Thursday, August 19, 2010
"Can an 11-year-old be a sex offender?"
The question in the title of this post is the headline of this intriguing piece at Salon reporting on a recent case from England. Here is how the piece starts:
To tell it one way, on Wednesday, a British judge let the two accused sexual assailants of an 8-year-old girl go free. Or to put it another way, a pair of little boys have been put on trial for their innocent curiosity, and now carry the stigma of being registered sex offenders.
Roger Clemens to be indicted for perjury for false statement to CongressThis breaking story from the New York Times interests me as a baseball fan and as a criminal law and sentencing professor. It is headlined "Clemens to Be Indicted for Perjury in Doping Testimony," and gets started this way:
Federal authorities have decided to indict Roger Clemens on charges of making false statements to Congress about his use of performance-enhancing drugs, according to two people briefed on the matter. An announcement is expected shortly.
The indictment comes nearly two and half years after Clemens and his former trainer Brian McNamee testified under oath at a hearing before the House Committee on Oversight and Government Reform, directly contradicting each other about whether Clemens had used the banned substances.
Anyone want to predict (1) if Clemens will even consider a plea, and (2) what kind of sentence might be offered by the feds in an effort to get him to plea?
UPDATE: A copy of the 19-page, six-count indictment in United States v. William R. Clemens is available at this link.
MORE: In this new piece at FoxSports, legal analyst Robert Becker explains why he predicts "that Roger Clemens will spend more than a year of his life in a federal prison."
New US Sentencing Commission report on changes to criminal history computationThe US Sentencing Commission has this new reportup on its website that will likely not get much old or new media attention, but should be of great interest to hard-core federal sentencing nerds like me. First, here is how the USSC describes the report on its home-page:
Computation of Recency Criminal History Points under USSG §4A1.1(e): This document provides certain information considered by the Commission as part of its determination to amend the guidelines to eliminate the consideration of "recency" points provided in USSG §4A1.1(e). That amendment, amendment number 5, currently is pending before Congress as part of the package of amendments submitted to Congress on April 29, 2010. The amendment has a specified effective date of November 1, 2010.
Now here is part of the summary at the end of this report which spotlights why this is a big deal for those who are involved day-to-day with federal sentencing law and practice:
In fiscal year 2009, the applicability of the recency provision was considered in 38,850 cases, all of which necessarily involve defendants in Criminal History Category II or higher. The provision ultimately was applied in 14,548 of these cases (37.4% of 38,850). In two-thirds of the cases receiving recency points, the offender received two additional points for USSG §4A1.1(d) (status) (9,921 of 14,548, 68.2%). Of the 14,548 offenders receiving any recency points, these points had an impact on the offender’s calculated criminal history category in only 4,419 cases (30.4% of 14,548 recency applications).
This review also examined the utility of this subsection in predicting recidivism. While the Commission does not have recidivism data on non-citizens, with respect to United States citizens, Commission research demonstrates that including recency in the criminal history calculation has minimal predictive power. Based on the analysis of Commission recidivism data on United States citizens, the inclusion of recency points improves the prediction that a recidivist has a higher criminal history score (compared with a non-recidivist) in just ten of 3,018 comparisons for which the remaining subsections of USSG §4A1.1 alone did not correctly predict the higher.
The prison impact analysis revealed that if recency points were not available in fiscal year 2009, 4,189 of the 14,048 offenders receiving recency points would have moved to the next lower criminal history category, resulting in a reduction in their average sentence from 49 months to 41 months (a 16.3% average decrease). After five years, eliminating recency points is estimated to save 1,391 prison beds.
In other words, this report reveals that a seemingly minor "tweak" concerning the calculation of criminal history points under the sentencing guidelines could and would impact nearly as many federal sentencing cases as any of the the (much-higher-profile) recent changes to crack sentencing rules.
In turn, this report also suggests that if (and when?) this criminal history "tweak" officially becomes law this November, lots and lots of current federal prisoners should be very eager for the US Sentencing Commission to give this change retroactive application. If the USSC makes this change retroactive, it is possible that a sizable number of current federal prisoners would have an opportunity to request and receive reduced sentence.
California legislature considering bill to eliminate juve LWOP for any crimesThe Supreme Court in Graham declared unconstitutional the imposition of life-without-parole for juvenile offenders who commit nonhomicide offenses. Now, as detailed in this article, the California legislature is considering a bill to eliminate juve LWOP for any crime. The piece is headlined "Bill would let juvenile criminals seek leniency," and here are excerpts:
When Democratic state Sen. Leland Yee talks about SB399, he inevitably points to the case of Sara Kruzan. In 1994, at age 16, Kruzan killed her alleged pimp three years after she was forced into prostitution. The Riverside girl was convicted of first-degree murder and sentenced to spend the rest of her life in prison with no possibility of parole.
Under SB399, juvenile offenders such as Kruzan, now a 32-year-old prison inmate, would be allowed to ask a court to review their case after 10 years in prison, and could potentially get their sentence reduced to 25 years to life. The bill -- a watered-down version of Yee's original proposal, which would have barred life imprisonment for all juveniles -- has been approved by the state Senate and is set to be taken up by the Assembly as soon as Thursday....
Opponents, including the California District Attorneys Association and the Assembly Republican Caucus, flatly reject those contentions. They argue that the current system works and that only the "worst of the worst" are eligible for life without parole now.
Scott Thorpe, the association's CEO, noted that juveniles are considered for lifetime sentences if they are tried as adults. "We're talking about the most serious types of crimes, and we're also talking about defendants who, because of a number of factors, have been determined to deserve at least eligibility for that punishment. We're talking about first-degree murderers," he said.
Supporters, however, say juveniles are different from adults and should be treated as such. They are more likely to be influenced by other people and don't have the same ability to grasp foresight and consequences, said Yee, a child psychologist. And, he said, their brains are still developing, giving them a larger capacity for rehabilitation than adults. "We're letting prisoners out because of overcrowding -- ought we not at least look at children and see if they are deserving to be let out?" Yee asked.
Elizabeth Calvin of Human Rights Watch and other supporters also argued that juveniles tend to receive harsher sentences than adults for the same crimes, because they are less likely to agree to plea deals, don't always understand their rights or refuse to accept responsibility if they were present for, but did not actually commit, a murder.
The bill would only allow some people to apply for the reduced sentence. For example, a defendant who had previously been convicted of assault or other violent crimes might not be eligible. If a sentence was reduced, a defendant would have to go through the normal process -- a review before a parole board and the governor -- before they could be paroled. "This bill is so narrowly drawn -- it's modest in what it's attempting," said Calvin. "One of the things that makes it different from other early release schemes is that there would be very careful consideration of each case."
In California, approximately 250 people who were juveniles when they committed their crimes are serving lifetime prison sentences without the possibility of parole. Calvin said that nearly half of those defendants are not actually murderers but were convicted of murder because they were present and participating in some other illegal activity when someone was killed, and that most had no prior criminal convictions.
The District Attorneys Association disputed those numbers, saying they were based on interviews with inmates and other anecdotal evidence. The vast majority, Thorpe said, are murderers....
Sen. Sam Aanestad, R-Penn Valley (Nevada County) -- the only Republican to support the bill in the Senate -- said all of the arguments overlook one simple question: "Do we believe in rehabilitation or don't we?" he asked. "I think the younger you are, the more of a chance you have to reprogram.... For me, it's just a matter of fairness. If all we want to do is punish people, OK, let's put them away for good. But I don't believe that's what society really wants."
Notably, it appears that California's editorial pages are all supportive of this bill:
- From the Los Angeles Times here, "Legislature should pass Fair Sentencing for Youth Act"
- From the San Diego Union Tribune here, "Life without parole for children?"
- From the Ventura County Star here, "Second chance for young lifers"
Monday, August 16, 2010
"Aging inmates straining prison systems"The title of this post is the headline of this effective new AP article. Here is how the piece starts:
Curtis Ballard rides a motorized wheelchair around his prison ward, which happens to be the new assisted living unit — a place of many windows and no visible steel bars — at Washington's Coyote Ridge Corrections Center. A stroke left Ballard unable to walk. He's also had a heart attack and he underwent a procedure to remove skin cancer from his neck. At 77, he's been in prison since 1993 for murder. He has 14 years left on his sentence.
Ballard is among the national surge in elderly inmates whose medical expenses are straining cash-strapped states and have officials looking for solutions, including early release, some possibly to nursing homes. Ballard says he's fine where he is. "I'd be a burden on my kids," said the native Texan. "I'd rather be a burden to these people."
That burden is becoming greater as the American Civil Liberties Union estimates that elderly prisoners — the fastest growing segment of the prison population, largely because of tough sentencing laws — are three times more expensive to incarcerate than younger inmates. The ACLU estimates that it costs about $72,000 to house an elderly inmate for a year, compared to $24,000 for a younger prisoner.
The federal Bureau of Justice Statistics reported that the number of men and women in state and federal prisons age 55 and older grew 76 percent between 1999 and 2008, the latest year available, from 43,300 to 76,400. The growth of the entire prison population grew only 18 percent in that period.
Below-guideline (but still significant) prison sentence for scientist convicted of violating a trade embargo with Iran
This AP story headlined "Iran-embargo defendant gets 2 1/2 years in prison" and this BusinessWeek story headlined "Ex-McKinsey Consultant Gets 2 1/2 Years in Iran Case," both report on an interesting and unusual federal sentencing today in NYC. Here are the basics frm the BusinessWeek account:
Former McKinsey & Co. consultant Mahmoud Reza Banki was sentenced to 2 1/2 years in prison for violating the Iran trade embargo and running an unlicensed money-transfer business. Banki, a naturalized U.S. citizen born in Iran, was accused of running a “value-transfer” business that essentially moved money to residents of Iran from 2006 to 2009 in violation of the U.S. embargo.
Banki received about $4.7 million as part of the transfer process and used the money to buy a $2.4 million condominium, invest in securities and pay credit-card bills, the government charged.
“I deeply regret everything that has happened,” Banki told U.S. District Judge John Keenan before his sentencing. “I will learn from it and be a better man.”
Keenan said sentencing guidelines called for 63 to 78 months, which he said was too long. He called Banki “a highly educated young man” who was unlikely to return to criminal activity. Banki, 35, has a PhD from Princeton in chemical engineering.
A federal jury in New York convicted Banki in June of all five charges against him. Banki has been in custody since his arrest in January.
The AP report add these interesting details:
Mahmoud Reza Banki winced when his sentence was announced, and numerous spectators among his more than 50 supporters cried openly or wiped tears.
Banki, 35, had faced up to 25 years in prison after he was convicted in June, but even federal prosecutors conceded that the unusual aspects of the case meant that Banki deserved a reduction from the more than five years in prison that sentencing guidelines recommended....
Banki's attorney, Baruch Weiss, asked Keenan to let his client go free, saying the seven months he has spent in prison since his arrest were sufficient. Weiss said Banki wanted to return to his dream of finding ways to finance stem cell research so replacement organs such as kidneys could be produced without the need for donors....
In a presentence letter to the court, the government highlighted the threat to national security that it believes hawalas pose, saying "financial transactions with a country supporting international terrorism implicate national security by definition."
It said funds transferred to Iran are inevitably used to strengthen Iran's economy. "This — the strengthening of the economy of a country that supports international terrorism — is exactly what the embargo was designed to avoid," the government wrote. The government also accused Banki of using the money sent to him by his father to invest in a home and securities and "to finance a lavish lifestyle."
The judge has signed an order requiring Banki to forfeit the $3.4 million. Weiss said Banki will appeal his conviction and the forfeiture order.
Fascinating juve crime and modern parole story from GeorgiaThe front-page of CNN.com has this interesting story of crime and punishment from Georgia that implicates a lot of modern issues about sentencing law, policy and practice. The piece is headlined "Family uses killer's letters to keep him behind bars," and here is how it gets started:
Billy Ray White vowed 20 years ago that when he got out of prison, he would track down the relatives of the man he'd murdered and subject them to gruesome deaths. In a handwritten letter to J.D. Hall's daughter, the convicted killer promised to carve her up like a turkey and make her head into a flower pot. In another letter to Hall's son, he said he would put him through a meat grinder and force his relatives to eat him....
The letters were from "Charles Manson," but White has admitted to writing them. In a 1991 letter to the Georgia State Board of Pardons and Parole, he acknowledged that writing them was a "stupid thing" to do and asked for forgiveness. But the letters continue to haunt him, just as they do the recipients.
In late June, White was denied parole for the sixth time since he was sentenced in 1985 to two consecutive life sentences plus 10 years for Hall's murder, armed robbery and theft of a motor vehicle, a parole board spokesman said. Prosecutors and the Hall family received the news from the parole board last month after mounting an impassioned campaign to keep White behind bars, citing fears that he would make good on his threats....
But the debate is not over. His parole comes up again for reconsideration next April, in a scenario that plays out similarly every day across the country, pitting the interests of surviving victims against the rights of convicts to re-enter society if deemed ready.
White was sentenced to two life sentences before the era of life without parole. Had he been sentenced today, he would be a likely candidate for life without parole, said University of Georgia law professor Ronald Carlson.
"This is a classic case of how parole boards have to balance a commendable life after the crime versus the heinousness of the offense, but that's somewhat of a diminishing problem because we have now life without parole for this sort of crime," Carlson said. "In the interim, there's going to be some dramatic cases where prisoners who've done some pretty awful things are going to try to get parole."
The burden is on the prisoner to convince the board that he is not a future danger to society and that his efforts to rehabilitate himself outweigh the heinousness of his crime. "One of the things that's key to the decision-making process is, frankly, an educated guess," Carlson said. "The board is informed, but there's still no scientific judgment available about future dangerousness of an applicant."...
Unlike many convicts seeking parole, according to Carlson, White has someone in his corner. His sister Judy says he is a different person from the "troubled teen" who shot Hall at his home in Douglasville, Georgia.
The woman, who asked that her last name not be used out of fear of reprisal, said people might understand her brother better if they knew of the neglect and abuse he endured as the child of alcoholic parents. "They're reviewing him on those stupid letters -- which he completely regrets -- but he was a young teenager when all this happened. He's 39 now," his sister said in a phone interview from her Florida home. "He just wants a chance to prove to the world that he's changed."
White has spent most of his life in state custody. He was 13 when he shot Hall in the face on the morning of March 30, 1985.... White never denied shooting Hall, a well-known member of the community who ran a family-owned grocery store and a construction company.
Because of his age, White was not eligible for the death penalty. Georgia law at the time did not have life without parole, so he was sentenced to two consecutive life terms plus 10 years. The question of whether he would be released has always been a matter for the Georgia Parole Board.
White was four years into his sentence when he sent letters to Hall's widow and three children. "I might be 39 or 40 when I get out but I'll still be in prime shape," he said in the letter to Hall's widow, who, according to her family, has never read it....
Douglas County District Attorney David McDade, who prosecuted White in 1985, has led the fight to keep him in prison, citing the nature of his crime, his failure to show remorse and, not surprisingly, the letters.
Sunday, August 15, 2010
"Electronic bracelets to track gun-toting Memphis juveniles"
The title of this post is the notable headline of this notable local article from Tennessee. Here are the intriguing particulars of one of the the latest use of technocorrections (which is being funded by federal tax dollars):
Memphis police want to stop gun-toting teens in their tracks -- literally.
Police Director Larry Godwin is teaming with Memphis Mayor A C Wharton to develop a pilot program that monitors the steps of troubled teens through advanced electronic tracking bracelets. It's part of a $2 million, federally funded program to curtail crime using tracking equipment that can pinpoint a detainee's exact location.....
Godwin ... and the mayor are teaming to develop a proposed pilot program, "Cease-Fire for Juveniles." The initiative, modeled partly after a similar program in St. Louis, allows police and court officials to supervise the teen for one year through an electronic ankle bracelet....
Unlike some other tracking devices, the bracelets used in this program would keep a record of everywhere the detainee goes, transmitting the data in real time to a police department server, Memphis police Col. Jim Harvey said.
Using special software, police can build a virtual fence around a teen offender's home, with the computer monitoring if the teen is staying put during curfew. If the teen leaves his yard, a police computer will automatically generate an alert. With sex offenders, police can place a virtual fence around area schools and daycare centers. If the offender crosses onto forbidden turf, police will get an alert.
Harvey, who is overseeing the logistics of the monitoring, said this program has the potential to drastically reduce the city's crime rate. "If there's a burglar walking down the street and he sees a police officer, he's not going to break into that house or business," Harvey said. "Now, the way I look at it, he's going to be wearing a police officer on his leg."
In the program's first year, the department plans to track up to 1,000 juvenile and adult offenders in Shelby County and up to 500 in nearby urban areas tracked by federal programs -- Fayette, Tipton and Lauderdale counties and DeSoto County, Miss., and Crittenden County, Ark.
The juvenile program would be voluntary, so the teen and parents would have to agree to participate. If the minors stay out of trouble for one year, the initial gun-possession charge would be erased from their record.
Through the program, the parent would also have to allow random police searches of the teen's bedroom. If the teen is caught with drugs or another gun, he or she would get kicked out of the program and would face the consequences of violating probation, police said.
Veteran defense attorney James Sanders said the program sounds promising, but he would first want to ensure the parent wouldn't be blamed if the search yielded a weapon or drugs in the teen's room.... The program would also require the minor to complete 40 hours of community service and attend training, which includes straight talk from a former gang member.
Saturday, August 14, 2010
"Is Life Sentence Too Harsh For Man Convicted of Ninth DWI?"The question in the title of this post is the headline of this new ABC News report on a noteworthy state sentence handed down in Texas this past week. Regular readers will not be surprised to here that my personal answer to this question is a resounding NO, especially given that this is a life WITH parole eligibility in as little as five years. Here are the details:
The ninth conviction was the breaking point for one Texas judge who earlier this week sentenced a habitual drunken driver to life in prison.
Bobby Stovall, 54, was driving his truck in Round Rock, Texas, in early July when he weaved through several lanes of traffic and hit another vehicle, injuring the driver. It was later determined that Stovall had a blood alcohol concentration of .32, four times the legal limit in Texas.
And while that DWI was certainly enough to get Stovall in trouble with the law, when the judge found out the defendant had eight prior DWI convictions across several different counties in Texas, he ordered up a life sentence for Stovall.
"This is someone who very deliberately has refused to make changes and continued to get drunk and get in a car and before he kills someone we decided to put him away," said Williamson County District Attorney John Bradley.
Bradley said that in addition to the multiple DWI convictions , Stovall also had a extensive rap sheet for other crimes, including burglary, credit card abuse and supplying alcohol to a minor. "He basically walked through the penal code for the past twenty years without any regard for safety or society," said Bradley. "In every single one of his cases he had an opportunity to change."
But some argue that Stovall's sentence was too harsh and that the court should have considered his struggle with alcoholism. "This guy has a disease, he is an alcoholic and this isn't the kind of situation where he's acting with malice to hurt people," said Lawrence Taylor, a DUI lawyer and author of "Drunk Driving Defense."
"He has a serious problem and I hope the days are past where we think alcoholism is something you choose," said Taylor. Taylor said that he does not agree with the judge's sentencing of Stovall and would have preferred more "rehabilitation" than "ending his life." "You're essentially doing just that, ending this man's life, at the expense of taxpayers," he said.
But Bradley says that it's better to lock up a man like Stovall -- and prevent him from hurting someone in the future -- than give him yet another chance. "I think that the ninth time you get caught and punished for [drunken driving] you would have found some way of not getting in that car," said Bradley....
"If this guy was using a shotgun to shoot lights randomly around his neighborhood I doubt we'd be [getting criticized] for the sentencing," he said. "In this case he's simply using his truck as his weapon."
Stovall would be eligible for parole in five years, but depending on his conduct in prison and other factors, that could be as long as 10 to 15 years.
Even though I am prepared to accept the notion that alcoholism is a disease, I do not think this fact make this long sentencing misguided. Those who suffer from alcoholism may not have a choice as to drinking, but they surely have a choice concerning whether to get behind the wheel while drunk. And Bobby Stovall obviously has continued to choose to put himself in a situation in which he makes choices about driving that put many of his fellow citizens at great risk.
The fact that Stovall will be eligible for parole in five years makes the "life sentence" in this case seem especially reasonable. I assume he will get out early if and when he makes progess battling alcoholism, and it seems that he has had no luck wage this battle on his own outside of the prison setting.
Friday, August 13, 2010
Should Tourette syndrome justify a reduced sentence for child porn offenses?The question in the title of his post is prompted by this interesting local press report on a federal sentencing here. The piece is headlined "Defense cites Tourette syndrome in case of New Castle man," and here are some of the details:
A Lawrence County man became attracted to underage girls and collected child pornography because Tourette syndrome and an isolated upbringing limited his ability to interact with women his age, a forensic psychologist said Thursday during a sentencing hearing in Pittsburgh federal court.
Kelly Hardy, 40, of New Castle grew up in a "petri dish of dysfunction" and his parents ignored doctor's recommendations for counseling and treatment because "they don't talk to psychiatrists," said Jolie Brams, a Columbus, Ohio, psychologist. His parents discouraged Hardy and his two brothers from making friends, so Hardy grew up with a desire for relationships he couldn't form, she said. "He just had no idea how to have one," Brams said.
Hardy pleaded guilty Oct. 22 to possession, receipt and transportation of child pornography. Federal guidelines recommend that he receive a prison sentence of 30 years to life. Public defender Penn Hackney asked U.S. District Judge Nora Barry Fischer to ignore the guidelines.
Assistant U.S. Attorney Craig Haller argued that Hardy's mental problems should not entitle him to leniency. Both of Hardy's brothers exhibit symptoms similar to Hardy's but haven't become pedophiles, he said.
University of Pittsburgh law professor David Harris said that he never heard of using Tourette syndrome as a defense in a child pornography case but said mental issues frequently are raised when judges consider sentences....
Hardy amassed thousands of images and videos of child pornography, videotaped neighborhood children playing and stole girls' panties from homes he visited, according to court documents. In online chats with other child pornography collectors, Hardy said "he would most like to rape 8-year-old girls but would rape any girls from 2 to 15 years of age," court records show.
Brams said Tourette syndrome causes people to obsessively collect or "hoard" things. That helps explains the 60 hard drives and other digital media police found when they searched Hardy's home, she said. "He collected more pornography than anyone could ever look at," she said.
Haller said even if Hardy didn't watch the pornography, he traded it for other images and videos. Although Tourette might cause someone to collect compulsively, "it does not decide what you are interested in collecting," he said. If anything, the combination of Tourette syndrome and pedophilia makes Hardy more of a risk to society because it means he has less control over his impulses, Haller argued.
Wednesday, August 11, 2010
Notable Atkins capital habeas ruling from the Eighth CircuitThe Eighth Circuit has an interesting discussion of the legal issues surrounding the Supreme Court's ban on the execution of the mentally retarded in the course of reversing the dismissal of a capital habeas action. The opinion in Jackson v. Norris, No. 09-1229 (8th Cir. Aug. 11, 2010) (available ehre), gets started this way:
This is a petition for habeas corpus relief under 28 U.S.C. § 2254 brought by Alvin Jackson, an Arkansas prisoner facing execution. Jackson’s petition, before us for the second time, asserts, as relevant here, that he is mentally retarded and, therefore, his execution would violate the Eighth Amendment under Atkins v. Virginia, 536 U.S. 304 (2002) (the “Atkins claim”). In his first appeal, we reversed the district court’s dismissal of the Atkins claim on the basis of procedural default. See Jackson v. Norris (Jackson I), 256 F. App’x 12 (8th Cir. 2007) (unpublished per curiam), cert. denied, 128 S. Ct. 2907 (2008). On remand, the district court granted summary judgment to Norris, dismissing the Atkins claim on the merits, without an evidentiary hearing (an “Atkins hearing”). Jackson appeals. Because Jackson has made the requisite showing for an Atkins hearing, we reverse the district court’s denial of such a hearing, vacate the district court’s grant of summary judgment to Norris on the Atkins claim, and remand to the district court for an Atkins hearing.
Tuesday, August 10, 2010
Effective new commentary on the “categorical approach" to assessing past criminal historyAnyone involved in federal sentencing debates over any offender with any serious criminal history knows (probably too well) the ugly jurisprudence that has developed int he circuit courts over how prior crimes are to be labelled. Helpfully, Doug Keller has this new piece on SSRN to help folks sort out and assess this jurisprudence. His piece is titled "Causing Mischief for Taylor's Categorical Approach: Applying 'Legal Imagination' to Duenas-Alvarez," and here is the abstract:
This Article examines a recent trend in some circuits to hobble the “categorical approach.” That doctrine finds roots in Taylor v. United States, 495 U.S. 575 (1990), where the Supreme Court selected it to deal with the vexing question of how to determine what someone was previously “convicted of” for purposes of immigration and criminal law. For example, how do you know if someone was previously “convicted of” generic “burglary”? The categorical approach requires courts to answer that question by comparing the elements of the state statute the individual was convicted of (rather than the individual’s actual conduct) with the elements of generic burglary.
In Gonzalez v. Duenas-Alvarez, 549 U.S. 183 (2007), the Supreme Court stated that courts should not use “legal imagination” when using the categorical approach. Thereafter, a circuit split developed over the meaning of the Court’s comment. Some circuits believe that the Court dramatically changed Taylor by requiring courts to determine how a state statute has been applied in practice before holding that its elements do not encompass a qualifying offense. Other circuits believe that the Court was merely warning courts against interpreting the scope of the elements of state statutes in broad, novel ways. This Article argues that these later courts have it right -- that the Court did not intend to alter the categorical approach and instead wanted to warn courts against misinterpreting state law. In the course of justifying that conclusion, this Article offers a defense of the much-beleaguered categorical approach -- and its peculiar results. The Article also endeavors to show that the doctrine is not as complicated as it might appear at first blush.
Thursday, August 05, 2010
Seventh Circuit rejects as-applied Second Amendment challenge to § 922(g)(1), but suggests a non-violent felon might prevail
The Seventh Circuit handed down today another intriguing Second Amendment opinion in which it finds unavailing an as-applied challenge to 18 U.S.C. § 922(g)(1), the federal felon-in-possession criminal prohibition. There are lots of interesting aspects of the panel's ruling in US v. Williams, No. 09-3174 (7th Cir. Aug. 5, 2010) (available here) -- including the fact that retired Justice Sandra Day O'Connor was one of the members of the Seventh Circuit panel (though she was not the author of the unaninous panel opinion).
But Williams strikes me as especially notable because the panel's emphasizes on the fact that the defendant challenging § 922(g)(1) had previously been convicted of a violent felony. And then the panel opinion throws in this very noteworthy paragraph:
And although we recognize that § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams. Even if the government may face a difficult burden of proving § 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges § 922(g)(1) as it was applied to him. See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973) (“[A] person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.”). Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of § 922(g)(1).
It seems that the panel here in Williams may be essentially urging that a better candidate in the form of a non-violent felon, take a Second Amendment run at § 922(g)(1).
A few related Second Amendment posts on related issues:
- Former SG Ted Olson suggests Heller could impact broad prohibitions on felon gun rights
- Assailing the unjustified Second Amendment limits in Heller
- "Convicted Felon Sues State Over Right To Bear Arms"
- North Carolina Supreme Court finds state constitutional right for some felons to bear arms
- The lack of originalist justification for excluding felons from the Second Amendment
- Heller's impact on felon-in-possession crimes finally starting to generate attention
- Notable new Alaska appellate decision on denying gun rights to non-violent felons
- "Why Can’t Martha Stewart Have a Gun?"
- Split en banc Seventh Circuit in Skoien upholds categorical exclusion of DV misdemeanant from Second Amendment
- Skoien and the many challenges of Second Amendment jurisprudence
- Fourth Circuit (unpublished!?) opinion follows Skoien on Heller challenge to § 922(g)(9) ... just after Seventh Circuit vacates it
- Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession
- Assailing the unjustified Second Amendment limits in Heller
Wednesday, August 04, 2010
Crooked local politician seeking sentencing help from fatherhood and Facebook
An upcoming federal sentencing for a local Pennsylvania politician convicted of taking kickbacks is raising a bunch of interesting issues. First, as detailed in this local story, the defendant is seeking leniency based on his fatherhood:
Former Luzerne County commissioner Greg Skrepenak is asking a judge to reduce his possible prison sentence based on the fact he is a single father caring for three children. Skrepenak, 40, is scheduled to be sentenced on Friday for his guilty plea to accepting a $5,000 kickback for helping a developer win entry into a tax forgiveness program.
In a motion filed Tuesday, Skrepenak’s attorney, Peter Moses, says Skrepenak is the sole caregiver for the children because their mother, his estranged wife, Carrie, suffers from drug addiction and is currently incarcerated. “The love and devotion of Mr. Skrepenak for his children is unparalleled, and the unique nature of the family of Mr. Skrepenak present specific mental and physical needs that only Mr. Skrepenak can address,” Moses said....
Skrepenak pleaded guilty in January to corrupt receipt of a reward for official action. Federal sentencing guidelines call for a sentence of 33 to 41 months in prison, but Skrepenak hopes to convince U.S. District Judge Richard P. Conaboy to impose a sentence below that range given his “extraordinary family situation.”
Federal law allows a judge to impose a sentence that is higher or lower than the suggested range if the jurist finds there are compelling reasons to do so, which can include family ties and responsibilities. Moses says that’s clearly the situation in Skrepenak’s case.
Skrepenak, a former NFL lineman, has been the sole caregiver for his children, Christian, 15, Gregory, 13, and Maria, 11 for most of their lives given their mother’s trouble with addiction. It’s important for him to be there for the children to address mental health issues, as well as physical ailments, including sleep apnea and allergies, that they suffer, Moses says.
Moses also contends a reduction is warranted to help erase a gender disparity that exists in sentences that are imposed upon male defendants compared to female defendants. “Historically, sentences for females and single female parents have statistically and significantly been less harsh than those of their male counterparts,” Moses says. “The sentence of Mr. Skrepenak, a single father of three children, should be adjusted downward then, given the need to equalize sentencing disparities among other charged individuals on the basis of gender.”...
Contacted Tuesday night, Moses said he also plans to raise other issues at Skrepenak’s sentencing, including his charitable work and commitment to the community, in hopes of further reducing his sentence. “We thought these issues were important to raise. What the likelihood of success is, I don’t know. We believed it was important to at least raise the issues,” Moses said.
In addition, as this related article details, the defendant is also trying to drum up sentencing support with the help of social media:
Former Luzerne County commissioner Greg Skrepenak has sent a request to some of his Facebook friends to write character letters to a federal judge before he is sentenced Friday.
County Controller Walter Griffith said one of his employees received Skrepenak’s request on the Internet social networking site last weekend, prompting Griffith to issue an e-mail reminding employees that they may not view or respond to Facebook on county time....
Skrepenak’s Facebook request, issued July 30, is one paragraph:
“Many of you know (some may not) that I had to plead guilty in December to charges levied against me from the federal government arising from my political career. I made some dumb mistakes and thought people were friends when I should have separated my personal and public life. I only have myself to blame and had to hold myself accountable so my sentencing hearing is coming up on the 6th.”
He said anyone “willing” to send a character letter on his behalf should send it to Conaboy along with a copy to Moses. “Any effort is greatly appreciated! Thought and prayers are greatly appreciated too!!” Skrepenak wrote.
He only sent the request to some of his 1,725 Facebook friends.
Friday, July 30, 2010
California's three-strikes law and its 2010 race for state attorney general
Thanks to the always great Prison Law Blog, I just saw this interesting article from The Economist, which is headlined "Cooley's law: A Republican district attorney seeks to make three-strikes more humane." Here are excerpts:
The current [Los Angeles DA], Steve Cooley, has other ideas about Three Strikes, which he values as a “powerful recidivist tool” but also considers “draconian”. Mr Cooley has become the first DA in California to have a written policy not to invoke the three-strikes law when neither the current crime nor the previous strikes are violent or serious.
His approach is especially noteworthy because Mr Cooley is also the Republican candidate for attorney-general of the whole state. As a conservative, he need not be as paranoid as his Democratic rival about being called soft on crime. The son of an FBI agent and a proponent of the death penalty, Mr Cooley can point out the obvious — that the law is often egregiously unjust — and still be considered tough.
His Democratic opponent, Kamala Harris, agrees with him on three strikes, but has so far been more circumspect. As district attorney of San Francisco, which many Californians consider quasi-Jacobin, she has to work harder to seem tough. Her Jamaican father and Tamil mother went to Berkeley in the 1960s and marched in the streets. And her sister once lobbied for a (failed) ballot initiative that would have reformed the three-strikes law to exclude non-violent crimes.
Both Ms Harris and Mr Cooley opposed that reform. But Mr Cooley then proposed one that was only slightly more conservative. It would have stopped counting non-violent, non-serious crimes as third strikes, unless a previous strike was heinous. That initiative also failed. Ms Harris thought it “went too far”.
And so, with a Republican unexpectedly in the lead, the debate about the three-strikes law has been set in motion. Its injustices have become embarrassing even to right-wingers. Elaine Howle, the state auditor, recently reported that of the 171,500 inmates in California’s overcrowded prisons last year, a quarter (43,500) were sentenced under the three-strikes law. More than half of these are locked up for crimes that were not serious, at a cost of $7.5 billion.
This story reflects an aspect of the modern politics of sentencing reform that should always be remembered: Republicans and conservatives may be both more willing and more able politically to urge "soft" reforms than Democrats. (The story also reflects the cool reality of writing for The Economist, where the adjective "quasi-Jacobin" can be used without fear of losing its readers.)
Wednesday, July 28, 2010
Second Circuit reverses below-guideline child porn sentence as procedurally unreasonableThe Second Circuit continues its robust work on reasonableness review in child porn cases with an intriguing new little decision reversing a below-guideline sentence in US v. DeSilva, No. 09-2988 (2d Cir. July 28, 2010) (available here). The opinion starts this way:
The DeSilva opinion includes lots of important discussion of the Second Circuit's child porn ruling in Dorvee and the role that psychologist reports often play in these child porn cases. Here is a snippet:
We are called upon here to determine whether the United States District Court for the Western District of New York committed procedural error by engaging in clearly erroneous factfinding at defendant’s sentencing when it relied upon a psychologist’s report — which was prepared for use at a pretrial bail hearing — to find that defendant, an admitted child molester, posed no danger to the community. We hold that the District Court did commit such procedural error and therefore remand for resentencing.
Although a psychologist’s report may provide mitigating evidence for the court’s consideration during sentencing, the court must still conduct an independent evaluation of the defendant in light of the factors set forth in 18 U.S.C. § 3553(a). If the psychologist’s report cannot be squared with the court’s own judgment of the defendant’s culpability and the danger he poses to society, the court is free, in its discretion, to decline to rely on the psychologist’s findings, so long as the court explains its basis for doing so.
Nothing in Dorvee is to the contrary. There, as part of our consideration of a sentence’s substantive reasonableness, we observed that the district court placed more emphasis on 18 U.S.C. § 3553(a)(2)(C) as an aggravating factor than the sentencing record could support. See Dorvee, 604 F.3d at 94. Specifically, the district court in Dorvee based the defendant’s sentence, at least in part, on the “assumption” that the defendant posed a danger to the community merely because he had committed a child-pornography offense. Id. In relying on that “assumption” — which, we found, lacked record support — the district court also ignored, without explanation, a psychologist’s report that tended to suggest that there was not a great need “to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). The fact that the record as a whole could not sustain the district court’s application of § 3553(a)(2)(C) supported our ultimate conclusion that the sentence was not substantively reasonable. See Dorvee, 604 F.3d at 94. We did not, however, suggest that a district court must, without scrutiny, adopt a psychologist’s conclusion that a particular defendant poses no danger to the community.
In short, nothing in Dorvee compels a district court to accept a psychologist’s conclusions at face value. It is possible, of course, that such a psychologist’s report may be accurate. But district courts should scrutinize such reports with the same diligence required during any fact-finding at sentencing, especially if the report’s conclusion is at odds with the defendant’s conduct....
Dr. Joseph’s report dealt only with whether DeSilva would be a danger to the community if released to his parents pending trial. What was relevant for sentencing, however, was whether DeSilva would pose a danger to society once he had served his sentence and was released from prison. No one suggests that the District Court could have ordered that DeSilva be released to his parents following his term of imprisonment, and thus Dr. Joseph’s opinion had only minimal relevance to whether DeSilva would be likely to abuse another boy after his sentence was complete. As such, the report should have had little bearing on the District Court’s sentencing determination; it was not, in any event, an appropriate authority for the Court’s finding that DeSilva posed no “danger to the community.” See J.A. 168-69. In relying on Dr. Joseph’s report, therefore, the District Court “‘select[ed] a sentence based on [a] clearly erroneous fact” and thereby committed “‘procedural error.’” Dorvee, 604 F.3d at 90 (quoting Gall, 552 U.S. at 51).
Friday, July 23, 2010
Justice or unjust disparity for Ponzi schemer getting sentence doubled due to harm to victims?This local report on a recent federal sentencing for a young fraudster, which is headlined "Pizzolato gets 30-year prison sentence in Ponzi scheme," provides a terrific setting in which to consider and debate concerns about post-Booker sentencing disparity. First, here are the basics:
A federal judge today gave a 30-year prison sentence to a Tickfaw man accused of swindling more than 160 people, many of them senior citizens, in a Ponzi scheme based out of his Northshore investment companies.
Wearing an orange jail jumpsuit and shackles, Matthew Pizzolato, 26, turned around and faced the victims sitting in the courtroom. Everyday he is "beside himself," Pizzolato said, shaking his head and crying. "I can't understand how my actions hurt so many people." Pizzolato said he hoped the judge's actions would give his victims "some closure."
But U.S. District Judge Lance Africk said Pizzolato's conciliatory expressions had only developed recently, after he learned that the judge intended to give him a longer sentence than what had been laid out in his plea bargain with federal prosecutors.
In the end, the 30-year sentence was double the maximum laid out in the federal sentencing guidelines, but the judge said that was necessary because of several factors, such as the psychological and emotional harm done to the victims and the advanced ages of many victims. "Mr. Pizzolato, you swindled the salt of the earth,'' said Africk. "You stole from hardworking Americans who toiled their whole lives."
During the hearing, multiple victims talked about how Pizzolato had taken their life savings ensuring them that the money would be invested in conservative securities. Much of the money, however, was actually diverted into Pizzolato's own pocket or lost in the high-risk futures market.
Although he had only an eighth-grade education and a high school equivalency diploma, Pizzolato told clients that he was one of the top 10 financial planners in the country, possessed special training in investing, was a certified estate planner and had graduated from law school.
To make investors believe the scheme was legitimate, Pizzolato issued false account statements and "Certificates of Investment." In some cases, he forged the signatures of his clients to make unauthorized withdrawals from their accounts.
Of the $19.5 million he collected, Pizzolato distributed about $2.8 million back to his clients in the form of "lulling payments, " or supposed returns on their investments, in order to quell any suspicions that he was a fraud. Pizzolato diverted another $9.9 million to use in high-risk futures and commodities trading. The rest, about $1.3 million, he lavished on himself and his family.
As the question in the title to my post is meant to spotlight, I would love to hear readers' views on whether this case is a great example of the ability post-Booker for district judges to do case-specific sentencing justice or a great example of the post-Booker problem of sentencing disparity.
I think it fair to assert that most district judges would not have imposed a sentence on Pizzolato that was double the guideline range and more than was set forth in the plea bargain he made with federal prosecutors. Nevertheless, it seems that legitimate sentencing factors played a central role in the decision to send Pizzolato away for 30 years (including perhaps also his young age, given that he still should may be able to be a free man at an age still much younger than the victims he swindled).
To put a fine point on this debate, here are a couple questions I would like to hear answered by any and everyone who has expressed concerns about post-Booker discretion and disparity:
1. Do you think justice has been served or injustice created by Pizzolato's sentencing?
2. Do you think the Fifth Circuit ought to reverse Pizzolato's sentence on appeal based on disparity concerns? (An appeal waiver might even preclude any appeal and I highly doubt the Fifth Circuit would reverse if this matter comes to them.)
3. Do you think the US Sentencing Commission and/or Congress needs to enact some new guidelines or statutes to diminish this kind of disparate outcome in other cases?
I raise all these question in this context because I genuinely suspect and fear that the vast majority of expressed concerns and complaints about sentencing disparity (especially when coming from current or former prosecutors) are principally concerns and complaints about sentencing leniency. Thus. when a sentence like Pizzolato's is disparately harsh, it provides a good setting to explore whether and how folks really care about disparity apart from leniency.
July 23, 2010 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack
Wednesday, July 21, 2010
Wealthy sex offender reduces(?) prison sentence through plea deal giving $1.6 million (payoff?) to victimI just came across this fascinating state sentencing story from The Oregonean, which is headlined "Portland multimillionaire pleads guilty to molesting neighbor boy, agrees to pay victim $1.6 million." Here are the details of a story that raises a host of substantive and procedural sentencing issues:
A Portland multimillionaire who repeatedly molested a neighborhood boy has agreed to pay his victim $1.6 million and spend about nine years in prison.
The deal, approved Tuesday in Multnomah County Circuit Court, is unusual because most defendants haven't accumulated the wealth of Scott Raymond Strickland -- a former doctor and Alaska Airlines flight attendant, said Josh Lamborn, the civil attorney for the victim. Until last year, Lamborn worked as a prosecutor, specializing in child sexual abuse cases, and he now represents victims of sexual abuse, among others. "In my 13 years in the DA's office, I can count on one hand the people who have the kind of money Mr. Strickland has," Lamborn said.
Lamborn said the money will pay for a possible lifetime of counseling for his client, as well as compensate him for the damage from years of abuse by Strickland. Recently, the victim told his girlfriend, then his mom, that Strickland had sexually abused him starting when he was 9 and ending at 15.
Lamborn largely negotiated the plea deal with Strickland and his attorneys, then sent the district attorney's office a letter on behalf of the victim. He asked prosecutor Don Rees to sign off.
Rees said that in approving the deal, he took into account the victim's wishes and the victim's strong desire not to recount the abuse by testifying in a trial. Strickland, who is now 56, didn't have a criminal history up until now. What's more, Rees said defense attorney Scott Raivio presented "mitigating evidence" that indicated Strickland is unlikely to molest a child again.
By agreeing to pay the money and to spend what likely will amount to 8 1/2 years in prison, with time off for good behavior, Strickland may have avoided more prison. He was originally charged with multiple counts of first-degree sexual abuse, first-degree sodomy and other crimes -- and he likely faced a range between 8 1/3 years and 14 1/2 years in prison under Oregon sentencing guidelines if convicted.
But Strickland pleaded guilty Tuesday to first-degree sexual abuse and the lesser crime of attempted first-degree sodomy. He will be given an opportunity to speak at his sentencing hearing late next month. So will his victim and the victim's mother.
Judge Julie Frantz said Strickland must turn himself in to jail in about two weeks. The extra time between now and then will allow Strickland to liquidate his assets so he can pay the victim.
Strickland was arrested in January but released from jail a few weeks later because he posted the necessary 10 percent of his $4 million bail. According to authorities, he was taken back into custody a short while later after trying to commit suicide by stabbing himself in the neck with an X-acto knife. He was released a short while later, once a judge was convinced he was mentally stable.
In a hearing early this year, Strickland's attorney said his client worked as a doctor for 18 years in Minnesota. Records from the Minnesota Board of Medical Practice show he was forced to resign in 1999 for inappropriate behavior and for falsifying his specialty credentials to say he was certified by the American Board of Internal Medicine. He'd failed his examinations.
He then moved to Oregon to work as a flight attendant and instructor for Alaska Airlines, where he stayed for 10 years.
Strickland told authorities he was worth $2.5 million. After paying taxes and penalties, Lamborn said, most of Strickland's life's savings will go to his victim.
I have quoted the news report at length because this case reads like an exam question for not only a criminal sentencing course, but also a legal ethics exam. Though I am not an expert on criminal justice ethics, is it really kosher for a former prosecutor, now representing a crime victim soon after he quit the DA's office, to negotiate a plea deal with his client's assailant and "then sen[d] the district attorney's office a letter on behalf of the victim [asking the] prosecutor ... to sign off" on the plea deal that he negotiated?
As a technical matter, my legal ethics concerns perhaps turn on whether the arranged payment to the victim — dare I say payoff? — is styled as settlement of a possible civil suit or as restitution to be imposed as part of the formal criminal sentence. Either way, the professional history of the "civil" lawyer putting together this deal makes this all seem a bit hinky. (The ethical issues get even more dynamic if we reasonably assume that the former DA is getting a significant cut of the $1.6 million payment he has now secured for his client, and that the victim's parents played a significant role in the negotiations).
Legal ethics issues aside, I wonder what readers think about this story as a matter of pure sentencing. If the juvenile victim indeed wants this criminal case to be resolved by a plea and all involved want monies going from the defendant to the victim, is there anything wrong with a significant prison time reduction being the glue that helps a plea deal stick? (I am reminded of the Donte Stallworth DUI homicide case in which the family of the victim seemed more eager for an economic settlement than to see Stallworth serve a long prison term.)
Finally, should the sentencing analysis here as to a just prison term give any attention to the defendant's failed suicide attempt and/or his peculiar professional past? As one always interested in (and unsure about) the proper role for offender characteristics at sentencing, this case is a doozy just on that front.
July 21, 2010 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Eighth Circuit declares Begay retroactive and provides relief in 2255 motionWhile I was on the road yesterday, the Eighth Circuit handed down a significant opinion in Sun Bear v. US, No. 09-2992 (8th Cir. July 20, 2010) (available here). Here is the unofficial summary of the ruling from the Eighth Circuit's website:
Begay applies retroactively to cases on collateral review, and defendant was not a career offender in light of Begay; the district court erred, therefore in applying the career offender guideline to defendant; the court could not say the error was harmless since the court did not clearly indicate that the career offender guideline did not impact its sentencing determination; the matter is remanded for further proceedings.
Though not breaking lots of new jurisprudential ground in Sun Bear, the opinion here clarifies and connects a lot of important points for folks working on various criminal history issues, especially on collateral review.
Friday, July 16, 2010
Eleventh Circuit affirms convictions and 3-year prison sentence of Wesley Snipes for tax crimesA busy week for notable federal circuit court rulings in criminal cases concludes with a major league Eleventh Circuit ruling affirming the convictions and sentence of Passenger 57 for tax crimes. The unanimous panel decision in US v. Snipes gets started this way:
Defendant Wesley Trent Snipes appeals from his criminal convictions, after a jury trial, on three counts of willful failure to file individual federal income tax returns for calendar years 1999, 2000, and 2001, in violation of 26 U.S.C. § 7203. Snipes alleges that the trial court committed reversible error in sentencing, jury instructions, and on issues of venue. After thorough review, we affirm the rulings and judgment of the district court in all respects.
The final 10 pages of the 35-page opinion in Snipes discusses various sentencing issues surrounding Snipes efforts to avoid the tax collectors on the money train. But Blade is not going to be a big fan of any aspect of a ruling that confirms that even a celebrity like Snipes cannot jump out of his tax obligations or zigzag away from a prison term. (Hat tip to IMDB for some Snipes' movie titles to (poorly) incorporate into this post.)