Friday, April 02, 2010

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

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

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

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

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

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

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

Thursday, April 01, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, March 31, 2010

Padilla prevails in his ineffectiveness claim concerning plea advice

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

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

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

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

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

Tuesday, March 30, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, March 26, 2010

"Punishment as Suffering"

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

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

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

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

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

Thursday, March 25, 2010

"Hacker Gets 20 Years in Largest Identity-Theft Case"

The title of this post is the headline of this Bloomberg news report.  Here are the details:

Miami man was sentenced to 20 years in prison for charges linked to computer hacking in what prosecutors called the largest identity-theft case in U.S. history.

Albert Gonzalez, 28, who had worked as a federal informant, admitted last year he led an international ring that stole 40 million credit- and debit-card records from U.S. retailers including TJX Cos.,OfficeMax Inc. and BJ’s Wholesale Club Inc. U.S. District Judge Patti Saris ordered Gonzalez to also serve three years’ probation and pay a $25,000 fine, while declining to give him the maximum 25-year sentence prosecutors sought.

Gonzalez, a high-school graduate, pleaded guilty to charges laid out in indictments in federal courts in Boston and New York stemming from his computer hacking....

The 20-year sentence “sends a signal that when you do this kind of stuff, you get a serious sentence,” the judge said....

After Gonzalez was first arrested in 2003, he agreed to become an informant for U.S. Secret Service agents, who paid him $75,000 a year for information on the activities of fellow hackers, CNN reported yesterday. Prosecutors contend that Gonzalez was drawn back into computer-hacking activities while serving as an informant.

The government’s lawyers said in court filings Gonzalez and his confederates created the U.S.’s largest identity-theft ring. “Gonzalez was at the center of the largest and most costly series of identity thefts in the nation’s history,” prosecutors said in court papers....

As part of his plea, Gonzalez agreed to forfeit more than $1.65 million in U.S. currency, a condominium in Miami, a blue 2006 BMW automobile, IBM and Toshiba laptop computers and related equipment, a Glock 27 handgun, a Tiffany diamond ring and three Rolex watches.

More than $1 million of the cash Gonzalez agreed to turn over to the government was discovered outside his parents’ home in Miami, prosecutors said. “You do seem remorseful and you did give up that $1 million buried in your parents’ backyard,” Saris said before sentencing Gonzales in the middle of the 15- to 25-year range that was part of his plea agreement with prosecutors.

March 25, 2010 in Offender Characteristics, Offense Characteristics | Permalink | Comments (1) | TrackBack

Wednesday, March 24, 2010

Another vet, claiming PTSD contributed to child porn downloading, gets big sentencing break

This remarkable local story out of Montana, which is headlined "Man blames PTSD for child pornography downloads," reports on another notable sentence break given to a notable child porn offense.  Here are the details, which spotlight many of the hottest issues in current federal sentencing debates:

An Iraq war veteran in Helena, who claimed that post-traumatic stress disorder contributed to his viewing child pornography, was sentenced Tuesday to two years in federal prison, to be followed by 10 years of supervised probation.

Keith Madsen said it was during his deployment in Iraq in 2004 that he began looking at pornography, and when he returned home with an injured arm, depressed and suffering from anxiety attacks, that he escalated his viewing from adult photos to those of children. He would download the images from his work computer at Fort Harrison — where he was a member of the Army National Guard Reserves — onto his iPod for viewing at home.

It was an unusual case in a couple of aspects, including the defense, the plea agreement and the sentencing. The U.S. Attorney’s Office had allowed Madsen, 27, to plead guilty to possession of child pornography, and dropped the more serious charge of receipt of child pornography, which carries a mandatory minimum sentence of five years in prison.

Assistant U.S. Attorney Marcia Hurd said that was done in part because of Madsen’s mental health diagnoses, which include not just PTSD but also long-term anxiety and obsessive-compulsive disorders, and depression. “He’s been given a significant break. We have a policy at the Department of Justice (that in a plea agreement) they must plead to the most significant charge, and I made a special case to give him leniency,” Hurd said.

But she was quick to add that some type of jail term was necessary, not just because by law Madsen could only be on probation for five years or less, but also because of some of the horrific images he downloaded. She said 119 child pornography images were found on his iPod. “These are not just pictures. He wasn’t just surfing the Internet and looking at something that’s not real,” Hurd said. “We are talking about pictures, not of naked teen girls, but pictures of 3-, 4- and 5-year-olds raped and sodomized by adult males and little boys sexually abused by adult females. He kept looking at them and put them on his iPod, and didn’t delete them until he was caught with them.”

Hurd added that Iraq war veterans who had worked on the case were upset that part of Madsen’s defense included PTSD. “They took great offense at the suggestion that service to their country or even PTSD was responsible,” Hurd said. “PTSD is not responsible or an excuse for someone to be involved in child pornography.”

But Fatima Amelkin, a licensed clinical social worker who has treated Madsen since last June, argued that in her opinion, he wasn’t a sexual offender even though an analysis by a federal therapist said he was. She said he has a chemical imbalance that contributed toward his mental health issues, but that he was being successfully treated for those and wasn’t a danger to his family or the community.

“The Veterans Administration didn’t provide him with the appropriate services as he deserved,” Amelkin said, noting that he wasn’t diagnosed with PTSD until five years after his return from Iraq, and that the diagnosis didn’t come from the military, but from her as a private practitioner. “… I don’t see Keith as a classic, or what you would expect a sex offender to be, so I don’t consider him to be a sex offender.”

Friends and family members testified on Madsen’s behalf, saying that his tour in Iraq changed the outgoing, friendly Madsen into someone reserved and quiet, attributed in part to his PTSD....

In letters and testimony, they added that Madsen is a decent man and a hard worker who deserves a second chance. Madsen, who was in tears at times as he addressed the court, professed deep-felt remorse and apologized for the impacts his actions had on those around him. He also noted that he can’t go hunting anymore, will have to register as a sex offender and hasn’t been allowed to pick up his 2-year-old son from day care or even spend time alone with him. “There isn’t one day that passes that I don’t regret what I did,” Madsen said.

He came to the attention of special agents after a routine check of computers at the Veteran’s Administration offices at Fort Harrison on May 14 last year turned up an address of a person accessing child pornography sites on the Internet, Hurd said. It was traced to Madsen’s computer, so as a ruse, Madsen was told on June 2 that the computer had a virus and needed to be replaced. The following day, he told his supervisor that he had been visiting porn sites, then minimizing the pictures while they were downloaded onto his iPod to be viewed at home.

U.S. District Court Senior Judge Charles Lovell said while PTSD is troublesome and that incarceration could possibly harm Madsen, he worried that Madsen wouldn’t get the help he needs in the community, especially due to the five-year probation limitation. “The court has to consider not only the welfare of the defendant, but also the danger to the public and the best manner in rehabilitating the defendant,” Lovell said, adding that the two-year sentence is a significant downward departure from the recommended guidelines of 57 to 71 months for Madsen. “It is perhaps the most lenient sentence this court has imposed in a case of this kind, which is a credit to your background and character.”

This reporting is especially valuable because it spotlights the impact and import of prosecutorial discretion as much as judicial discretion.  The federal prosecutor could (and should?) have demanded a plea to a charge that carried a 5-year mandatory minimum term, but she decided this was a "special case."  But, problematically, one aspect of what makes this case "special" is the fact that the defendant used VA computers while at work to download kiddie porn. 

Of course, as the reporting also shows, this defendant is to suffer some (not especially unique) collateral consequences in addition to his "lenient" prison term in the form of the (scarlet) sex offender label,  permanent loss of his Second Amendment rights, and perhaps permanent diminishment of his parental rights.  I suspect that these collateral consequences will impact and diminish the defendants qualify of life for decades in ways that the exact number of years he serves in prison will not.  And, arguably, the failure of our society to truly take care of our servicemen placed a role in this human tragedy.

March 24, 2010 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

Saturday, March 20, 2010

"Rethinking Sex Offender Laws for Teenage Texting"

The title of this post is the headline of this new New York Times article.  Here is an excerpt:

In most states, teenagers who send or receive sexually explicit photographs by cellphone or computer — known as “sexting” — have risked felony child pornography charges and being listed on a sex offender registry for decades to come.

But there is growing consensus among lawyers and legislators that the child pornography laws are too blunt an instrument to deal with an adolescent cyberculture in which all kinds of sexual pictures circulate on sites like MySpace and Facebook.

Last year, Nebraska, Utah and Vermont changed their laws to reduce penalties for teenagers who engage in such activities, and this year, according to the National Council on State Legislatures, 14 more states are considering legislation that would treat young people who engage in sexting differently from adult pornographers and sexual predators.

And on Wednesday, the first federal appellate opinion in a sexting case recognized that a prosecutor had gone too far in trying to enforce adult moral standards. The opinion upheld a block on a district attorney who threatened to bring child pornography charges against girls whose pictures showing themselves scantily dressed appeared on classmates’ cellphones.

“There’s a lot of confusion about how to regulate cellphones and sex and 16-year-olds,” said Amy Adler, a law professor at New York University. “We’re at this cultural shift, not only because of the technology, but because of what’s happening in terms of the representation of teen sexuality as you can see on ‘Gossip Girl.’”

March 20, 2010 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

Monday, March 15, 2010

Effective NY Times coverage of service as a sentencing factors

Writing in the New York Times, John Schwartz has this effective new piece on military service as a sentencing factor. The piece is headlined "Defendants Fresh From War Find Service Counts in Court," and here are excerpts:

At the federal level, judges are bucking guidelines that focus more on the nature of the crime than on the qualities of the person who committed it. States, too, are forming special courts to ensure that veterans in court receive the treatment their service entitles them to.

While veterans are not considered to be more likely to be arrested than the rest of the population, estimates released by the Bureau of Justice Statistics in 2008 found 229,000 veterans in local jails and state and federal prisons, with 400,000 on probation and 75,000 on parole.

There are about 1 million veterans of the two current wars in the Veterans Affairs system so far, said Jim McGuire, a health care administrator at the agency. He cited statistics suggesting that 27 percent of active-duty veterans returning to civilian life “were at risk for mental health problems” including post-traumatic stress syndrome.

Judges have recognized that many of those returning from war are carrying a heavy burden of damage that might not be physically visible. As one federal district judge in Denver, John L. Kane, wrote in an order giving a defendant probation instead of a prison sentence, the soldier “returned from the war, but never really came home.”

The judges’ decisions are part of a broader fight over sentencing, and over once-rigid federal guidelines that tend to punish the crime while giving little weight to the specific circumstances of the defendant. The guidelines explicitly state that “good works” like military service “are not ordinarily relevant” in determining whether to give sentences below the recommended range.

The Supreme Court, however, in a series of cases, has declared that the federal sentencing guidelines are advisory, not mandatory. The United States Sentencing Commission is considering proposals that would allow military service or other evidence of “prior good works” to be considered as mitigating factors in sentencing decisions.

The Supreme Court seemed to signal greater consideration for military service in a decision in November throwing out the death penalty for a Korean War veteran who was convicted in 1987 of murdering his former girlfriend and her boyfriend.  Calling for a new sentencing hearing, the justices wrote that lawyers for the defendant, George Porter Jr., should have presented evidence of “the intense stress and emotional toll that combat took” on Mr. Porter, who suffered from “dreadful nightmares and would attempt to climb his bedroom walls with knives at night.”

Some recent related posts:

March 15, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Who Sentences? | Permalink | Comments (6) | TrackBack

Reviewing the latest ACCA ruling from SCOTUS

The Florida Times-Union has this effective article discussing the Supreme Court's recent ruling in the Johnson ACCA case (basics here). The piece is headlined "U.S. Supreme Court tosses career criminal sentence in Jacksonville case: High court puts shackles on career criminal guidelines," and here is how it starts:

A U.S. Supreme Court ruling this month in a Jacksonville man's case will force federal courts to use more scrutiny before imposing mandatory sentences for so-called armed career criminals, legal observers say.

The court ruled March 2 that Florida's simple battery law is not a violent crime federal prosecutors can use to enhance sentences for gun criminals.  The federal Armed Career Criminal Act calls for a mandatory 15-year sentence for anyone convicted of a gun crime who has at least three prior violent felonies.

For Curtis Darnell Johnson, who pleaded guilty in 2007 to unlawfully transporting firearms, the opinion means his current 15-year sentence will be reduced.  Prosecutors had used a 2002 battery conviction as one of the underlying crimes to charge him as an armed career criminal.  But Justice Antonin Scalia, writing for a 7-2 majority, said Florida's battery statute doesn't constitute a violent felony because physical force isn't an element of the crime.

Johnson, 41, now faces a 10-year maximum and just two to three years under federal sentencing guidelines, said Assistant Federal Defender Lisa Call of Jacksonville, who argued the case in Washington in October.

The article goes on to explain why it is unlikely that all too many other cases are sure to be directly impacted by the Justices' work in Johnson.  But the amazing reality that Curtis Darnell Johnson is now only facing about 2-3 years under the guidelines rather than being subject to a 15-year mandatory minimum under the Armed Career Criminal Act highlights the dramatic impact of this ruling for at least one defendant.

March 15, 2010 in Mandatory minimum sentencing statutes, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, March 14, 2010

Should showing up for sentencing drunk justify a much tougher sentence?

This local story out of Nebraska, which is headlined "Police: Man Drunk At DUI Sentencing: Jason Botos Needed Help Getting Out Of Car," is mostly sad and comical.  Then again, it also raises the legal issue in the title of this post.  Here are the basics:

Authorities said a drunken driver showed up for his sentencing hearing drunk again.  Jason Botos, 30, was driven to court by his father and investigators said he was so drunk that he had to be helped inside and wasn't able to make his court appearance.

"He was unable to get himself out of the vehicle, he was so intoxicated," said deputy Sarpy County attorney Ben Perlman.  Investigators said Botos' father asked deputies to help carry his son inside the courthouse.

Botos was scheduled to be sentenced for a drunken driving offense in September 2009.  He was driving near Highway 75 and Cornhusker Road when his car jumped a curb and smashed into five other vehicles, critically injuring three people.

"Because he failed to appear for his court appearance, a warrant was issued," said Perlman. Deputies arrested Botos in the parking lot. "He was kind of slumped over.  Two deputies assisted him," said Sarpy County Sheriff's Deputy Tina Anderson. "He could not walk on his own."

Inside the jail, Anderson put Botos through a breath test.  "The test showed he was at a 0.43," she said, a level that is more than five times the legal limit....

Botos now faces a new charge and more jail time in a case that has authorities shaking their heads. "This is a pretty rare case, and extreme case," said Capt. Monty Daganaar of the Sarpy County Sheriff's Office.

Botos will be sentenced on Tuesday.  Between the new charge of failure to appear and the drunken driving conviction, he could get 18 months in jail.

Though I do not know Nebraska law well, I am inclined to assume there is no general prohibition on getting really drunk.  And, though I suppose Botos technically did not quite make it to his scheduled sentencing, it seemed as though he tried (and thus might technically have a mens rea defense to the failure to appear charge).  Thus, I think it is fair to suggest that Botos may end up getting a tougher sentence just because he did not have the good sense to avoid drinking (a lot) just before his sentencing.  Do readers think that bad judgment alone really justify a much tougher sentence?

Of course, I think all drunk driving sentences should be, for deterrence purposes, presumptively much long than they usually are.  But, I am inclined give Botos some credit in this setting for getting his dad to drive his sorry drunk butt to the courthouse for his scheduled sentencing.  And yet, it would appear as though that decision might end up costing him more time than if he just passed out drunk at home.

March 14, 2010 in Offender Characteristics, Offense Characteristics | Permalink | Comments (10) | TrackBack

Thursday, March 11, 2010

"How Young Is Too Young to Face Life in Prison?"

Ht_Jordan_Brown_100311_mn The title of this post is the headline of this new effective piece from ABC News and Good Morning America.  Here is how it starts:

The father of a 12-year-old Pennsylvania boy charged last year with murder says his son is "just an all-around good kid" who doesn't deserve to face life in prison.

A judge will soon decide whether or not Jordan Brown should be tried as an adult for the murder of his soon-to-be stepmother, and face a possible life sentence. The case is at the crux of a national debate on juvenile justice, playing out in a small-town courthouse.

Before his arrest, Jordan was the quarterback of the Pee Wee football team and a good student. His dad says he was "big into sports" with "a lot of friends in school."

But on Feb. 20, 2009, his father's fiancée, Kenzie Houk, 26, was found dead, shot in the head in the family's rural farmhouse in Western Pennsylvania. She was eight-and-a-half months pregnant at the time.

Prosecutors quickly built a case against Jordan, then 11, accusing him of using his shotgun -- a hunting gift from his dad -- to fire one fatal bullet before getting on the bus for elementary school. Within 24 hours, the fifth-grader was arrested for murder. When Chris Brown saw his son being taken away by police, the boy was "scared, frightened, [and] crying."

"Jordan's never been away from me for any length of time since he was born," he recalled thinking. "He was terrified, terrified." Brown said his son "looked like a baby" when he was incarcerated. "He looked like a baby in an orange jumpsuit in an adult jail."

Brown continues to proclaim his son's innocence. But the family of Houk has reportedly described Jordan as angry and profoundly jealous of the fact that the new woman in his father's life was about to have a son, to be named Chris after his dad. Jordan was charged with two counts of homicide. Chris Brown believes his son comprehends what he stands accused of, "but he doesn't appreciate the magnitude of it. He's simply too young."

Too young, many argue, to face the prospect of an adult sentence. Kids charged with murder in Pennsylvania are automatically considered adults and only a judge's decision can move the trial to junvenile court.

If convicted, the two routes have radically different sentences, either life in prison without parole, or juvenile detention and freedom with no record at age 21. Due to tough-on-crime laws, Pennsylvania has more juveniles sentenced to life in prison without parole than any other state.

March 11, 2010 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, March 02, 2010

SCOTUS further restricts the reach of ACCA mandatory minimums in Johnson

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

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

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

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

Sunday, February 28, 2010

"Second chance for killer kids?"

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

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

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

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

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

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

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

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

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

Friday, February 26, 2010

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

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

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

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

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

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

"'Midwest Madoff' sentenced to 9 years"

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

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

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

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

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

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

Thursday, February 25, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, February 22, 2010

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

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

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

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

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

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

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

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

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

Sunday, February 21, 2010

"Terminally ill fraudster given 'life sentence'"

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

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

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

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

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

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

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

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

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

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