a mentally ill capital defendant must understand the concept of death.  In other words, to be competent to be executed, must a mentally ill defendant comprehend that execution means the end of one’s physical life?

This Article considers the historical development of the ban on executing the insane, a ban with a murky history that has been passed down from medieval times and through Blackstone and English common law to modern day international law.  Because of a long historical pedigree, the Supreme Court essentially accepted the ban as a constitutional given in 1986.

The justifications for the ban, however, need to be the foundation for fashioning a standard out of the Court’s opinions.  The Article examines the Supreme Court precedent regarding the ban, statutory definitions of competency, and the other court decisions that have begun to consider whether or not there should be a requirement that a mentally ill defendant can comprehend the end of life to be competent.  The Article examines the policies behind the ban, and it uses them to conclude that the history and precedent require a death comprehension standard.  The Article proposes a standard that is consistent with the historical underpinnings of the ban on executing the insane and that is consistent with Supreme Court precedent.

February 5, 2010 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Wednesday, February 03, 2010

The low-hanging fruit and long sentencing options of § 922(g)

The Fourth Circuit has an interesting sentencing decison today in US v. Wright, No. 08-4679 (4th Cir. Feb. 3, 2010) (available here).  First, consider the panel's description of the defendant's crime:

Jeremy Wright sprayed twenty-two rounds from an AK-47 assault rifle into a crowded night club parking lot, killing a man sleeping in a car with a single bullet to the head.  Wright fired his rifle until he ran out of ammunition even though there were some two or three hundred people at the club, many of whom were pouring outdoors as the result of a fight that Wright had just instigated with rival gang members.  In addition to the man he killed, Wright also wounded a club patron in the course of his rampage.

Now, guess Wright's crime of conviction in federal court (hint: it is not murder, but it did lead to a sentence of life imprisonment).  Astute readers will know the answer from the title of this post or from this account of the sentencing issues raised an rejected in Wright:

On appeal, Wright raises three challenges to his sentence. He first argues that the use of his juvenile adjudications as predicate crimes under the ACCA violates the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), because South Carolina family courts do not employ juries.  Second, Wright claims that the burglaries he committed as a juvenile do not qualify as violent felonies under the ACCA because he did not "carry" firearms merely by stealing them. Finally, Wright asserts that the district court improperly referenced the sentencing guideline for first degree murder when it sentenced him.  We consider each of these arguments in turn.

February 3, 2010 in Almendarez-Torres and the prior conviction exception, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (2) | TrackBack

Thursday, January 28, 2010

Facebook enhancement for drunk driver provides notable example of social-media sentencing

This local sentencing story from the Buffalo News, which is headlined "Drunk driver gets into more trouble after posting Facebook photo," provides a new and notable example of what might be called "social-media sentencing."  Here are the details:

Ashley M. Sullivan is in Niagara County Jail, and Facebook may be to blame as much as the car crash that killed a Niagara Falls man.

Sullivan, 17, of Linden Avenue, North Tonawanda, was sentenced Wednesday afternoon to six months in the County Jail and five years' probation for crashing her car while drunk and killing her boyfriend May 30 on Sweeney Street in North Tonawanda.  She pleaded guilty Nov. 18 to criminally negligent homicide and misdemeanor driving while intoxicated.

The Buffalo News has learned that Sullivan went to Florida a month after the crash and posted a photo on her Facebook Web page captioned, "Drunk in Florida."

"I'm troubled by your conduct since the crash," County Judge Matthew J. Murphy III told Sullivan, "and that's the reason for the jail sentence."  Murphy also refused to grant Sullivan youthful offender status for the same reason.  "I don't believe the defendant has earned it," the judge said.

Murphy, in reading the terms of probation, went out of his way to emphasize to Sullivan that she isn't allowed to drink for the next five years.  "You're 17 years old. You're not old enough to drink," Murphy said.

When defense attorney Glenn Murray said in court, "This young woman is remorseful," someone laughed among a crowd of more than two dozen of the victim's friends and relatives, drawing a reprimand from the judge....

Murphy, who could have sentenced Sullivan to as long as four years in state prison, said his decision was difficult "because of the defendant's extreme youth and her past history."  He ordered that after Sullivan gets out of jail, she will be under electronic home monitoring for a year. He also revoked her driver's license.

"My client failed to consider the consequences, the tragic consequences," Murray said.  "This offender understands the tragedy she is responsible for.  She will never forgive herself."  He said Sullivan had decided not to speak, although when Murphy asked her, Sullivan managed to say, "I'm very sorry," before breaking down in tears.

It is not at all unusual, though it can sometimes be controversial, for sentencing judges to decide to increase a defendant's based on post-offense or even post-conviction conduct.  Nevertheless, the impact here of a social-media message on Facebook adds an extra layer to this common sentencing issue.  Not only does the sentencing judge here learn that the underage defendant was drinking heavily again not long after having just killed her boyfriend via drinking and driving, but he also discovers that she does not have the good sense not to brag to friends about her persistent misbehavior.  For these and other reasons, I think Sullivan should consider herself very lucky to have only gotten a six month jail term here.

January 28, 2010 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (21) | TrackBack

Wednesday, January 27, 2010

Fourth Circuit panels spliting over Atkins claims from Virginia

The Fourth Circuit has a pair of lengthy rulings today involving two different panels providing two different discussions of two Virginia death row defendants' claims that the Supreme Court's Atkins ruling precludes their executions: Though the legal issues in these cases are similar, perhaps the most notable similarity is the fact that the only member of both panels, Judge Gregory, wrote a separate opinion concurring in part and dissenting in part in both cases.

January 27, 2010 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Kansas legislature considering bill for PTSD-based sentence reductions for veterans

As noted previously on this blog, there have been some notable recent examples of judges reducing a sentence based on the hardships a defendant previously suffered as a result of military service. Now, as detailed in this local article from Kansas, this concept is getting some legislative attention:

Judges would be able to reduce sentences for defendants who are combat veterans and have post-traumatic stress disorder, under a bill being considered by the Kansas Legislature.

The measure is being pushed by state Rep. Tom Sloan, R-Lawrence, who said his aim is to assist returning veterans from Iraq and Afghanistan who become entangled in the criminal justice system to get the help they may need if they are suffering from PTSD. “They are returning from very stressful situations,” Sloan said. “If they get in trouble, maybe they don’t need to go to prison, but they need to get services.”...

The bill would give a judge the discretion to allow a departure from sentencing guidelines if the defendant has been diagnosed with PTSD and served in combat zones.

Committee Chairwoman Pat Colloton, R-Leawood, said several states are trying ways to connect returning veterans who run afoul of the law with needed health and social services. She said the proposals aren’t intended to excuse unlawful behavior but to get at the root of the problem and try to help

Sloan said he got the idea for the bill after discussions with Maj. Gen. Tod Bunting, the Kansas adjutant general. Recent reports have indicated that as many 300,000 veterans of the Iraq and Afghanistan wars, which is nearly 20 percent of returning forces, are likely to suffer PTSD or major depression.

Some recent related posts:

January 27, 2010 in Offender Characteristics, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (32) | TrackBack

Thursday, January 21, 2010

Light sentence for heavy-duty crime in Ohio

I cover a lot of heavy topics on this blog, and this recent sentencing story from Ohio seems even more hefty than most.  The piece is headlined "Overweight Woman Sentenced in Boyfriend's 'Sitting' Death," and here are the meaty specifics:

The details are shocking and hard to believe, but authorities say a woman -- who was believed to weigh around 300 lbs. at the time -- sat on her boyfriend and killed him last summer.  On Wednesday, Mia Landingham, pleaded guilty to involuntary manslaughter in the death of her 120 lb. boyfriend, Mikal Middleton-Bey.

It happened back in August during an altercation between the couple, who share three children together.  During Landingham's sentencing, her boyfriend's family spoke of the pain she has caused their family.  "I just want to let you know how much you have hurt us by taking Mikal away from us," said Sharon Phillips, the victim's step-mother.

Landingham's public defender told the judge there was a long history of domestic abuse between his client and her late boyfriend.  He also pointed out she has no prior criminal record.  Landingham, then told the judge she was sorry for squashing the father of her children. "I just want to say that I am sincerely sorry about this situation... I wish I could take it back."

Judge Carolyn Friedland sentenced her to three years probation and 100 hours community service.  Landingham was then immediately released from jail.

While Middleton-Bey's family hoped Landingham would eventually be able to take part in her children's lives, they were surprised that she got no additional jail time.  "So basically you can say that I can go sit on somebody and get probation?" said one of the victim's sister.  "I feel there wasn't no justice."  Landingham faced a maximum of five years behind bars.

I know I should not make light of this situation, especially given how much the crime must weigh on all the members of the victim's family.  But it is hard to resist being light-hearted in response to this query: "So basically you can say that I can go sit on somebody and get probation?".

January 21, 2010 in Offender Characteristics, Offense Characteristics | Permalink | Comments (27) | TrackBack

Tuesday, January 19, 2010

"Punishing Lawyers in Corporate Frauds"

The title of this post is the headline given to this new piece by Peter Henning over at the New York Times' DealBook page.  Here are snippets from the effective piece about the sentencing lawyers involved in corporate frauds:

Joseph P. Collins, a former partner at the international law firm Mayer Brown, received a seven-year prison sentence for his role as the lead attorney for the failed futures trading firm Refco Inc., whose collapse as a result of accounting fraud cost investors and lenders more than $2 billion.  Mr. Collins was convicted of conspiracy, wire fraud and securities fraud in July 2009 for his role in the stunning demise of Refco only weeks after the firm’s initial public offering.

The company hid debts owed by its chief executive, Phillip R. Bennett, from a buyout firm in an leverage buyout in 2004 and then in the public offering in 2005.  In addition to Mr. Collins’s conviction, Mr. Bennett received a 16-year sentence, and Refco’s former president, Tone N. Grant, was sentenced to 10 years for their role in the accounting fraud.

Mr. Collins was Refco’s long-time outside counsel and the firm was his largest client, generating $35 million in billings for Mayer Brown.  It is rare that an outside lawyer is prosecuted for legal representation of a client, and the case can be understood as part of a growing trend in which federal prosecutors and regulatory agencies, including the Securities and Exchange Commission, focus on those who enable corporate fraud along with the officers and directors who orchestrate it....

What is striking about the sentence that Mr. Collins ... received is its length.  This is largely a product of a change in the Federal Sentencing Guidelines adopted in late 2001 that substantially increased the likely sentence in fraud cases.  The United States Sentencing Commission amended the fraud-loss table used to calculate the sentences so that a loss of more than $400 million pushed the potential punishment to more than 20 years and could even result in a term of life in prison when other factors, such as the number of victims, were considered....

Given the sizable losses in the Refco case, Mr. Collins may be fortunate to have received only seven years, as the potential punishment under the sentencing guidelines called for a maximum of 85 years in prison.  The Federal District Court rejected his request not to be sent to prison at all, an unlikely result given the amount of the loss.  Mr. Collins is seeking a new trial based on recently revealed e-mails, and he is certain to appeal the conviction.  Whether the district court permits him to remain free pending the appeal remains to be seen.

The substantial sentence is sure to be noticed in major law firms throughout the country, but whether it has any deterrent effect is another issue.

January 19, 2010 in Offender Characteristics, White-collar sentencing | Permalink | Comments (9) | TrackBack

Accounting for the skewed punishment accountability in state crime codes

A helpful reader alerted me to this interesting column from the Philadelphia Inquirer, which is headlined ""Pa. punishments often go beyond the crime."  The piece reports on important work being done by Professor Paul Robinson and his students concerning the perceptions and realities of sentencing in one state's criminal justice system.  Here are a few highlights:

Did you know that peeking at someone's e-mail in Pennsylvania carries a stiffer maximum penalty than keeping a slave?  Or that state law looks more harshly at someone who stole $2,000 than someone who sold a child?

These are just some of the weirder quirks in the piecemeal approach to lawmaking documented by a Penn research group for the state legislature.  University of Pennsylvania law professor Paul Robinson had his students determine this fall whether criminal laws were written in an orderly way. What they found was a "hodgepodge," as State Sen. Stewart Greenleaf, chairman of the Senate Judiciary Committee, put it. "It's more than inconsistent," the Republican said. "It's unfair."

Students found scores of serious crimes with lesser penalties than penalties for lesser crimes.  And polling of Pennsylvania residents turned up an additional 100 or so laws whose sentencing ranges were out of whack with public sentiment.

Robinson blames "aggressive politics." The more legislators feel the need to show their constituents they're responsive to the latest outrage in the media, the more punitive are the laws they write. "Usually some incident happens, it gets in the headlines, and legislators get worked up," he said. "They feel obliged to do something about it. The natural effect is to exaggerate the penalty."

Pennsylvania last gave its laws a good scrubbing in 1972, when it simplified, clarified, and organized its criminal code.  Since then, the code has more than doubled in size, to 636 offenses and suboffenses.  On top of that, legislators have added definitions of criminal offenses in 1,648 more sections of state law.

Researchers gauged the vastly different attitudes Pennsylvanians have about how much punishment should fit a crime by asking 131 residents from across the state to compare the seriousness of offenses.  Take slavery, for instance.  Keeping an adult against his or her will, according to the law, is a first-degree misdemeanor, with a maximum penalty of five years.  But Pennsylvanians found that crime as serious as a first-degree felony, which can bring a 20-year term.

In most examples, the law proved harsher than popular opinion.  The law puts the maximum sentence for selling a bootlegged Beatles CD at five years.  Pennsylvanians thought it was worth no more than 90 days. Reading someone else's e-mail without permission carries a seven-year term.  Again, Pennsylvanians thought 90 days was more like it. ...

The problems with the law run deeper than disorganization.  Unequal justice erodes people's confidence in the system. Matt Majarian, one of Robinson's second-year students, says: "If people have little confidence in the system, they will be less willing to serve on juries, less willing to call police, they'll be more willing to engage in vigilantism.  This results in real problems in law enforcement and criminality."

The students presented their findings before the state Senate and House Judiciary Committees in December. They've proposed that the legislature reorganize its criminal code, evaluate the relative severity of punishments, and ensure that laws are not written too broadly.

I strongly suspect that Pennsylvania is not at all unique in this regard, and I hope Professor Robinson (or others) will consider conduct this sort of study and analysis of skews in other state criminal codes.

January 19, 2010 in Offender Characteristics, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (8) | TrackBack