Saturday, May 01, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, April 30, 2010

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

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

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

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

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

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

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

Federal prosecutors now seeking 25-year prison term for Rubashkin

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

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

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

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

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

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

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

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

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

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

Related posts on the Rubashkin case:

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

Wednesday, April 28, 2010

Federal district judge rejects corporate plea deal

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, April 25, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, April 23, 2010

Comdemned battered female murderer raising interesting issues in Tennessee

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, April 22, 2010

Interesting discussion of state juve bind-over procedures

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

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

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

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

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

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

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

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

Tuesday, April 20, 2010

Noting SCOTUS disinterest in juve priors as basis for enhanced adult sentence

The fact that the Supreme Court could soon announce new constitutional principles for sentencing juvenile offenders in in the pending Graham and Sullivan cases makes extra interesting the Justices' decision to deny cert in a case concerning juve priors and an Apprendi challenge from California.  This piece from the San Francisco Chronicle, which is headlined "'Three strikes' can count juvenile convictions," provides the details:

The U.S. Supreme Court on Monday upheld California judges' authority to count adult felons' convictions in juvenile court in determining whether to sentence them to life in prison under the state's "three strikes" law.

The court denied a San Jose man's appeal of his 2005 sentence for possessing a gun as a convicted felon. Vince Nguyen's sentence was doubled, to 32 months, based on his assault conviction in a 1999 juvenile court proceeding, when he was 16.  Under the three strikes law, he could have been sentenced to 25 years to life in prison if his record had included a second such conviction as a juvenile.

The 1994 three strikes law, the nation's toughest sentencing measure for repeat offenders, requires a sentence of 25 to life for anyone convicted of a felony at age 18 or older who has committed at least two serious or violent felonies in the past.  With one such previous conviction, the normal sentence for the new crime is doubled.

Unlike most states with repeat-felon laws, California classifies convictions for serious or violent crimes in juvenile court, at age 16 or 17, as strikes.

Nguyen claimed that increasing a sentence based on a juvenile conviction violated a U.S. Supreme Court ruling in 2000 entitling defendants to a jury trial on any facts used to lengthen their sentences beyond the usual maximum term.  The California Supreme Court ruled against Nguyen in July 2009, saying the use of his juvenile conviction to increase his sentence as an adult did not violate his right to a jury trial.

April 20, 2010 in Almendarez-Torres and the prior conviction exception, Offender Characteristics, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, April 19, 2010

New USSC amendments expanding prison alternatives and addressing certain offender characteristics

As detailed in this just posted official press release, the United States Sentencing Commission has "voted to promulgate sentencing guideline amendments that expand the availability of alternatives to incarceration and address the relevance of certain specific offender characteristics in sentencing."  Here's more of the details from the press release:

The Commission also voted to promulgate guideline amendments on additional topics including hate crimes, the calculation of a defendant’s criminal history, and sentencing corporate offenders.

The amendment on sentencing alternatives has several key components.  First it informs courts that departures from the guidelines may be warranted in situations where an offender’s criminal activity is related to a treatment issue such as drug or alcohol abuse or significant mental illness and sentencing options such as home or community confinement or intermittent confinement would serve a specific treatment purpose.  The Commission also recommends in a new application note that courts take into consideration the effectiveness of residential treatment programs as part of their decision to impose community confinement. Second, the Commission voted to increase the availability of alternative sentencing options by expanding by one offense level Zones B and C in the guidelines’ sentencing table.  According to the guidelines, offenders in Zones B and C are eligible, in the court’s discretion and subject to statutory limitations, for alternatives to straight imprisonment such as split sentences, home or community confinement....

The Commission also voted to amend guideline policy statements regarding age, mental and emotional conditions, physical condition, and military service recognizing that these factors may be relevant to the sentencing process courts undertake.  Previously, these factors were deemed as “not ordinarily relevant” in determining whether a sentence outside the guidelines was warranted. The amended policy statement provides that these factors may be relevant if they are relevant to an unusual degree and distinguish the case from the typical case.  This amendment reflects the Commission’s extensive review of offender characteristics that included reviewing case law and relevant literature, receiving public comment and hearing testimony, and conducting extensive data analyses....

Any amendments made by the Commission to the guidelines must be submitted to Congress on or before May 1 of each year and become effective on November 1 if not disapproved by Congress.

Kudos to the USSC for moving on these important federal sentencing fronts.  Though I want to see the exact language of the amendments to figure out if mondo-kudos are meritted, the Commission is to be complimented for (finally!) taking a more dynamic approach to some key issues that called for additional attention in the wake of Booker.

April 19, 2010 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, April 15, 2010

Way below-guideline sentence for "drug dealer in a lab coat" prompts lots of questions

This Los Angeles Times article reporting on a federal sentence handed down yesterday in California, which is headlined "4-year prison term ordered for 'drug-dealing doctor'," implicates nearly every challenging post-Booker federal sentencing issue that has been confounding federal judges and practioners for the last 5+ years.  Here are the fascinating details:

A Duarte physician who prosecutors said was "nothing more than a drug dealer in a lab coat" was sentenced to four years in federal prison Wednesday for prescribing powerful and highly addictive pain killers to people who had no medical need for the drugs.

The sentence was far less than the 17 years prosecutors had been seeking for Dr. Daniel J. Healy, and well below federal sentencing guidelines that called for a term of 17 to 22 years. Monrovia Police Det. Rich Doney, who worked the case with investigators from the Drug Enforcement Administration, called the sentence "a mockery of justice." "Some of his victims will spend longer than that in rehab," Doney said.

Healy, clad in a green jail-issue jacket and shackled at the waist and ankles, showed no emotion as the sentence was announced. Before imposing the sentence, U.S. District Judge Manuel L. Real said he struggled with balancing the seriousness of Healy's criminal conduct with his lack of a prior criminal record and the legitimate aspects of his medical practice. "He's not the ordinary, everyday drug merchant which we see in this court," Real said.

Real seemed conflicted as he gave a long, at times meandering address about the defendant. At one point Real said, "The evidence shows that Dr. Healy was concerned about the addictions of his patients." Moments later, he said, "Dr. Healy was in this for the money. There's no question about that."

Regardless of Healy's motivation, Real noted that as a result of his conviction, Healy's career as a doctor -- and the financial benefits that came with it -- was over. "Dr. Healy will never be able to do what he's done again when he's released from prison," Real said.

Defense attorney Roger J. Rosen said Healy was thankful for Real's "measured, thoughtful" sentence that took into account all aspects of the case. "He did what a judge was supposed to do," Rosen said.

Healy, according to prosecutors, led the nation in 2008 in ordering hydrocodone -- painkillers sold under the brand names Vicodin and Norco. They accused Healy of wildly overprescribing and selling the drug, for which there is a thriving black market, particularly among young adults. Some of Healy's patients were in their late teens and early 20s and had been friends of Healy's sons. Some patients, court documents state, would leave with hundreds or even thousands of pills at a time.

One man who was observed by police entering Healy's clinic before it opened for the day was pulled over a short time later and had 12 commercial-size bottles of Vicodin and three containers of Xanax in his car -- 7,500 pills in all. The man told police he'd just paid Healy more than $5,000 cash for the drugs, and was planning to sell them for profit, according to court records.

Healy pleaded guilty in July to intentionally distributing oxycodone without a legitimate medical purpose. The remaining 16 counts against him were dropped in exchange for the plea. In addition to imposing the four-year prison term, Real sentenced Healy to 10 years supervised release, 5,000 hours of community service and a $150,000 fine. "The end result is that this particular drug-dealing doctor is off the streets," said Assistant U.S. Atty. David Herzog, who prosecuted the case.

Here are just a few follow-up questions of both theory and practice on which I would love reader input via the comments:

1.  Do folks who believe strongly in retributivist theories of punishment agree that this sentence makes "a mockery of justice"?

2.  Do folks who believe strongly in utilitarian theories of punishment agree that this sentence makes "a mockery of justice"?

3.  Do folks think prosecutors should (and/or will) appeal this sentence as substantively unreasonable?

4.  Do folks think the addition of 5,000(!) hours of community service (which is roughly 2.5 years of indentured servitude) makes the relatively short prison term more reasonable or should that part of the sentence be viewed as insignificant in a post-Booker reasonableness analysis?

April 15, 2010 in Booker in district courts, Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (12) | TrackBack

Sunday, April 11, 2010

"Class Matters" gives needed attention to socioeconomic criminal justice questions

Now available via SSRN is this important new piece by Professor Erica J. Hashimoto titled "Class Matters." As its abstract highlights, this piece gives overdue attention to a very important aspect of modern criminal justice realities:

Poor people constitute one of the most overrepresented categories of people in the criminal justice system. Why is that so? Unfortunately, we simply do not know, in large part because we have virtually no information that could provide an answer. As a result of that informational vacuum, policymakers either have ignored issues related to socioeconomic class, instead focusing on issues like drug addiction and mental illness as to which there are more data, or have developed fragmented policy that touches on socioeconomic class issues only tangentially. The bottom line is that without better data on the profile of poor defendants, coherent policy to address socioeconomic class issues simply will not be enacted. Because we lack data on socioeconomic class, we also cannot ascertain whether the system enforces criminal laws equally or whether it targets poor people. The inability to prove (or disprove) class discrimination prevents policymakers from enacting any solutions and leads to mistrust in the system.

This Article highlights the potential beneficial uses of general data on criminal defendants, and data on socioeconomic class of criminal defendants in particular. It goes on to document the data we currently have on socioeconomic class of criminal defendants, and the shortcomings both in our analysis of that data and in our data collection. Finally, the Article provides a roadmap for how states and the federal government should collect and analyze data on the socioeconomic class of criminal defendants.

April 11, 2010 in Offender Characteristics, Race, Class, and Gender, Recommended reading | Permalink | Comments (1) | TrackBack

Friday, April 09, 2010

How should we deal with (mature?) teenagers who knowingly download the worst kiddie porn?

The question in the title of this post is prompted by this intriguing local story from Florida, which is headlined "Teenager pleads guilty to possession of child porn, becomes sex offender." Here is how the piece starts:

Patrick Melton, 17, became a sex offender Thursday after pleading guilty to 50 counts of possession of child pornography.  Hillsborough County sheriff's detectives first learned of Melton's Internet activity in December 2008.  Using a search warrant for his home that following March, they found the images, including one of a man molesting a 2-year-old.

When they tracked Melton down at Tampa Bay Tech, deputies said he admitted downloading them. He told a detective he was 9 years old when an Internet search typo introduced him to child pornography.  He meant to type "hot rods," he said. Instead, he typed "hot bods."

Prosecutor Rita Peters said Melton admitted to authorities that if he had not gotten caught, he might have gone on to touch a child.

Taking into account his age, candor with detectives, stable home environment and the fact that many of the images he viewed were of children within his age bracket, prosecutors offered him a deal: six years of probation with sex offender treatment. Melton took it.

Given the various aggravating factors apparently in the mix here — a long history of downloading, lots of images, image involving very young kids, an admitted interest in molestation — I think there is little doubt that the defendant's age here played a major role in his probation sentence.  But, as spotlighted by other cases from Florida involving severe sentences for teenagers (including two now before the Supreme Court involving LWOP prison terms), Florida prosecutors and judges do not always view teenagers as less culpable than adults.  And there are, of course, statistical reasons to worry that teenager offenders present the highest risk of recidivism.

In light of all these factors, I wonder if readers are generally pleased or generally troubled by the (exceptional?) sentencing outcome in this case.  More broadly, I wonder if folks think there are special reasons that teenagers should get a special break when they are involved in on-line sex crimes.

April 9, 2010 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Wednesday, April 07, 2010

Potent new district court opinion assailing mandatory minimum sentencing

Thanks to this post at the Second Circuit Sentencing Blog, I just learned about the potent opinion issued last week by US District Judge John Gleeson in United States v. Vasquez, No. 09-CR-259 (E.D.N.Y. March 30, 2010) (available for download below).  The opinion is a must-read for various reasons, as these opening and closing paragraphs suggest:

When people think about miscarriages of justice, they generally think big, especially in this era of DNA exonerations, in which wholly innocent people have been released from jail in significant numbers after long periods in prison.  As disturbing as those case are, the truth is that most of the time miscarriages of justice occur in small doses, in cases involving guilty defendants.  This makes them easier to overlook.  But when they are multiplied by the thousands of cases in which they occur, they have a greater impact on our criminal justice system than the cases you read about in the newspapers or hear about on 60 Minutes.  This case is a good example....

As a result of the decision to insist on the five-year mandatory minimum, there was no judging going on at Vasquez’s sentencing. Though in theory I could have considered a sentence of greater than 60 months, even the prosecutor recognized how ludicrous that would be, and asked for a 60-month sentence.  But the prosecutor’s refusal to permit consideration of a lesser sentence ended the matter, rendering irrelevant all the other factors that should have been considered to arrive at a just sentence.  The defendant’s difficult childhood and lifelong struggle with mental illness were out of bounds, as were the circumstances giving rise to his minor role in his brother’s drug business (i.e., it was to support an addiction, not to become a narcotics entrepreneur with a proprietary stake in the drugs), the fact that he tried to cooperate but was not involved enough in the drug trade to be of assistance, the effect of his incarceration on his three-year-old daughter and the eight-year-old child of Caraballo he is raising as his own, the fact that he has been a good father to them for nearly five years, the fact that his prior convictions all arose out of his ex-wife’s refusal to permit him to see their three children.  Sentencing is not a science, and I don’t pretend to be better than anyone else at assimilating these and the numerous other factors, both aggravating and mitigating, that legitimately bear on an appropriate sentence.  But I try my best to do just that, and by doing so to do justice for the individual before me and for our community.  In this case, those efforts would have resulted in a prison term of 24 months, followed by a five-year period of supervision with conditions including both other forms of punishment (home detention and community service) and efforts to assist Vasquez with the mental health, substance abuse, and anger management problems that have plagued him, in some respects for his entire life.  If he had failed to avail himself of those efforts, or if, for example, he intentionally had contact with Melendez without the prior authorization of his supervising probation officer, he would have gone back to jail on this case.

The mandatory minimum sentence in this case supplanted any effort to do justice, leaving in its place the heavy wooden club that was explicitly meant only for mid-level managers of drug operations.  The absence of fit between the crude method of punishment and the particular set of circumstances before me was conspicuous; when I imposed sentence on the weak and sobbing Vasquez on March 5, everyone present, including the prosecutor, could feel the injustice.

In sum, though I am obligated by law to provide a statement of "reasons" for each sentence I impose, in this case there was but one: I was forced by a law that should not have been invoked to impose a five-year prison term.

Download Vasquez opinion by Judge Gleeson

April 7, 2010 in Mandatory minimum sentencing statutes, Offender Characteristics, Who Sentences? | Permalink | Comments (28) | TrackBack

Tuesday, April 06, 2010

"Aging Prisoners, Increasing Costs, and Geriatric Release"

The title of this post is the subtitle of this terrific and timely new publication from the Center on Sentencing and Corrections at the Vera Institue of Justice. Here is how the Center summarizes the piece (which is authored by Tina Chui):

Correctional facilities throughout the United States are home to a growing number of older adults with extensive, costly medical needs. This report examines statutes related to the early release of geriatric inmates in 15 states and the District of Columbia and concludes that these provisions are rarely used, despite the potential of reduced costs at minimal risk to public safety. The author identifies factors that help explain the discrepancy and provides recommendations for addressing it.

Here is part of the piece's executive summary:

This report is based upon a statutory review of geriatric release provisions, including some medical release practices that specifically refer to elderly inmates. The review was supplemented by interviews and examination of data in publicly available documents.

At the end of 2009, 15 states and the District of Columbia had provisions for geriatric release. However, the jurisdictions are rarely using these provisions. Four factors help explain the difference between the stated intent and the actual impact of geriatric release laws: political considerations and public opinion; narrow eligibility criteria; procedures that discourage inmates from applying for release; and complicated and lengthy referral and review processes.

This report offers recommendations for responding to the disparities between geriatric release policies and practice, including the following:

  • States that look to geriatric release as a cost-saving measure must examine how they put policy into practice. For instance, they should review the release process to address potential and existing obstacles.
  • More analysis is needed to accurately estimate overall cost savings to taxpayers—and not just costs shifted from departments of corrections to other agencies. 
  • More effective monitoring, reporting, and evaluation mechanisms can improve assessments of the policies’ impact. 
  • Creative strategies allowing older individuals to complete their sentences in the community should be piloted and evaluated.
  • Finally, to protect public safety, states should consider developing relevant risk- and needs-assessment instruments, as well as reentry programs and supervision plans, for elderly people who are released from prison.

April 6, 2010 in Offender Characteristics, Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Friday, April 02, 2010

Should sexting lead to sex offender registration?

The question in the title of this post is inspired by this long ABC News piece from a segment on Nightline, which is headlined "'Sexting': Should Child Pornography Laws Apply?; Legal Debate Springs Up After Man Put on Sex Offender List for Forwarding Risque Images." Here is a snippet:

NYU law professor Amy Adler says "sexting" -- teens sending and receiving pictures of themselves in sexually suggestive poses -- wasn't even on the Supreme Court's radar when justices made their pornography ruling 28 years ago. "Technically, it is child pornography," said Adler. "But I don't think it's the kind of case where child pornography law is the right legal framework to use to judge it."...

"One thing is I think we may be sending mixed messages to teens right now, because mainstream culture is showing teens in all sorts of sexual scenarios," said Adler. "Mainstream television with "Gossip Girl," showing teens hooking up, Miley Cyrus engaging in what many people thought was pole dancing at the "Teen Choice Awards." So on the one hand we have mainstream sexual depiction of teens, and on the other hand we're telling teens that if they do that themselves, they can go to jail."

Plenty of teens are finding that out. In Iowa, Jorge Canal had to register as a sex offender, like Alpert, for sending a nude picture of himself to a 15-year-old girl. He was 18 at the time. In separate cases in Pennsylvania and Ohio, kids who've sent or received and distributed sexy photos have agreed to curfew, community service, or no cell phone or Internet usage for a few months.

"Child pornography law was crafted to protect children from pedophiles, that's the idea behind it," said Adler. "But now what we have is the law applying to situations where the child himself or herself is making the pornography. So it's this odd situation where suddenly the pornographer and the victim are one in the same person. And in my view that's not the kind of scenario that child pornography law should cover."

Three states -- Nebraska, Utah and Vermont -- have already changed their laws. Fourteen other states ... are considering changes.

April 2, 2010 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (16) | TrackBack

"2,500 cons could get 'spring' break"

The title of this post is the headline of this New York Post article discussing the possible consequences of the Second Circuit's important ruling earlier this week that declared unconstitutional New York state's Persistent Felony Offender sentencing law (basics here).  Here's more:

The cell doors aren't being sprung open just yet -- but as many as 2,500 career criminals statewide could challenge their lengthy prison sentences because of a controversial federal court ruling. The ruling effectively killed a popular "three strikes and you're out" provision of the criminal code that gave judges great leeway in sentencing habitual offenders to life in prison.

There were 2,467 inmates serving 15 years to life as "persistent felony offenders" as of Jan. 1, according to the state Department of Correction. Many of these felons could now request their sentences be overturned after the US 2nd Circuit Court of Appeals ruled Wednesday that the repeat-offender sentencing laws for nonviolent offenders is unconstitutional.

Of the 2,467 persistent felony offenders, just 183 are confirmed to be nonviolent. The remainder of the inmates are in a gray area, with mixed violent and nonviolent records that make it difficult to determine how many could take advantage of the ruling and get out early.

"Some of these guys are persistent violent felony offenders and will not be affected. Some of them may not be violent offenders," said Correction spokesman Erik Kriss. "It's hard to know whether all 2,284 would or wouldn't be [applicable]," he added.

April 2, 2010 in Blakely in the States, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Thursday, April 01, 2010

Pre-teen accused killer to be tried as an adult in Pennsylvania

Jordanbrown_mug__160 As explained in this article from the Pittsburgh Post-Gazette, a state judge earlier this week puts Pennsylvania on track to try perhaps the youngest ever defendant as an adult.  The article is headlined "12-year-old boy to be tried trial as adult: Accused of killing father's fiance, her unborn child," and here are the details:

A 12-year-old boy charged with killing his father's pregnant fiance is unlikely to be rehabilitated in the juvenile justice system by his 21st birthday, so he will stand trial as an adult, a Lawrence County judge ruled Monday.

If convicted of first-degree murder, legal experts say, Jordan Brown would be the youngest person in the country to serve a life sentence in prison without parole.

Police say Jordan fatally shot Kenzie Houk, 26, with a 20-gauge shotgun as she slept in their New Beaver farmhouse in February 2009. Her unborn son, who was nearly full term, also died. Jordan was 11 at the time.

"There is no indication of any provocation by the victim that led to her killing," Judge Dominick Motto wrote in his ruling. "The offense was an execution-style killing of a defenseless pregnant young mother. A more horrific crime is difficult to imagine."

Jordan's attorneys had asked Judge Motto to move the case to juvenile court, relying largely on testimony from a defense psychologist who said the boy would be at "low-risk" for future violence. That conclusion was "extremely vague," Judge Motto wrote, noting that the psychologist, Kirk Heilbrun, did not fully consider the possibility of Jordan's guilt in his assessment.

At the heart of the judge's decision was Jordan's refusal to take responsibility for the crime, which both Dr. Heilbrun and prosecution psychiatrist John S. O'Brien II, testified is necessary for rehabilitation. The law, however, does not require a confession to move a case to juvenile court. Dr. O'Brien said it is unlikely the boy will ever admit guilt, "thus making the prospects of rehabilitation within the confines of the juvenile court jurisdiction likely to be unsuccessful," the judge wrote....

The judge's order drew dismay from juvenile justice experts, who said Jordan's brain is not fully developed and he is incapable of the criminal sophistication prosecutors allege....

Judge Motto based his decision on, among other factors, the impact of the killings on the community and on Ms. Houk's family.  He looked at Jordan's background, his degree of culpability, his mental capacity and "the degree of criminal sophistication exhibited by the child."

Prosecutors have said Jordan harbors resentment when he feels treated unfairly.  The impending birth of his half-brother, named for his father, Christopher, likely made him similarly resentful, they said, as he was asked to move out of his room to accommodate the baby.

Police say Jordan hid a 20-gauge shotgun under a blanket so Ms. Houk's daughter would not see it, shot Ms. Houk and then left for school, discarding a shell casing outside their home.  "It is also relevant that the nature and the commission of the offense shows a significant degree of forethought, planning, and an effort on the defendant's part to make sure that it would be impossible or difficult to determine that he was the person responsible for the incidents," Judge Motto wrote.  "The offense was necessarily premeditated."

The juvenile system has rehabilitated other youth offenders and has the resources to work for someone like Jordan, whose brain is still developing, said Robert Schwartz, executive director of the Philadelphia-based Juvenile Law Center.  If found guilty, he said, Jordan should be held accountable in a "developmentally appropriate way." 

"We know children don't premeditate the same way adults do," he said.  "They are incapable of that planning and sophistication.  Kids of that age are not just small adults.  They develop in very rapid ways."

The full text of the Judge Dominick Motto's 18-page ruling is available at this link.

April 1, 2010 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (32) | TrackBack

Wednesday, March 31, 2010

Padilla prevails in his ineffectiveness claim concerning plea advice

Though the Supreme Court has not yet handed down the big juve LWOP Eighth Amendment case I have been eagerly awaiting, this morning the Justices did resolve the Padilla v. Kentucky case.  Here is the initial SCOTUSblog account:

We have the second and final opinion: No. 08-651, Padilla v. Kentucky; The lower court decision is reversed and remanded in an opinion by Justice Stevens; Justice Alito wrote an opinion concurring in the judgment, joined by the Chief Justice. Justice Scalia dissents, joined by Justice Thomas.

The holding: An alien charged with crime has a constitutional obligation to tell the client that a guilty plea carries a risk that he will be deported. The Court, however, does not decide whether the individual in this specific case has been prejudiced by the lawyer's failure to give that advice.

The opinion is available at this link.  I now need to run off to teach class, but I expect to have a chance to comment on this (very?) important decision later today.

March 31, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Tuesday, March 30, 2010

What would be the right kind of sentence for teen bullies now prosecuted for classmate's suicide?

The question in the title of this post is inspired by this notable story in today's New York Times, which is headlined "9 Teenagers Are Charged After Classmate’s Suicide." Here are some of the details:

It is not clear what some students at South Hadley High School expected to achieve by subjecting a freshman to the relentless taunting described by a prosecutor and classmates. Certainly not her suicide. And certainly not the multiple felony indictments announced on Monday against several students at the Massachusetts school.

The prosecutor brought charges Monday against nine teenagers, saying their taunting and physical threats were beyond the pale and led the freshman, Phoebe Prince, to hang herself from a stairwell in January. The charges were an unusually sharp legal response to the problem of adolescent bullying, which is increasingly conducted in cyberspace as well as in the schoolyard and has drawn growing concern from parents, educators and lawmakers.

In the uproar around the suicides of Ms. Prince, 15, and an 11-year-old boy subjected to harassment in nearby Springfield last year, the Massachusetts legislature stepped up work on an anti-bullying law that is now near passage. The law would require school staff members to report suspected incidents and principals to investigate them. It would also demand that schools teach about the dangers of bullying. Forty-one other states have anti-bullying laws of varying strength.

In the Prince case, two boys and four girls, ages 16 to 18, face a different mix of felony charges that include statutory rape, violation of civil rights with bodily injury, harassment, stalking and disturbing a school assembly. Three younger girls have been charged in juvenile court, Elizabeth D. Scheibel, the Northwestern district attorney, said at a news conference in Northampton, Mass.

Appearing with state and local police officials on Monday, Ms. Scheibel said that Ms. Prince’s suicide came after nearly three months of severe taunting and physical threats by a cluster of fellow students. “The investigation revealed relentless activities directed toward Phoebe to make it impossible for her to stay at school,” Ms. Scheibel said. The conduct of those charged, she said, “far exceeded the limits of normal teenage relationship-related quarrels.”...

On Jan. 14, the investigation found, students abused her in the school library, the lunchroom and the hallways and threw a canned drink at her as she walked home. Her sister found her hanging from a stairwell at home, still in her school clothes, at 4:30 p.m.

Some of the students plotted against Ms. Prince on the Internet, using social networking sites, but the main abuse was at school, the prosecutor said. “The actions of these students were primarily conducted on school grounds during school hours and while school was in session,” Ms. Scheibel said.

Ms. Scheibel declined to provide details about the charges of statutory rape against two boys, but experts said those charges could mean that the boys had sex with Ms. Prince when she was under age.

Legal experts said they were not aware of other cases in which students faced serious criminal charges for harassing a fellow student, but added that the circumstances in this case appeared to be extreme and that juvenile charges were usually kept private....

A South Hadley parent, Mitch Brouillard, who said his daughter Rebecca had been bullied by one of the girls charged in Ms. Prince’s death, said he was pleased that charges were brought. One of the students was charged separately in a case involving his daughter. “My daughter was bullied for three years, and we continually went to the administration and we really got no satisfaction,” Mr. Brouillard said, adding, “I was offered an apology a few weeks ago that they should have handled it differently.”

Harvey Silverglate, a lawyer in Cambridge, Mass., who has argued that proposed cyberbullying laws are too vague and a threat to free speech, said that he thought the charges announced Monday would pass legal muster. The sorts of acts of harassment and stalking claimed in the charges were wrong under state law, Mr. Silverglate said, but a question would be whether they were serious enough to constitute criminal violations, as opposed to civil ones. “There is a higher threshold of proof of outrageous conduct needed to reach the level of a criminal cause of action, in comparison to the lower level of outrageousness needed to prove a civil violation,” he said.

March 30, 2010 in Offender Characteristics, Offense Characteristics | Permalink | Comments (17) | TrackBack

Friday, March 26, 2010

"Punishment as Suffering"

The title of this post is the title of this notable new articleon SSRN from David Gray. The piece jumps into a very important and interesting on-going discussion and debate about subjective experiences of punishment, and all punishment theorists will want to check out the full piece. Here is the abstract:

In a series of recent high-profile articles, a group of contemporary scholars argue that the criminal law is a grand machine for the administration of suffering. The machine requires calibration, of course. The main standard we use for ours is objective proportionality. We generally punish more serious crimes more severely and aim to inflict the same punishment on similarly situated offenders who commit similar crimes. In the views of these authors, this focus on objective proportionality makes ours a rather crude machine. In particular, it ignores the fact that 1) different offenders may suffer to a different degree when subjected to the same punishment; 2) different offenders may have different happiness baselines, which may lead to disparities in absolute, subjective, and comparative happiness-to-suffering ratios among offenders subject to the same punishment; and 3) offenders’ self-reported states of happiness and suffering vary over the course of a sentence, revealing inaccuracies in our objective assessments of severity.

These scholars contend that a more sophisticated and rational approach would be to calibrate punishment according to the amount of suffering produced, trading objective proportionality for proportionality in subjective suffering. Looking forward to a day when advances in neuroscience and psychology will provide us with reliable qualitative and quantitative metrics of suffering, these defenders of punishment-as-suffering (“PAS”) are setting the stage now, arguing that no matter our theory of criminal law and punishment — be we retributivists or utilitarians — we are obliged to dial the machine according to who is in its thrall and to titer both the form and extent of punishment so as to achieve just the right kind and amount of suffering.

This view of the criminal law may strike some readers as troubling. It should. The problem with PAS can be traced to a crucial equivocation between “punishment,” which is a fundamentally normative concept, and “suffering,” which is one of punishment’s contingent effects, and a derivative failure to distinguish between the justification of punishment and the mechanics of penal practice. Once the elided distinction between punishment and suffering is reconstituted, it is clear that PAS has no bite on traditional theories of punishment, which define punishment objectively. To the contrary, most punishment theorists ought to reject outright the claim that punishment should be calibrated according to the subjective suffering it inflicts. That conclusion is bolstered by the uncomfortable outcomes PAS scholars deploy against objective theories of punishment as purported ad absurdum. While admittedly absurd, those results derive not from premises indigenous to traditional theories but from PAS’s distinctive claim that punishment is suffering.

March 26, 2010 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack