Sunday, October 10, 2010

Notable report on how one Florida case is dealing with the "uncharted territory" after Graham

I just came across this interesting article from a local Florida paper, which is headlined "Supreme court ruling gives life-sentence prisoner hope: Man convicted of rape when he was 16 hopes to reduce prison time now that life sentences for minors who didn't kill is unconstitutional." Here are excerpts:

Jason Kalapp ... is to serve five life sentences without the possibility of parole for the rape and attempted murder of his 24-year-old female neighbor in 1997. Kalapp, who was 16 at the time, allegedly forced his way into the young woman's home, beat her with a metal bar and raped her twice in her bathroom.

But a recent U.S. Supreme Court ruling has given Kalapp a newfound hope that he will someday see the world outside of a Florida correctional facility.... In May, the U.S. Supreme Court ruled 6-3 in Graham v. Florida that it was unconstitutional to give life sentences to juveniles who haven't killed. The justices ruled juvenile offenders must be given "some meaningful opportunity" for release.

Senior Circuit Court Judge Maurice Giunta decided Tuesday that the proceedings should be pushed back six months, giving prosecutors and Kalapp's public defender, Norma Wendt, time to prepare for a case that State Attorney R.J. Larizza said is "uncharted territory."

"I'm not sure how it's going to play out yet," said Wendt, division chief of the St. Johns County Public Defender's Office. "It's important to be cautious in this unique case, and I understand why the judge was careful about rescheduling the resentencing."...

The six months' time will give the Florida Office of Executive Clemency and representatives in the Florida Legislature time to respond and give the court a better idea of how to proceed, Giunta said. "The decision or petition from the Office of Executive Clemency may allow the possibility of parole, but that doesn't mean he'll get it," Larizza said. "The Legislature may also help fashion some way on how to proceed."

Kalapp is one of 77 former juveniles in Florida and 129 in the nation who are up for resentencings under the new ruling. "The bulk of these cases are in our state," Wendt said. "We have a bad habit of giving out life sentences in Florida. "It's important that we're consistent with the rest of the state in this thing, and we don't have different rulings in different counties."...

"The person that did that terrible thing is not the person that I know," said Amy, who asked that her last name not be printed, Kalapp's fiancee of more than a year. "He's not that person anymore, and he deserves a life outside of prison."

Amy, who visits Kalapp at least once a week from her home in South Florida, said she feels the court systems are lost on what to do. The couple met when Amy began writing to Kalapp as a pen pal nearly two years ago. "I just cannot understand this sentence," she said. "I've seen murderers get less of sentence than what he's got."

October 10, 2010 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, October 07, 2010

"Mom taken for abortion at gunpoint"

The title of this post is the headline of this remarkable local article that reads like an evil criminal law (or constitutional law?) professor's exam hypo.  Here are the details:

A Near East Side man pointed a gun at a pregnant woman and forced her to go to a clinic yesterday morning after she refused to go through with a scheduled abortion there, Columbus police say.

Dominic L. Holt-Reid, 27, of 579 Kelton Ave., was arrested and charged with kidnapping and carrying a concealed weapon.

Police found him about 9:45 a.m. in a parking lot behind Founder's Women's Health Center, 1243 E. Broad St., said Sgt. Rich Weiner, a Columbus police spokesman. Holt-Reid and Yolanda M. Burgess, the woman he forced to the clinic, have a child together, Weiner said. But they do not appear to share a home address, he said. State birth records show that child is a 4-year-old boy.

Burgess was in a vehicle with Holt-Reid yesterday morning after dropping their child off at school, according to a police statement. Holt-Reid became angry after Burgess refused to go through with an abortion that had been scheduled for 9 a.m. at the clinic.

Holt-Reid pulled a handgun from the glove compartment, pointed it at her and forced her to drive to the health clinic, according to police. The woman passed a note to a clinic employee, who called police. Burgess wasn't harmed.

So, dear readers, do you think prosecutors should be considering a charge of attempted murder for Holt-Reid? Do you think the motive for his kidnapping should be the basis for a severe sentencing enhancement? Or is this sad case to be viewed as merely an example of a misguided man trying to exercise his own procreative choice rights?

October 7, 2010 in Offender Characteristics, Offense Characteristics | Permalink | Comments (4) | TrackBack

Tuesday, October 05, 2010

"Federal judge charged with buying drugs from stripper"

The title of this post is the headline of this Atlanta Journal-Constitution article reporting on a remarkable new federal criminal case.  Here are some of the stunning details:

A longtime federal judge was freed on a $50,000 bond Monday after his arrest on federal charges that he bought cocaine and other illegal drugs while involved in a sexual relationship with an exotic dancer for the past several months.

Senior U.S. District Judge Jack T. Camp Jr. was arrested late Friday night near Sandy Springs. Camp, 67, is accused of purchasing cocaine and marijuana, along with prescription painkillers that which he shared with an exotic dancer he met last spring at the Goldrush Showbar in Atlanta, according to an FBI agent’s affidavit for his arrest.

Camp met the dancer, identified in the affidavit as CI-1, when he purchased a private dance from her, according to the affidavit by Special Agent Mary Jo Mangrum, a member of a task force investigating public corruption. He returned the next night and purchased another dance and sex from her, the affidavit said. The two then began a relationship which revolved around drug use and sex.

In some cases he bought drugs from the dancer, while in others the pair purchased them from other parties, according to the affidavit. Camp sometimes took loaded guns to the deals. Camp’s arrest came after a buy from an undercover agent, authorities said....

U.S. Attorney’s office spokesman Patrick Crosby referred questions to the Justice Department in Washington, saying the Atlanta office has been recused. Washington federal prosecutors Deborah Mayer and Tracee Plowell declined to comment after the brief bond hearing.

Camp, a Vietnam veteran appointed to the bench by President Reagan, presided over cases in U.S. District Court in Atlanta for more than 20 years and was the chief judge before retiring last year and taking senior status, which essentially is a former of semi-retirement in which he still handles cases.

Atlanta defense attorney Jack Martin said Camp was a well-read man who sometimes quoted Shakespeare from the bench. “It’s almost like a Shakespearean tragedy,” Martin said of Camp’s arrest....

As a judge, Camp had a reputation as a tough sentencer. In 2009, he sentenced former doctor Phil Astin to 10 years in prison. Astin had prescribed drugs to Chris Benoit, the professional wrestler who killed his wife, son and then himself in 2007. Camp said that the good works performed by the doctor were outweighed by his indiscriminate prescribing of drugs that caused at least two other people to die from overdoses.

Last year, Camp rejected a plea deal of an indicted pharmaceutical executive, saying the proposed 37-month prison sentence did not “accurately reflects the seriousness of the conduct.” Jared Wheat had earlier pleaded guilty to charges in connection with illegal importation of knockoff prescription drugs from Central America. Wheat later was given a 50-month sentence.

Camp’s relationship with the stripper, who had a federal conviction related to a drug trafficking case, began last spring, according to the affidavit. The two would meet when Camp paid her for sex, and they would smoke marijuana and snort cocaine and take the painkiller Roxicodone together. Camp usually gave the stripper money to buy the drugs although sometimes she provided them on her own, the affidavit said. She secretly recorded Camp discussing the drug transactions.

October 5, 2010 in Offender Characteristics, Offense Characteristics | Permalink | Comments (21) | TrackBack

Sunday, October 03, 2010

"Bullying, Suicide, Punishment"

The title of this post is the headline of this interesting and very effective piece in today's New York Times discussing the sad cybercrime case that emerged from Rutgers University this week.  Here are snippets:

Tyler Clementi may have died from exposure in cyberspace.  His roommate and another student, according to police, viewed Mr. Clementi’s intimate encounter with another man on a Webcam and streamed it onto the Internet.  Mr. Clementi, an 18-year-old violinist in his freshman year at Rutgers University, jumped off of the George Washington Bridge, and now the two face serious criminal charges, including invasion of privacy.

The prosecutor in the case has also said that he will investigate bringing bias charges, based on Mr. Clementi’s sexual orientation, which could raise the punishment to 10 years in prison from 5.

But the case has stirred passionate anger, and many have called for tougher charges, like manslaughter — just as outrage led to similar calls against the six students accused of bullying Phoebe Prince, a student in South Hadley, Mass., who also committed suicide earlier this year.

What should the punishment be for acts like cyberbullying and online humiliation?  That question is as difficult to answer as how to integrate our values with all the things in our lives made of bits, balancing a right to privacy with the urge to text, tweet, stream and post.

And the outcry over proper punishment is also part of the continuing debate about how to handle personal responsibility and freedom.  Just how culpable is an online bully in someone’s decision to end a life?...

In the Rutgers case, New Jersey prosecutors initially charged the two students, Dharum Ravi and Molly W. Wei, with two counts each of invasion of privacy for using the camera on Sept. 19. Mr. Ravi faces two additional counts for a second, unsuccessful attempt to view and transmit another image of Mr. Clementi two days later.

If Mr. Ravi’s actions constituted a bias crime, that could raise the charges from third-degree invasion of privacy to second degree, and double the possible punishment to 10 years. Still, for all the talk of cyberbullying, the state statute regarding that particular crime seems ill suited to Mr. Clementi’s suicide.

Like most states with a cyberbullying statute, New Jersey’s focuses on primary and high school education, found in the part of the legal code devoted to education, not criminal acts.  The privacy law in this case is used more often in high-tech peeping Tom cases involving hidden cameras in dressing rooms and bathrooms.  State Senator Barbara Buono sponsored both pieces of legislation, and said the law had to adapt to new technologies. “No law is perfect,” she said.  “No law can deter every and any instance of this kind of behavior.  We’re going to try to do a better job.”

Still, the punishment must fit the crime, not the sense of outrage over it.  While some have called for manslaughter charges in the Rutgers case, those are difficult to make stick.  Reaching a guilty verdict would require that the suicide be viewed by a jury as foreseeable — a high hurdle in an age when most children report some degree of bullying.

Besides, finding the toughest possible charges isn’t the way the law is supposed to work, said Orin S. Kerr, a law professor at George Washington University who specializes in cybercrime. “There’s an understandable wish by prosecutors to respond to the moral outrage of society,” he said, “but the important thing is for the prosecution to follow the law.”

The fact that a case of bullying ends in suicide should not bend the judgment of prosecutors, he said. Society should be concerned, he said, when it appears that the government is “prosecuting people not for what they did, but for what the victim did in response.”  Finding the right level of prosecution, then, can be a challenge. On the one hand, he said, “it’s college — everybody is playing pranks on everybody else.” On the other, “invading somebody’s privacy can inflict such great distress that invasions of privacy should be punished, and punished significantly.”...

That is why Daniel J. Solove, author of “The Future of Reputation: Gossip, Rumor and Privacy on the Internet,” said society needed to work on education.  “We teach people a lot of the consequences” of things like unsafe driving, he said, “but not that what we do online could have serious consequences.”

That sounds good, of course, but adults still drive recklessly after all that time in driver’s ed.  And it is easy and cheap to say that “kids can be so cruel at that age,” but failures of judgment can be found almost anywhere you look.

After all, what are we to make of Andrew Shirvell, an assistant attorney general in Michigan who devoted his off hours to a blog denouncing the openly gay student body president at his alma mater, the University of Michigan? His posts include accusations that the student, Chris Armstrong, is a “radical homosexual activist” and a photo of Mr. Armstrong doctored with a rainbow flag and swastika. He told Anderson Cooper that he is “a Christian American exercising my First Amendment rights.” On Friday, the attorney general’s office announced that Mr. Shirvell was taking personal leave pending a disciplinary hearing.

And for anyone eager to add an extra bit of sentencing law spin to this case, I think the bias charges being considered in the Clementi case are based on the statute that was subject to constitutional attack in Apprendi (and thus now requires a jury ruling, rather than just a judge finding, to double the potential punishment.

October 3, 2010 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (19) | TrackBack

Wednesday, September 29, 2010

"The Role of Social Media in Sentencing Advocacy"

The title of this post is the headline of this new article from the New York Law Journal. Here is how it begins:

Embarrassing Facebook photos and regrettable MySpace statements are starting to become commonplace in pre-sentencing reports and disposition hearings. At the same time, defendants and their advocates are acknowledging the power of social media as a tool to generate mitigating evidence.

While there seems to be an unending supply of negative and inculpatory postings in social networking profiles, there is also the potential for uncovering a humanizing portrait for the defense to present at sentencing.

Day-in-the-life videos are a staple of tort practice to support damage claims and in criminal prosecutions to showcase a victim's life and character. The multimedia diaries and correspondence that comprise Facebook and MySpace profiles have similar potential for the defense. Since many of the accused entering the criminal justice system will be accompanied by social media, defense counsel might need to review their social space, along with medical and school records and other background information.

A preliminary audit of a client's online profile serves two purposes: (1) to identify evidence that might show up in a probation department pre-sentence report; and (2) to provide an instrument for marshalling positive information about the client. Still, social media is a two-headed coin and the first toss is usually tails.

September 29, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (1) | TrackBack

Thursday, September 23, 2010

Virginia carries out execution of Teresa Lewis

As detailed in this new Washington Post story, "Teresa Lewis, who plotted with a young lover to kill her husband and stepson for insurance money, became the first woman executed in Virginia in nearly 100 years Thursday night when she was killed by lethal injection." Here are more details of what makes this execution notable:

Lewis is the 12th woman to be executed in the United States since capital punishment was reinstated in 1976. The most recent was in Texas in 2005, when Frances Newton was killed by lethal injection for shooting her husband and two children.

Although the fight for Lewis's life did not draw nearly the attention of that surrounding Karla Faye Tucker, the pickax killer turned born-again Christian executed in 1998, more than 5,500 people signed an electronic petition asking McDonnell to spare her.

The Virginia Catholic Conference, the Virginia Conference of the United Methodist Church and the ARC of Virginia, which advocates for people with mental disabilities, were among the groups that urged that Lewis's sentence be commuted to life in prison....

Her supporters never said that Lewis was innocent or that she shouldn't be punished. But they said she did not deserve to die because she was borderline mentally retarded, with the intellectual ability of about a 13-year-old, and was manipulated by a smarter conspirator. It was wrong for her to be sentenced to death, they said, when the two men who fired the shots received life terms.

This related story in The National Law Journal is headlined "Attorney: Teresa Lewis a 'Poster Child' for Broken Death Penalty System."

September 23, 2010 in Death Penalty Reforms, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (37) | TrackBack

Wednesday, September 22, 2010

"Sexting or Self-Produced Child Pornography?"

The title of this post is part of the title of this new piece by Professor Mary Leary that is available via SSRN. The full title of the article is "Sexting or Self-Produced Child Pornography? The Dialogue Continues – Structured Prosecutorial Discretion within a Multidisciplinary Response," and here is part of the piece's abstract:

The issues of “sexting” and “self-produced child pornography” (SPCP) have captured the attention of the media, courts, and state legislatures.  A debate rages among advocates, policy makers, and reporters about how the law should address this activity.  More than sixteen states have considered special legislation to address the problem and litigation has ensued. Lost in the debate are many realities including the complexity of the problem.  This behavior implicates aspects of child development, child sexuality, child exploitation, teen dating violence, education, and parenting.  While any deliberation about children and how the law should protect children is positive, sensationalism and oversimplification of this complex phenomenon undermine rationale debate.

This article builds on the concept that the solution does not lie in the criminal law.  Rather, it seeks to refocus the debate by suggesting that part of the solution depends on the formation of a comprehensive “smart” response. To accomplish this, society and its institutions (educational, social service, religious, law enforcement, legal, and civic) must come together and form a considered strategy that encourages prevention and a smart response when prevention fails.  This article examines the role of prosecution, if any, in that “smart” response. This article argues against the use of blunt instruments that fail to recognize the complexity of SPCP.  These extremes include “zero tolerance” policies, which in most cases do far more harm than good; decriminalization, which prevents a prosecutor from ever abusing his or her discretion, but also precludes juvenile court intervention even where the conduct is particularly egregious or the youth is in particular need of such; or an ad hoc approach by prosecutors which risks inconsistency, unfairness, and bias.

This article proposes an alternative approach which balances the need for fairness with a need for flexibility: Structured Prosecutorial Discretion within a Multidisciplinary Approach.  It is grounded in the recognition this complex problem covers a broad array of behaviors: from naïvely producing inappropriate images, to coercion, to maliciously distributing images of others virally.  The proposed model calls for prosecutors, together with members of other disciplines, to accept a protocol whereby a variety of proposed factors are considered, in a systematic way, in evaluating cases.  Structured Prosecutorial Discretion is characterized by a rejection of mandatory prosecution, exposure to sex offender registration, or adult criminal court, at one extreme, and decriminalization at the other.  Structured Prosecutorial Discretion would allow juvenile court prosecution to remain as part of a multidisciplinary response for only the most egregious cases (such as vindictive distribution of the images, coercion of the victim, etc.) and only after the implementation of offender-based and offense-based protocols.

Some related "sexting" posts:

September 22, 2010 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Can/should a sentencing judge increase a drug sentence because a defendant is an illegal alien?

The question in the title of this post splits an Eighth Circuit panel today in US v. Loaiza-Sanchez, No. 09-2999 (8th Cir. Sept. 22, 2010) (available here).  Here is how the majority opinion starts:
Hector Loaiza-Sanchez and Jose Luis Juarez-Gonzalez pleaded guilty to conspiring to distribute and possessing with intent to distribute a substantial quantity of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.  After determining an advisory guidelines sentencing range of 168 to 210 months for each defendant, the district court concluded based upon the sentencing factors in 18 U.S.C. § 3553(a) that a sentence within that range was appropriate.  It then imposed a sentence above the bottom of the range because each defendant committed his offenses while in the country illegally.  Loaiza-Sanchez and Juarez-Gonzalez appeal their sentences of 188 and 200 months in prison, respectively, arguing primarily that “alienage” is an improper sentencing factor.  We affirm.
Here are portions of a dissent from Judge Bright:

In my view, increasing the sentence of a defendant because he is in the country illegally makes little sense when the defendant will be deported after serving his term of imprisonment. As I previously wrote in United States v. Chavez, 230 F.3d 1089, 1092 (8th Cir. 2000) (Bright, J., concurring), long sentences for illegal aliens punish not only the defendant but the American taxpayer. “It would be more sensible to give . . . a stiff, but shorter sentence and then to promptly deport him . . . as an example to other would-be drug dealers.” Id.

Current data on our nation’s prison population and its associated costs evidences this point. Nonviolent offenders constitute over 60% of the prison and jail population.  John Schmitt, Kris Warner & Sarika Gupta, The High Budgetary Cost of Incarceration, Ctr. for Econ. & Policy Research, 1 (June 2010),  Nonviolent drug offenders account for 25% of all offenders behind bars.  Id.  Our country currently spends over $75 billion per year on corrections. Id. at 2.  Reducing the number of nonviolent offenders in our prisons and jails by half would save our nation $16.9 billion per year. Id.  It would save the federal government $2.1 billion per year.  Id. at 11 . In this case, there is no record of violent conduct and no need to heavily punish the defendants or to burden the American taxpayer.

The record here contains no evidence that these defendants came to the United States for the purpose of dealing drugs.  And it simply seems unfair to punish these defendants differently than a United States citizen who commits the same crime.

September 22, 2010 in Drug Offense Sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (11) | TrackBack

Fascinating split Fourth Circuit ruling on forced medication to make white-collar offender competent for trial

The Fourth Circuit has a fascinating discussion of both forced medication issues and white-collar sentencing realities today in US v. White, No. 09-7933 (4th Cir. Sept. 22, 2010) (available here).  Here are excerpts from the start and end of the controlling opinion:

Kimberly White ("White"), who suffers from Delusional Disorder, Grandiose Type, was indicted in the Eastern District of North Carolina on six counts of conspiracy, credit card fraud and identity theft.  She filed an unopposed motion for determination of her mental competency to stand trial under 18 U.S.C. § 4241. The examining experts unanimously agreed, and it is undisputed, that White is not competent to stand trial.  When White rebuffed all efforts to treat her disorder, on the government’s motion, the district court held an evidentiary hearing pursuant to Sell v. United States, 539 U.S. 166 (2003), to determine whether the government would be permitted to forcibly medicate White for the purpose of rendering her competent to stand trial. Over White’s objection, the district court granted the government’s motion.  White filed this timely interlocutory appeal, as permitted by Sell....

[W]e are satisfied that the circumstances presented in this case are not sufficiently exceptional to warrant forcible medication. See Sell, 539 U.S. at 180.  White is a non-violent detainee who has served more than the entirety of her likely sentence in pre-trial detention, and in onerous conditions at that. The alleged victims of her crimes, which were solely property crimes, would not likely benefit or be made whole in any way by her prosecution.  She is neither a danger to herself nor to the public, nor will she ever be able to purchase a gun.  She has a rare form of delusional disorder, and there is a dearth of data regarding whether antipsychotic medications, which rarely work on individuals with delusional disorder, would work on a patient like her.

If we authorize the government to forcibly medicate White, an all-too-common, non-violent, long-detained defendant, in a case in which several factors strongly militate against forced medication, it would risk making "routine" the kind of drastic resort to forced medication for restoring competency that the Supreme Court gave no hint of approving in Sell....

Judge Davis wrote this majority opinion, in which Judge Keenan joined. But Judge Keenan wrote a separate concurring opinion, and Judge Niemeyer wrote a dissenting opinion that includes this interesting passage:

[T]he majority relies ... heavily on its assertion that White’s crimes were nonviolent, and therefore the public’s safety is not at risk if she is not prosecuted.  As the majority explains, "Not every serious crime is equally serious.  The nature of White’s crimes lessens the government’s interest in prosecuting her because her alleged crimes were nonviolent offenses." Ante at 29.  The majority’s statement inappropriately assumes, without legal support, that crimes against the person are more serious than crimes against property for applying the Sell factors.  A given crime against property, however, can be serious or even more serious than a given crime against the person.  Enormous harm and distress can be caused by fraud and Ponzi schemes, as can be witnessed on a grand scale in the case of Bernard Madoff in New York.  More importantly, Sell itself refused to recognize such a distinction. See Sell, 539 U.S. at 180.  Moreover, the seriousness of a crime for determining the government’s interest is determined not by judges’ intuitive evaluations but by the maximum sentence established by Congress for the crime.

September 22, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

Tuesday, September 21, 2010

"Risk as a Proxy for Race"

The title of this post is the title of this notable new paper by Professor Bernard Harcourt available via SSRN. Here is the abstract:

Today, an increasing chorus argues that risk-assessment instruments are a politically feasible way to resolve our problem of mass incarceration and reduce prison populations. In this essay, I argue against this progressive argument for prediction: using risk-assessment tools to decrease prison populations would unquestionably aggravate the already intolerable racial imbalance in our prison populations and will not address the real source of mass incarceration, namely the admissions process.

Risk has collapsed into prior criminal history, and prior criminal history has become a proxy for race.  This means that using risk-assessment tools, even for progressive ends, is going to significantly aggravate the already unacceptable racial disparities in our criminal justice system.  Instead of turning to prediction, we need to address prison admissions . Recent evidence suggests that our carceral excess was not so much fueled by the length of sentences, as it was by the front end: new admissions.  The real solution to mass incarceration, then, is not to cut short prison terms though prediction, but to reduce admissions to prison.

September 21, 2010 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (26) | TrackBack

Monday, September 20, 2010

Notable dissent from Ninth Circuit denial of en banc review of probation sentence for "big-time thief"

As detailed in this post from back in February, a split Ninth Circuit panel in US v. Edwards, No. 08-30055 (9th Cir. Feb. 16, 2010) (available here), upheld as substantively reasonable a probation sentence given to convicted fraudster Duncan Edwards, whom the dissenting judge described as a "big time thief.”   Today, as detailed in this order, the Ninth Circuit has denied en banc review in Edwards, and that decision prompted a notable dissent by Judge Gould (which was joined by three other judges).  That dissent gets started this way:

In his cogent dissent from the majority decision of our three-judge panel, Judge Bea persuasively catalogs the laundry list of analytical errors committed by the district court at sentencing.  See United States v. Edwards, 595 F.3d 1004, 1018-25 (9th Cir. 2010) (Bea, J., dissenting).  I will not restate all of those errors here. Instead, I write to emphasize a larger and recurrent problem: our court’s practice of uncritically affirming unreasonably lenient sentences for white-collar criminals renders the Sentencing Guidelines a nullity, makes us an outlier among the circuit courts, and impairs our ability effectively to review sentences for substantive reasonableness.  Our “rubber-stamp” approach to reasonableness review permits district courts to abuse their sentencing discretion by paying lip service to appropriate sentencing considerations while paying inadequate heed to the substance of those considerations.  Hence we can end up with people like Edwards who engage in fraud and other criminal activities intended to cause extremely large monetary damages, yet who spend token and inadequate time, or even not one day, in jail.

Although we owe deference in the area of sentencing to a district court’s “superior position to find the relevant facts and judge their import,” Edwards, 595 F.3d at 1016 (internal quotation marks omitted), in the area of white-collar crime we should be circumspect to draw careful boundaries around that deference.  Because of the nature of their crimes, white-collar offenders are uniquely positioned to elicit empathy from a sentencing court. See United States v. Ruff, 535 F.3d 999, 1007 (9th Cir. 2008) (Gould, J., dissenting) (“[D]istrict courts sentencing white collar criminals can more often identify with the criminal . . . . But, socioeconomic comfort with a criminal convict is not a sufficient reason to show such extreme leniency . . . .”); Kenneth Mann et al., Sentencing the White- Collar Offender, 17 Am. Crim. L. Rev. 479, 500 (1980) (concluding from a survey of federal judges that they evinced particular “understanding” and “sympathy” “for the person whose position in society may be very much like their own,” and that “factors intimately related to the defendant’s social status do receive weight in the judges’ thinking” about sentencing).  And while judges take seriously violent crime and are forced by congressional mandatory minimums to take seriously drug crimes, there is latent risk in the case of white-collar sentencing that an “it’s only money” rationale will result in undue leniency for serious offenses.  I have no doubt that Edwards made a persuasive presentation to the district court that he was an unhealthy, aging retiree repentant of past frauds.  Such cases are precisely when we should most rigorously review a sentence’s reasonableness to ensure that the justifications relied on at sentencing are supported by objective evidence in the record. See Michael M. O’Hear, Appellate Review of Sentences: Reconsidering Deference, 51 Wm. & Mary L. Rev. 2123, 2141-49 (2010) (criticizing appellate deference to trial judge assessment of demeanor evidence at sentencing on the basis of the “emerging consensus in the legal and social science literature that people generally do a poor job in evaluating demeanor evidence,” and concluding that a defendant’s demeanor “seems about as likely to lead the trial judge astray as to facilitate good decision making”).  We know that often criminal defendants who commit other types of crimes will serve some hard time.  White-collar offenders like Edwards should not escape the same punishment simply because they are better-positioned to make a sympathetic presentation to the district judge.

I have bolded two phrases in this dissent because these lines appear to make a case for the Ninth Circuit to embrace and apply a more rigorous form of reasonableness review especially in white-collar cases.  Obviously, Judge Gould's advocacy here did not convince a majority of Ninth Circuit judges, and I am curious to hear whether readers like the idea of special approaches to reasonableness review in special kinds of sentencing cases.

September 20, 2010 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, September 16, 2010

What will USSC do given that DOJ and the Judicial Conference oppose retroactivity for new criminal history rules

As detailed here, the US Sentencing Commission has a public meeting scheduled today at which it will possibly vote whether to give retroactive effect to its new amendment to reduce the impact of "recency" as a factor in the calculation of the criminal history score.  This recent analysis from the USSC shows that over 7,500 federal inmates might get, on average, more than a year off their prison sentence if this amendment is made retroactive.

Yesterday, the Sentencing Commission posted here the materials it received in response to its request for public comment on this issue.  Intriguingly, as detailed in letters available here and here, the Justice Department "strongly opposes retroactive application of the amendment" and the Criminal Law Committee of the Judicial Conference has unanimously recommended against retroactivity.  The themes of these letters highlight the administrative burdens that will be placed on courts and other players in the system from having to process all the sentence modification requests that would result from making the amendment retroactive.  (Not surprisingly, defender groups support retroactivity and suggest the burdens will not been too great.)

Among other interesting aspects of this debate, these retroactivity issues present the classic theories of punishment in sharp relief.  A true retributivist likely would say that if future offenders do not deserve to have their punishment enhanced by the guideline provision that the Commission has amended, then past offenders ought not justly be required to sit in prison longer than they deserve and thus the new form of guideline justice ought to apply retroactively.  But a utilitarian likely would share the view of prosecutors and judges that achieving a bit more justice for (thousands of) past offenders is not worth the considerable  administrative burdens that retroactive justice would demand.

Any predictions on how the US Sentencing Commission will resolve this issue?  I suspect the views of prosecutors and judges will end up carrying the day, though perhaps the USSC will find a way to engineer a retroactivity rule that can achieve maximum justice at minimal costs.

UPDATE:  According to the folks at FAMM, my prediction that the the views of prosecutors and judges would carry the day concerning retroactivity appears to have been accurate: the US Sentencing Commission on Thursday voted against making its new recency amendment retroactive.

September 16, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"Implementing (or Nullifying) Atkins?: The Impact of State Procedural Choices on Outcome in Capital Cases Where Intellectual Disability is at Issue"

The title of this post is the title of this notable new article available via SSRN authored by John Blume, Sheri Lynn Johnson and Christopher Seeds. Here is the abstract:

This empirical study assesses the impact of state procedural choices on the implementation of Atkins v. Virginia, which prohibits the execution of prisoners with intellectual disability (“mental retardation”).  Since Atkins, much scholarly attention, including our own, has focused on the manner in which states have applied substantive definitions of intellectual disability that deviate from the clinical norm.  But as the present study shows, matters of procedure -- such as whether a judge or jury determines intellectual disability, whether the determination occurs prior to trial or in conjunction with a capital sentencing trail, and the applicable burden of proof -- may also make a difference on outcome. The study draws from available data on all known post-Atkins determinations of intellectual disability (n = 244).

The study finds that cases in which a jury makes the intellectual disability determination are relatively infrequent (28 jury verdicts versus 216 judicial determinations).  More striking, jury findings of intellectual disability are exceedingly rare -- in fact, nationwide, there have been only three.  We assess these statistics -- and others -- in context with: previous empirical analyses of the substantive deviations, long-standing concerns about the ability of jurors (especially death-qualified jurors) to assess mental health in criminal cases, and the risks of unreliable capital sentencing that Atkins sought to avoid.

September 16, 2010 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

"Partial Settlement Reached in Pa. 'Sexting' Case"

The title of this post is the headline of this new piece in The Legal Intelligencer, which provides an update on the highest-profile "sexting" case to date. Here is how the piece begins:

One of the high school students at the center of the "sexting" controversy in Wyoming County has agreed to a partial settlement of a civil rights suit that said her constitutional rights were violated when a principal confiscated her cell phone, found nude images she had taken of herself and turned it over to prosecutors.

Under the terms of the settlement, the Tunkhannock Area School District in Northeastern Pennsylvania agreed to pay $33,000, but admitted to no wrongdoing.  However, the plaintiff, who is identified in court papers only as N.N., has not settled her claims against the Wyoming County District Attorney's Office.

As a result, the case will continue and still has the potential to break new legal ground, possibly setting a precedent on the issue of whether students have a right of privacy that extends to the contents of their cell phones.

Some related "sexting" posts:

September 16, 2010 in Offender Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, September 09, 2010

"At 90, what does 17 years in prison mean?"

The question in the title of this post is the headline of this article from The Buffalo News about a (stiff?) sentence given to an elderly murderer.   The piece also discusses the prison realities for very old criminals, and here are excerpts:

A feeble-looking John H. Bunz had to be held up by two court officers after the 90-year-old stumbled getting from his wheelchair into his seat at the defense table Wednesday in a downtown courtroom.

It's hard to comprehend, but this is the same man who bludgeoned his 89-year-old wife to death with a hammer in a bloody attack during March in their Amherst apartment. Bunz showed little emotion as he apologized for his crime shortly before receiving what some deemed a "death sentence" -- 17 1/2 years in prison -- in State Supreme Court....

Bunz pleaded guilty in July to first-degree manslaughter in the killing of Virginia H. Bunz, his wife of nearly 68 years, in the couple's apartment in the Amberleigh Retirement Community.  In interviews Wednesday, authorities offered new details about the attack, which occurred early on March 21. 

Sometime after getting up that morning, Virginia and John Bunz got into a quarrel over "her health care issues," said Amherst Police Detective Lt. Richard S. Walter....  John Bunz hit his wife about 30 times with the hammer, police and prosecutors said, first in the hands as she tried to defend herself and then repeatedly in the head. "It was an extremely violent crime scene," Walter said.

Virginia Bunz died from blunt-force trauma from the beating, but John Bunz still grabbed a pillow afterward and held it over her face "to make sure the job was done," Walter said.  He then grabbed a kitchen knife and cut himself above his eyes, on his neck and on his wrists in an apparent suicide attempt.

Their daughter found the couple at about 10 a.m. Bunz admitted his role in the slaying to Detective Sgt. John J. Piracci and Detective James D. Jackson at Erie County Medical Center, where he was taken for treatment. "I would say he was remorseful but matter-of-fact," Walter said....

The district attorney said that he recognizes that this is likely a "death sentence" for Bunz but that he deserved lengthy incarceration because of the savageness of the crime.  "This was not a mercy killing.  This was not a gentle killing.  This was not, as far as we know, part of any [murder-suicide] pact," Sedita said.  "This was an extraordinarily violent act."

What happens to a 90-year-old who is sentenced to prison?  Based solely on his crime and the length of his sentence, Bunz would be classified as a maximum-security inmate, said Linda M. Foglia, a spokeswoman for the state Department of Correctional Services. And elderly inmates aren't unilaterally segregated from the general prison population....

If it is apparent that Bunz has special needs, such as a wheelchair, she said, the state has several prison facilities that can accommodate him.  And the state takes into account a prisoner's physical abilities when assigning housing and work responsibilities, she said. "We'll pay attention to the environment that a 90-year-old needs," Foglia said.

When Bunz begins his sentence, he will be the second-oldest inmate in a New York State prison, after Theodore A. Sypnier, according to department records. Sypnier, a 101-year-old convicted pedophile from this area, was sent back to prison on a parole violation and is serving two years at Groveland Correctional Facility in Livingston County.

A Niagara Falls man, Otes G. Rodriguez, is third on the current list at 86 years old. He was sentenced to 25 years in prison for pouring gasoline on a woman and trying to light her on fire by using a flare gun.  Rodriguez was 80 at the time of the 2004 attack and previously served prison sentences for the 1959 murder of his wife and the 1973 murder of his girlfriend.

September 9, 2010 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack

Wednesday, September 08, 2010

The story of prisons becoming nursing homes in Virginia

This new piece in the Washington Post, headlined "Virginia's prison system struggles to handle the surge in elderly inmate," provides a look into some of the consequences of an aging prison population in Virgina. Here are excerpts:

Since the General Assembly abolished parole for the newly convicted in 1995, the number of elderly inmates in custody has soared. In 1990, there were 900 inmates over the age of 50. Now there are more than 5,000. Deerfield Correctional, which once housed 400 inmates, has become a 1,000-bed facility with a long waiting list. "We're left trying to be both a nursing home and a prison," said Keith Davis, the warden.

Scrambling to handle the surge, the state has built a 57-bed assisted living facility at Deerfield, with rows of hospital beds filling a room the size of a high school gymnasium. They've added a special meal for the facility's legion of diabetics, and they've hired nurses to keep round-the-clock watch on the infirmary's 16 inmates.

It's an expensive endeavor: It costs $28,800 annually to house an inmate at Deerfield, compared with the $19,000 it costs at most of the state's medium-security prisons....

Under the 1995 Truth in Sentencing law, two types of inmates can still be paroled: prisoners over 60 and those convicted before the law took effect. That makes Francis eligible for parole. But since George Allen (R) was elected governor in 1993 with a promise to abolish parole, offenders have spent significantly more time behind bars. Fewer than 5 percent of inmates charged before 1995 have won reprieves since Allen's initiative passed, compared with 42 percent of eligible inmates who were granted parole in the years preceding the change in law.

Those over 60 face even slimmer odds. Only 15 of 1,000 eligible elderly inmates have won release. That record has led to a class-action lawsuit against the state. "The law says these inmates are eligible for parole, but the Parole Board is acting as if they're not," said Bill Richardson, an Arlington attorney representing 11 inmates.

State officials say the low parole rate reflects the fact that most nonviolent criminals have been released over the past 14 years, leaving mainly harder-core criminals behind bars. "These inmates might be old, and they might no longer pose a threat, but this is the price of committing a heinous crime," said Rick Kern, director of the Virginia Sentencing Commission, which oversees state sentencing guidelines.

The trend in Virginia foreshadowed a national trend. Between 1999 and 2007, the number of inmates 55 or older in state and federal prisons grew 76.9 percent, from 43,300 to 76,600, according to the U.S. Bureau of Justice Statistics.

Some related posts:

September 8, 2010 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Friday, September 03, 2010

State judge responds to mom's request for leniency after fratricide

As revealed by this local sentencing article, which is headlined "Mother persuades judge to go easy on son in fatal shooting," a mother's enduring love can sometimes help at sentencing. Here are the details:

Nine months ago, Ruth Nichols lost one son to gunfire and the other to a jail cell while he awaited trial in his younger brother's death. On Thursday, a judge went along with the woman's wishes and showed her surviving son leniency.

Frederick County Circuit Judge G. Edward Dwyer Jr. pointed to Ruth Nichols' request as the key reason he was persuaded to go below the state sentencing guidelines of three to eight years by ordering Allen L. Nichols, 45, to serve 18 months of a 10-year sentence for manslaughter.

Recommending no more than five years, Deputy State's Attorney David R. Callahan also acknowledged the family's fervent support for the defendant despite the Dec. 1 death of Terry J. Nichols, 43, in the family's Knoxville home.

"It's hard enough to lose one," Ruth Nichols said in the courtroom before the hearing. "I need him (Allen Nichols) home. He helps me with things I can't do."

Authorities said witnesses never wavered in their accounts of the argument that erupted between the brothers when Allen Nichols was awakened after Terry Nichols returned home from a night of drinking. "Ruth stated (that) Terry is very loud when he drinks," according to charging documents....

Family members heard Terry Nichols say, "Pull the trigger. I dare you," just before the fatal shot was fired, court documents state. A 911 dispatcher speaking to Ruth Nichols over the phone heard a man in the background saying, "I didn't know the damn thing was (expletive) loaded." Neither brother believed the gun was loaded, Ruth Nichols said.

Before sentence was imposed Thursday, defense attorney Alan L. Winik said Allen Nichols had agreed to waive credit for the nine months he has already spent at the Frederick County Adult Detention Center, meaning his total sentence will be closer to 27 months. "This is a rather unusual case," Winik said. "It is a tragedy linked to the deadly combination of gunpowder and alcohol that has led us to where we are today."

Dwyer authorized work release for Nichols, whose employer has stood behind him since his arrest, Winik said. Allen Nichols supports his mother and an invalid brother. The shooting has put the family in dire straits. Allowing Nichols to work and keeping his sentence limited to the local jail "will allow the preservation of this family who have all had to live with the fact that they have lost a loved one," Winik said.

September 3, 2010 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

Thursday, September 02, 2010

California state appeals court finds unconstitutional 84-year prison term for 16-year-old car-jacker

As detailed in this San Francisco Chronicle piece, which is headlined "Teen's 84-year sentence overturned by court," at least one California appeals court has extended the Supreme Court's ruling in Graham to a (long) term-of-years sentence. Here is the start of the press article:

After the Legislature killed a Bay Area lawmaker's bill to give juveniles serving life sentences a chance at future parole, a state appeals court took a step in the other direction Wednesday by overturning the 84-year prison term of a 16-year-old gang member convicted of robbery and carjacking.

The sentence is the practical equivalent of life without possible parole and violates the constitutional ban on cruel and unusual punishment, said the Second District Court of Appeal in Los Angeles. The court told the trial judge to resentence Victor Mendez to a term that would give him a chance to gain his freedom someday if he shows maturity and rehabilitation.

The ruling followed a U.S. Supreme Court decision in May that banned life-without-parole sentences for juveniles convicted of crimes other than homicide. That ruling applied to four youths in California prisons, but did not affect another 250 inmates serving the same sentence for murders committed at ages 16 or 17.

The discussion of Graham starts at page 15 of the full slip opinion in California v. Mendez, No. B217683 (Cal. 2d Dist. App. Sept 1, 2010) (available here).  Here is a snippet:

We disagree with Mendez that his de facto LWOP sentence should be reversed pursuant to the holding in Graham. As the People note, Graham expressly limited its holding to juveniles actually sentenced to LWOP.... Mendez‘s sentence is not technically an LWOP sentence, and therefore not controlled by Graham. We are nevertheless guided by the principles set forth in Graham in evaluating Mendez‘s claim that his sentence is cruel and unusual....

Even without Graham, we would conclude that Mendez‘s sentence is unconstitutional when evaluated under the traditional "proportionality" test used by the federal and state courts when evaluating individual claims that a sentence is cruel and unusual.  Although articulated slightly differently, both standards prohibit punishment that is "grossly disproportionate" to the crime or the individual culpability of the defendant....

In reaching our conclusion that Mendez‘s sentence is the equivalent of LWOP and that it is cruel and unusual punishment, we are mindful of the fact that successful challenges to sentences on the grounds of cruel and unusual punishment are rare.  Nevertheless, we find this to be such a rare case, and we therefore remand the matter to the trial court for reconsideration of Mendez‘s sentence.

September 2, 2010 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Friday, August 27, 2010

Animal abuser registry proposed by county lawmaker in New York

This local story reports on a novel proposal to expand the use of criminal registries to animal abusers.  The piece is headlined "Suffolk law would place animal abusers on registry: Public could access names, photos of those convicted," and starts this way:

A county lawmaker is looking to create a public registry of convicted animal abusers in a move that would make Suffolk County the first municipality in the nation to create such a list to shame abusers and prevent them from adopting animals....

If passed, the names, aliases, addresses and photographs of animal abusers would compiled in a searchable database, much like the state's sex offender registry.

The convicted abusers would pay a $50 annual fee for upkeep of the registry, and those who fail to register would be charged $1,000 or face jail time.  The bill would also require pet stores and animal shelters to check the registry before allowing anyone to purchase or adopt an animal, and would prohibit giving an animal to a convicted abuser.

August 27, 2010 in Criminal Sentences Alternatives, Offender Characteristics | Permalink | Comments (22) | TrackBack

Sunday, August 22, 2010

"Difference in sentencing of two juveniles highlights difficult issue"

The title of this post is the headline of this local story out of California.  Here is how it gets started:

A 14-year-old south Modesto boy who killed a young father at a child's birthday party will likely die in prison. Angel Cabanillas, now 19, stands to serve at least 100 years behind bars. But just 40 miles south in Merced, a boy who was 15 when he committed a fatal drive-by to impress his fellow gang members is set to be sentenced Monday to 31 years in prison. He could be out by the time he's 42.

The disparity in their sentences reflects a divide in how judges and prosecutors handle violent crimes committed by children. The topic of whether minors can be sentenced to die in prison has recently come under scrutiny by the U.S. Supreme Court and the California Legislature, and their discussions could change the rules for cases like Cabanillas.'

In May, the Supreme Court ruled juveniles cannot be sentenced to life in prison without parole for non-homicide crimes. Denying children who commit lesser crimes the opportunity to ever get out of prison constitutes cruel and unusual punishment and runs counter to a worldwide consensus against such harsh sentences for juveniles, the court wrote. But while the decision did not specifically address what can happen to children convicted of murder, legal experts say recent court rulings regarding juvenile justice have shown a trend toward leniency.

August 22, 2010 in Assessing Graham and its aftermath, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (7) | TrackBack