Monday, March 02, 2015

Resentencing on tap in Ohio beard-cutting federal assault cases

As reported in this local article, headlined "Judge to re-sentence defendants in Amish beard-cutting case," today brings another sentencing proceeding in a high-profile civil-rights case prosecuted in Ohio's federal courts. Here are the basics:

Federal prosecutors believe that the 16 Amish people who will be re-sentenced by a federal judge this afternoon for a series of beard-cutting attacks in 2011 still have not shown that they understand the harm that they caused.

A memo filed Friday by Kristy Parker, deputy chief of the civil rights division of the Department of Justice, reiterated that U.S. District Judge Dan Polster should give Bishop Sam Mullet and his followers the same sentences he gave them in February 2013, even if they do not stand convicted of carrying out religiously-motivated hate crimes because of an appellate court's decision.

"Simply put, there has also been no indication over the past two years that the time the defendants have served up to this point has in any way caused them to re-evaluate the propriety or the gravity of their behavior other than their acknowledgment that the government takes the matters seriously (even if they do not) and their obvious unhappiness at having been caught and punished," the filing says....

Polster will re-sentence all 16 defendants -- who come from the small farming community of Bergholz in Jefferson County -- at 1:30 p.m. at the federal courthouse in Cleveland. Eight of those defendants have already served out their original sentences, and Polster said in an email to attorneys last week that he intends to sentence them to time served.

At the original sentencing, the judge handed down prison terms ranging from a year and a day to 15 years for Mullet, the community's leader. Prosecutors are expected to ask for the same sentences today because Polster's original ones were lower than those recommended by the U.S. probation office. Defense attorneys are asking the judge to sentence the defendants to time served and to release the eight who remain in prison.

The defendants are members of a breakaway sect of the Amish community made up of 18 families. They were convicted of multiple crimes in September 2012 for carrying out five nighttime raids. In the attacks, members of the community rousted five victims out of bed and chopped off their beards and hair with horse mane shears and battery-powered clippers. The attackers documented the attacks with a disposable camera....

A sentencing memo filed for Mullet says that its unlikely that Mullet would ever do something similar again, and that the Bergholz Amish community is still shunned by other Amish communities because of the case and its surrounding publicity.

In a memo filed Friday, prosecutors say that "it is the defendants themselves who created these circumstances through their own lawless conduct, yet they continue to blame the government and their properly imposed prison sentences for the harms they feel they have suffered. "The defendants' sentencing memoranda leaves the impression that they are the victims in this case, not the people they violently assaulted during nighttime raids and orchestrated attacks," the memo continues.

Some related prior posts:

March 2, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Friday, February 27, 2015

How might US Sentencing Commission's new Tribal Issues Advisory Group deal with marijuana law and policy?

The question in the title of this post is prompted by this notable new US Sentencing Commission press release, which was released on a day I am participating in the first ever Tribal Marijuana Conference (some background here via MLP&R).  Here are excerpts from the press release:

The United States Sentencing Commission announced today the formation of a Tribal Issues Advisory Group (TIAG), which will consider methods to improve the operation of the federal sentencing guidelines as they relate to American Indian defendants, victims, and tribal communities.

The TIAG will look at whether there are disparities in how federal sentencing guidelines are applied to defendants from tribal communities or in the sentences received by such defendants as compared to similarly situated state defendants. The group will also examine whether there should be changes to the guidelines to better account for tribal court convictions or tribal court orders of protection and consider how the Commission should engage with tribal communities in an ongoing manner....

The TIAG is composed of federal appointees and at-large members. The federal judge appointees are Judge Diane Humetewa from Arizona, Judge Brian Morris from Montana, Chief Judge Ralph Erickson from North Dakota, and Chief Judge Jeffrey Viken and Judge Roberto Lange from South Dakota. The ten at-large members were selected from a broad array of applicants from across the country, and they represent a wide spectrum of tribal communities and roles in the criminal justice system. The TIAG at-large members include tribal court judges, social scientists, law enforcement officials, defense attorneys, and victims’ advocates.

“I commend the Commission for creating a mechanism to develop insights and information that have the potential to improve the lives of our citizens in Indian Country,” said Chief Judge Erickson. “I look forward to working with the distinguished members of this Group and with the Commission to rationally address longstanding sentencing issues in Indian Country.”

There are literally hundreds of tribal attendees at the tribal marijuana conference because it seems a number of tribal leaders think there is a chance that, despite federal prohibition, marijuana activity on tribal lands might "have the potential to improve the lives of our citizens in Indian Country." Of course, this new USSC advisory group has more than enough challenging issues to consider without getting into marijuana law and policy matters. But, especially because typically only the feds have full criminal jurisdiction in tribal lands, I think it will unavoidable for TIAG to discuss marijuana enforcement issues if (and when?) a number of tribes jump into the marijuana industry in the weeks and months ahead.

February 27, 2015 in Federal Sentencing Guidelines, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, February 25, 2015

Passage of Smarter Sentencing Act is reportedly "very important" to Prez Obama

This notable new USA Today piece, headlined "Bipartisan sentencing bill gets White House support," reports that President Obama indicated at a meeting yesterday with congressional leaders that he was interested and eager to have the Smarter Sentencing Act become law. Here are the details:

President Obama is throwing his support behind a bipartisan proposal to change the nation's sentencing laws by cutting many mandatory minimum sentences in half. That commitment came out of a meeting with 16 members of Congress at the White House Tuesday night, called by the president to gather their ideas on how to overhaul the criminal justice system.

Members of Congress who attended said the main topic of conversation was the Smarter Sentencing Act, a bill sponsored by Rep. Raul Labrador, R-Idaho, that would reduce mandatory minimum sentences for non-violent drug offenders.

Obama supported a similar bill in the last Congress, but the current proposal goes even further. Mandatory life sentences would be reduced to 20 years — effectively cutting life sentences in half because the current life sentence averages 40 years.

Another change: Those convicted of importing drugs into the United States would not be eligible for the reduced sentences unless they were merely couriers whose role was limited to transporting or storing drugs or money.

Sen. Mike Lee, R-Utah, who has introduced a companion bill in the Senate, said Obama "focused specifically" on the Smarter Sentencing Act "and his desire to have it passed."

"It was showing us that this is very important to him, and he has the resources of his administration that he's been willing to put out there," Lee told KSL Radio in Salt Lake City Wednesday.

White House spokesman Frank Benenati said Wednesday that the White House is still reviewing the text of the legislation, but that "it certainly appears" that the Labrador proposal meshes with the president's aims to "make our communities safer, treat individuals more justly and allow more efficient use of enforcement resources."

Obama has signaled his support for sentencing changes as recently as Monday, when he praised governors who had signed similar bills at a White House dinner. "Last year was the first time in 40 years that the federal incarceration rate and the crime rate went down at the same time," Obama said. "Let's keep that progress going, and reform our criminal justice system in ways that protect our citizens and serves us all."

Labrador said that's an important point for Obama to make. "The main obstacle is the perception that sentencing reform will lead to more crime. And I think the opposite is true," he said. "The concern is that we want to continue to be tough on crime, but we want to be smart on crime."...

House Judiciary Chairman Bob Goodlatte, R-Va., who also attended the meeting with Obama, would not comment on the meeting. He's been cool to sentencing changes in the past, but Sen. Cory Booker, D-N.J., said he thought Goodlatte seemed "remarkably open" to the issue.

February 25, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

SCOTUS in Yates rejects broad interpretation of federal criminal statute via fascinating 5-4 split (with Justice Alito as swing vote)!!

Download (5)I often tell students that one of many reasons I find sentencing and related criminal justice issues so fascinating is because truly hard and interesting Supreme Court cases will rarely be resolved via the traditional (and traditionally boring) political splits among the Justices.  This reality is dramatically and uniquely on display this morning thanks to a ruling for a federal criminal defendant today in Yates v. United States, No. 13-7451 (S. Ct. Feb. 25, 2015) (available here).  Yates has produced this remarkable and unprecedented combination of opinions and votes:

GINSBURG, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and BREYER and SOTOMAYOR, JJ., joined. ALITO, J., filed an opinion concurring in the judgment. KAGAN, J., filed a dissenting opinion, in which SCALIA, KENNEDY, and THOMAS, JJ., joined.

Here are some money quotes from the start of the plurality opinion authored by Justice Ginsburg:

John Yates, a commercial fisherman, caught undersized red grouper in federal waters in the Gulf of Mexico.  To prevent federal authorities from confirming that he had harvested undersized fish, Yates ordered a crew member to toss the suspect catch into the sea. For this offense, he was charged with, and convicted of, violating 18 U. S. C. §1519...

Yates does not contest his conviction for violating §2232(a), but he maintains that fish are not trapped within the term “tangible object,” as that term is used in §1519.

Section 1519 was enacted as part of the Sarbanes-Oxley Act of 2002, 116 Stat. 745, legislation designed to protect investors and restore trust in financial markets following the collapse of Enron Corporation. A fish is no doubt an object that is tangible; fish can be seen, caught, and handled, and a catch, as this case illustrates, is vulnerable to destruction.  But it would cut §1519 loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent.  Mindful that in Sarbanes-Oxley, Congress trained its attention on corporate and accounting deception and cover-ups, we conclude that a matching construction of §1519 is in order: A tangible object captured by §1519, we hold, must be one used to record or preserve information.

And here are excerpts from the close of the dissenting opinion authored by Justice Kagan:

If none of the traditional tools of statutory interpretation can produce today’s result, then what accounts for it? The plurality offers a clue when it emphasizes the disproportionate penalties §1519 imposes if the law is read broadly. See ante, at 17–18. Section 1519, the plurality objects, would then “expose[] individuals to 20-year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense.” Ante, at 18. That brings to the surface the real issue: overcriminalization and excessive punishment in the U. S. Code.

Now as to this statute, I think the plurality somewhat — though only somewhat — exaggerates the matter. The plurality omits from its description of §1519 the requirement that a person act “knowingly” and with “the intent to impede, obstruct, or influence” federal law enforcement. And in highlighting §1519’s maximum penalty, the plurality glosses over the absence of any prescribed minimum. (Let’s not forget that Yates’s sentence was not 20 years, but 30 days.) Congress presumably enacts laws with high maximums and no minimums when it thinks the prohibited conduct may run the gamut from major to minor.... Most district judges, as Congress knows, will recognize differences between such cases and prosecutions like this one, and will try to make the punishment fit the crime. Still and all, I tend to think, for the reasons the plurality gives, that §1519 is a bad law— too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion.  And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.

But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.”  Rodgers, 466 U. S., at 484. If judges disagree with Congress’s choice, we are perfectly entitled to say so — in lectures, in law review articles, and even in dicta.  But we are not entitled to replace the statute Congress enacted with an alternative of our own design.

Great stuff here (including a cite by Justice Kagan to the esteemed source pictured above).  And surely not to be overlooked is the remarkable reality that Justice Alito, who has a history of almost always backing prosecutors in close cases, turned out in Yates to the be key vote (and author of the actual controlling opinion) for a federal criminal defendant.  

Amazing stuff... and I hope some future law review article on Yates considers a title like "One Justice, Two Justice, Red Justice, Blue Justice: What Congress Should Learn from Dr. Seuss about Writing Statutes."  

February 25, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, February 23, 2015

SCOTUS denies review for Eighth Amendment challenge to 15-year mandatory minimum sentence for possessing shotgun shells

I am quite bummed, and more than a bit grumpy, that the Supreme Court this morning denied certiorari review via this new order list of the case of Edward Young, who is serving a "mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer."  I am bummed because, as detailed in this post, I helped file an amicus brief in support of Young's Eighth Amendment claim in the Sixth Circuit and also in support of his SCOTUS cert petition.

I am grumpy because the Supreme Court's willingness to deny review in this case, without even requiring the feds to file a brief in opposition and without any noted dissents, highlights yet again that modern Supreme Court Justices remain much more concerned with whether the worst-of-the-worst state murderers might feel some momentary pain while being executed than with whether Congress and federal prosecutors have gone to far in their application of extreme mandatory prison sentencing terms.   In my amicus brief, I had these concluding sentiments about the Young case and its implications:

The essential facts of this case read like a fictional story about a totalitarian dystopian state imagined by the likes of Franz Kafka or George Orwell: after unintentionally coming into possession 18 of a handful of shotgun shells while helping his widowed neighbor — conduct which is not a crime in his home State or in the vast majority of States in our Union — Edward Young was prosecuted by federal officials using a federal law that mandated a sentencing judge to order Mr. Young to spend the next 15 years of his life locked in a cage.  Disconcertingly, this nightmare tale of extreme punishment is not only true, but it has occurred in the United States of America — a country which was supposedly “conceived in liberty,” Abraham Lincoln, Gettysburg Address, and in which school children still recite their commitment to “liberty and justice for all.”  Pledge of Allegiance (codified in Title 4 of the United States Code § 4)....

[I]f Mr. Young’s fifteen-year mandatory federal prison term based on his harmless possession of shotgun shells is allowed to remain in place without further review, this Court would essentially signal to Congress that it very well could constitutionally make even “overtime parking a felony punishable by life imprisonment.” Rummel v. Estelle, 445 U.S. 263, 274 n.11 (1980).

Edward Young can, and I hope will, continue to assail his prosecution and sentencing via a 2255 petition, but such actions are subject to all sorts of additional difficulties (including the absence of a right to counsel).  Moreover, for me this case was not just about how Young's minor crime was treated by the feds, but whether federal judges believe that the Eighth Amendment provides any limit on the mandatory prison terms that could be imposed by federal authorities.  I strongly believe the Framers thought they were doing something about extreme sentences like the one given to Edward Young when they enacted the Eighth Amendment, but it seems no modern federal judges agree with me on this front.  Grrr.

Prior related posts:

February 23, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Urging more media coverage of the "truly guilty and violent"

Via consistently helpful Marshall Project, I came to see this interesting recent piece by Steve Bogira titled "Guilty As Charged" at the Social Justice News Nexus site. Here are extended excerpts:

The mainstream media and “social justice” journalists treat criminal justice subjects compassionately at times, but the beneficiaries of their compassion diverge. The mainstream media focus on the victims of crime, while social justice journalists focus on victims of the criminal justice system.

The former task is easier, because readers are quick to sympathize with crime victims. The latter task is commendable, because it involves telling the stories of outcasts.  Yet, even those of us who take on the latter task still tend to stick to the easier parts of the topic. Our favorite subjects are innocent people who are wrongly convicted.

When we do write about the guilty, we prefer they be nonviolent offenders.  We’re particularly partial to petty drug offenders. Among violent offenders, we prefer juveniles.

We fear our readers can’t possibly develop compassion for anyone who robs, beats, rapes, or kills.  We ourselves have trouble feeling compassion for such offenders; to do so violates a taboo.  Only if the violent offender has the mitigating factor of youth, or sometimes mental illness, are we likely to take on his or her story.

But this means we neglect much that is immensely significant.  There are too many drug offenders in prison, but prisons are not mainly holding drug offenders or the nonviolent. Seventeen percent of the 49,000 inmates in Illinois prisons were serving terms for controlled substance crimes, and another 1.6 percent had violated the cannabis control act, as of June 2013 (the most recent figures), according to the Illinois Department of Corrections.  That’s less than 19 percent in all who were doing time for drug offenses–compared with 54 percent who’d been convicted of violent offenses. Nationally, the proportion of prisoners serving sentences for violent crimes in 2012 was also 54 percent, according to the Bureau of Justice Statistics.

Stories about the wrongly convicted, and about the drug war, and about juvenile and mentally ill offenders, can lead to much-needed reforms of the criminal justice system. But stories about the truly guilty and violent can have a larger target: our nation’s structural inequality, and the wounds it inflicts every hour, every day, on African-Americans more than any other group, in segregated cities throughout the nation.

Concentrated poverty – resulting from the virulent mix of poverty and racial segregation – yields many poisoned fruits, not the least of which is violence. Children growing up amid concentrated poverty are more likely to witness violence in their neighborhoods, and to experience it in their homes, than children in more advantaged areas. And children growing up amid violence are far more likely to become violent themselves.

There’s a crying need for stories that make the crucial connections between concentrated poverty and violence, and that shift the focus from individual responsibility to our collective culpability. In the context of criminal justice stories, it’s not a connection journalists can make when their subjects are innocent or nonviolent.

February 23, 2015 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, February 22, 2015

Early report on the early impact of Proposition 47 in California

La-me-g-prop47-crimeThis new Los Angeles Times article provides an assessment of what we know and do not know so far about the impact of the big criminal justice reform passed by California voters back in November.  The lengthy piece is headlined "Prop. 47's effect on jail time, drug rehabilitation is mixed so far," and here are excerpts:

In the months since Proposition 47 became law on Nov. 5, California's criminal justice system is already undergoing dramatic changes — and not always in expected ways. The idea was to reduce incarceration times for nonviolent offenders and focus on rehabilitation while easing jail overcrowding.

On the streets, some people who are committing Proposition 47 crimes are not being arrested, avoiding jail but also the drug treatment that could turn their lives around. Narcotics arrests have dropped by 30% in the city of Los Angeles and 48% in areas patrolled by the L.A. County Sheriff's Department, as busy police officers decide that the time needed to process a case is not worth it.

Even when arrested, drug offenders are often issued a citation to appear in court and face little to no jail time if convicted. Law enforcement officials say they have lost an important tool to deal with those offenders, who remain free to get high again or steal to support their habits. Some drug addicts and their relatives agree, saying the new law allows troubled individuals to hurt themselves and steal with little consequence.

Property crimes, which include burglary, theft and motor vehicle theft, have risen in much of Los Angeles County since Proposition 47 passed, according to a Times analysis of crime data. Through the end of January, property crimes were up 10% in sheriff's territory and up 7% in the city of Los Angeles, compared with the same period a year ago.

Some criminal justice experts caution against drawing conclusions, warning that it is too soon to gauge the new law's effect and that other factors could be responsible for the increase. But to Asst. Sheriff Michael Rothans, who oversees patrol operations for the Sheriff's Department, the connection is obvious: More petty criminals on the streets mean more crimes.

"Why is property crime up? It's because of this," said Rothans, who has urged deputies to continue making drug arrests. "The same people are arrested for narcotics and property crimes. We know the cycle is continuing because we know they should have been in jail."

The new law specifies that the financial savings on the incarceration side be reinvested in truancy, drug treatment and mental health programs. But that provision does not take effect until mid-2016. Without the threat of jail time, fewer defendants are opting for the drug treatment programs that judges sometimes offer as an alternative.

Proposition 47 is at the forefront of a national trend to reduce harsh criminal penalties that led to an explosion in prison and jail populations beginning in the 1980s. It follows a revision to California's three strikes law that limits the maximum penalty to those whose last offense is serious or violent. Along with the shift of nonviolent inmates from state prison to county jails approved by the state Legislature in 2011, Proposition 47 is expected to further transform California's criminal justice landscape.

Already, the new law has had a profound effect on the Los Angeles County jails. With fewer people awaiting trial or serving time for offenses that had previously been felonies, overcrowding has subsided. As a result, jailers are keeping county-sentenced inmates for nearly all their time instead of releasing them early.

Thomas Hoffman, a former police official who was a senior advisor for the Proposition 47 campaign, said law enforcement tends to view locking up criminals as the answer, when many have reoffended after spending time in jail. Theorizing about crime increases and the proposition is premature, he said. "The arrest and rearrest of these minor offenses only postpones crime. It doesn't eliminate it. It's a momentary speed bump in these people's lives," said Hoffman, a former director of the state prison system's parole division as well as a former top official in the Inglewood and West Sacramento police departments.

Lenore Anderson, executive director of Californians for Safety and Justice, which coordinated the Proposition 47 campaign, said it will take time for the state's criminal justice system to adjust to the changes and figure out "how to hold people accountable and stop crime."

The key to the new law's success will be whether the cost savings are indeed spent on drug treatment, said Elliott Currie, a professor of criminology, law and society at the University of California, Irvine. "If it is not going to do that, then we are not going to see any change for the better, and we'll see people out there floundering more than they already are," Currie said.

February 22, 2015 in Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, February 21, 2015

"Who Watches the Watchmen? Accountability in Federal Corporate Criminal Prosecutions"

The title of this post is the title of this new paper by Michael Patrick Wilt now available via SSRN.  Here is the abstract:

The Department of Justice entered into hundreds of deferred and non-prosecution agreements (DPAs and NPAs) with corporations over the last twenty years, and continues to increase the use of these agreements every year.  However, there is no academic scholarship that explores whether the DOJ has grounded these criminal settlements in traditional criminal sentencing procedures.  Specifically, do these agreements — which can often include hundreds of millions of dollars in penalties — follow the carefully considered principles of the U.S. Sentencing Guidelines for Organizations?

This article considers this question in light of the public choice theory of criminal procedure and concludes that the DOJ is not utilizing the Sentencing Guidelines in a manner consistent with basic notions of government accountability in the criminal justice system.  The article uses data collected from over three hundred deferred and non-prosecution agreements and finds that only a small percentage include an analysis of a monetary penalty based on the Sentencing Guidelines.  The government’s use of a non-traditional process to resolve corporate criminal cases should be concerning in the absence of an institutional check such as the Sentencing Guidelines.  The article urges the DOJ to adopt standardized procedures for future criminal settlements, including a demonstration of the Sentencing Guidelines analysis typically found in plea agreements.

February 21, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, February 20, 2015

Virginia's former first lady facing sentencing after hubby got only two years

Today brings another high-profile white-collar sentencing in the federal court in Virginia as Maureen McDonnell, former first lady, is to come before the same judge who sentenced former Virginia Gov Robert McDonnell to two years' imprisonment last month. Helpfully, Randall Eliason at the Sidebars Legal Blog provides this preview, titled "What to Expect at Maureen McDonnell’s Sentencing." Randall provides this refined summary of the guideline basics and the parties' recommendations:

The Presentence Report prepared by the U.S. Probation Department concludes that the Sentencing Guidelines call for a sentence of 63-78 months in prison. The prosecution agrees with those calculations but recommends the judge sentence her to only 18 months in prison to avoid an unwarranted disparity between her sentence and that of her husband. Mrs. McDonnell’s attorneys argue that, properly calculated, the Sentencing Guidelines call for only 33-41 months, but urge the judge to depart even further from the Guidelines and sentence her to probation along with 4000 hours of community service.

In addition, the Washington Post has this article headlined "Everything you need to know about Maureen McDonnell’s sentencing." But that piece does not set out these guideline basics, so the headline is not accurate for hard-core federal sentencing geeks like me.

UPDATE:  As this Washington Post piece reports, "Maureen McDonnell was sentenced Friday to a year and a day in federal prison after an emotional, hours-long hearing in which the former first lady of Virginia apologized publicly for the first time since she and her husband were accused of public corruption."

As all competent federal sentencing lawyers know, a sentence of a year and a day for the former first lady is actually better than a sentence of one year. That extra day makes her formally eligible to earn good-time credit, which nearly all non-violent offenders earn. So, practically, Ms. McDonnell is now likely to be released from federal custody after only 10.5 months in the federal graybar hotel.

February 20, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0) | TrackBack

Wednesday, February 18, 2015

"The Divisibility of Crime"

The title of this post is the title of this notable new article by Jessica Roth discussing some of the Supreme Court's recent Armed Career Criminal Act jurisprudence.  Here is the abstract:

Near the end of the Supreme Court’s 2012-2013 term, the Court decided Descamps v. United States, which concerned the application of the federal Armed Career Criminal Act (ACCA). The ACCA is a recidivist statute that vastly increases the penalties for persons convicted of federal firearms offenses if they have previously been convicted of certain qualifying felonies.  Descamps represents the Court’s most recent word on the so-called categorical approach, which directs courts to consider the elements of a prior offense of conviction, rather than the underlying facts of the crime, in determining whether the prior conviction “counts” for purposes of applying the ACCA and other sentencing enhancements and for determining the immigration consequences of prior convictions. This Essay is the first scholarly work to track the immediate effects of Descamps and to explore its implications for the criminal law more broadly. It shows that the decision is indeed having a significant effect on criminal sentencing, resulting in a steady flow of sentencing reversals and prospectively narrowing the class of defendants eligible for sentencing enhancements based on prior convictions. But more broadly, Descamps has called attention to the statutory specificity that legislators are capable of and the adjudicative clarity that courts can promote, if there are incentives for doing so. Until now, the Court has done little to encourage either. Thus, the opinion may push courts and legislators to think more carefully and systematically about what facts must be established to constitute a particular criminal offense, how such facts are established and recorded in the context of an adjudicative proceeding, and the consequences that flow from greater or lesser specificity. Ultimately, this impact may be felt not only in the context of applying recidivist statutes and sentencing enhancements, but also in other contexts that require attention to the basis for a criminal conviction, including the doctrine governing what constituent facts of a crime require jury unanimity and claims under the Double Jeopardy Clause.

February 18, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

AP report details that, functionally, California kills many more sex offenders than murderers

Formally, California sends many more murderers to its death row than any other state and it has more condemned capital prisoners than two dozen other US death penalty states combined.  But California has only managed to actually execute fourteen of those sentenced to die and nobody has been executed by the state in nearly a decade.  Meanwhile, as this new AP report details, over the last eight years, while California has not moved forward with an execution of a single condemned murderer, a total of 78 sex offenders have been slaughtered inside California's prisons.  Here are the basics:

California state prisoners are killed at a rate that is double the national average — and sex offenders ... account for a disproportionate number of victims, according to an Associated Press analysis of corrections records.

Male sex offenders made up about 15 percent of the prison population but accounted for nearly 30 percent of homicide victims, the AP found in cataloging all 78 killings that corrections officials reported since 2007, when they started releasing slain inmates' identities and crimes.

The deaths — 23 out of 78 — come despite the state's creation more than a decade ago of special housing units designed to protect the most vulnerable inmates, including sex offenders, often marked men behind bars because of the nature of their crimes.

In some cases, they have been killed among the general prison population and, in others, within the special units by violence-prone cellmates. Officials acknowledge that those units, which also house inmates trying to quit gangs, have spawned their own gangs.

Corrections officials blamed a rise in the prison homicide rate on an overhaul meant to reduce crowding. As part of the effort, the state in 2011 began keeping lower-level offenders in county lockups, leaving prisons with a higher percentage of sex offenders and violent gang members....

The problem is most acute with sex offenders. Last fall, the corrections department's inspector general reported that so many homicides occurred in the "increasingly violent" special housing units reserved for vulnerable inmates that the department could no longer assume that inmates there could peacefully co-exist. The report looked at 11 homicide cases that were closed in the first half of 2014 and found that 10 victims were sensitive-needs inmates. Using corrections records, the AP found that eight of them were sex offenders.

For a variety of reasons, most states have special facilities incorporated into their "death row," and condemned prisoners on death row are often eager to be well behaved in the hope of increasing their odds of getting out from under a death sentences eventually. Consequently, it can often be much safer for certain prisoners to be condemned and confined to death than to be in the general population. And this new AP report reinforces my sense that a serious California criminal likely would lead a more peaceful and safe life in prison if and when he murders and gets condemned to death than if he just commits a sex offense. (In addition to being a disturbing practical reality, these dynamics might perhaps prompt and incentivize a "rational rapist" in California to murder one or more his victims in order to ensure he can potentially avoid the dangers of the general prison population and live out his life peacefully pursuing appeal after appeal while safe and secure on death row.)

February 18, 2015 in Death Penalty Reforms, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (19) | TrackBack

Monday, February 16, 2015

Feds assert, despite reversal of hate crime convictions, Amish beard-cutters should get same sentences

As reported in this AP piece, headlined "Federal prosecutors want same sentences in Amish beard-cutting case when they are resentenced," the feds are claiming that the reversal on appeal of the most-serious charges against a group of Amish defendants (details here) should not impact their sentence one whit.  Here are the details:

Sixteen Amish men and women whose hate crime convictions in beard- and hair-cutting attacks were overturned still should receive the same sentences, federal prosecutors told a judge who will resentence the group.

The members of the eastern Ohio Amish group are scheduled to be resentenced March 2 after the 6th U.S. Circuit Court of Appeals overturned only their hate crimes convictions. New sentences are required because the original sentences were based both on hate crimes convictions and convictions on other charges but did not differentiate between them.

The attacks were in apparent retaliation against Amish who had defied or denounced the authoritarian style of Sam Mullet Sr., leader of the Bergholz community in eastern Ohio. The U.S. Attorney's Office, in a court filing on Friday, said Mullet should be resentenced to 15 years for concealing evidence and making false statements to the FBI. Both of those charges were not overturned.

The other defendants should also be given the same lesser sentences. Those defendants who have already been released should be sentenced to time served, the prosecutors said.

Prosecutors argued that the conduct that led to the hate crime charges, which included kidnapping, should still be considered even if the defendants are no longer convicted of a hate crime.

Defense attorneys are expected to file their response next week.

I am neither surprised or troubled that the feds want the same sentences imposed on the less culpable defendants who have already finished serving their prison time. But I struggle to see how urging the same exact sentence for Sam Mullet Sr. despite reversal of the most serious convictions against him serves to "promote respect for the law" as 18 USC 3553(a)(2)(A) requires.

Related prior posts:

February 16, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, February 13, 2015

Texas sentencing jury finally brings needed sanction to recidivist drunk driver

A helpful reader, knowing I have long expressed concern about under leniency often shown to dangerous repeat drunk drivers at sentencing, altered me to this notable state sentencing story out of Texas.  The story, headlined "Texas man sentenced to two life terms after 10th DWI," reinforces my view that juries can sometimes be wiser than judges at sentencing:  

Bobby Gene Martin’s brushes with law reinforcement for driving drunk date to 1981. But this week, his 30-year streak of DWI arrests came to an abrupt end.

A Texas jury convicted the 64-year-old of his 10th drunk driving offense along with a retaliation charge for threatening to harm the arresting officer and his family. They gave him two life sentences.

The jury came back with its guilty verdict after three hours of deliberation. And throughout the proceedings, the jury had no idea that Martin had already been arrested nine other times for drunk driving. They only knew that this was at least his third. “You could see they were actually shocked that he’d had 10 DWIs and was still out and about driving around,” Montgomery County Assistant District Attorney Kyle Crowl said.

Martin was also convicted of threatening to kill the arresting deputy, his wife, his children and his mother, according to the prosecutor. It also wasn’t the first time he had made such threats, Crowl noted. During a 1999 incident, Martin was accused of threatening to kill the officer who arrested him and “everything he ever loved.”...

Martin will be 80 before he is eligible for parole, according to Crowl.

UPDATE:  I just noticed this Houston Chronicle article which asserts that Bobby Gene Martin is the "33rd [Texas] inmate serving life in state prison for drunk driving" as a result of multiple drunk driving convictions. Though I do not know Texas law well, I presume that most (if not all) of these recidivist drunk drivers were given these life sentences by juries and that they are eligible for parole at some point like Bobby Gene Martin. I make this point because it highlights some contrast between these recidivist alcohol offenders and the hundreds of recidivist drug offenders serving life without parole in federal prison due to a mandatory LWOP statutory minimum sentencing term.

February 13, 2015 in Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (3) | TrackBack

"The Perils of Overcriminalization"

The title of this post is the title of this new Heritage "Legal Memorandum" authored by Michael Mukasey and Paul Larkin.  Here is its abstract:

Overcriminalization is a serious problem that has led to questionable prosecutions and injures the public interest.  Thousands of criminal laws are scattered throughout the federal criminal code, and hundreds of thousands of regulations are supposed to implement those laws.  In addition, the whole notion of consciousness of wrongdoing in the criminal law has been obscured.  

Because prosecutors have no incentive to change a system that rewards their excesses, revisions may have to come from Congress — itself the source of much of the problem, both in the laws it passes and in the standards it uses to measure prosecutorial success.  If we are to take pride in the claim that we are a nation governed by law, the criminal law must be sensible and accessible, not simply a trap for the unwary.

February 13, 2015 in Offense Characteristics, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, February 11, 2015

District Judge, to chagrin of feds, relies on jury poll to give minimum sentence to child porn downloader

This fascinating story from the federal courts in the Northern District of Ohio provides an interesting perspective on the input and impact that juries can have in the federal sentencing process in at least one courtroom. The piece is headlined "Cleveland federal judge's five-year sentence in child porn case frustrates prosecutor," and here are excerpts:

A federal judge in Cleveland sentenced a Dalton man convicted of child pornography charges Tuesday to five years in prison, a move that frustrated prosecutors who pushed for four times that length based, at least in part, on a recommendation from the U.S. probation office.

A jury convicted Ryan Collins in October of one count possessing, distributing and receiving child pornography and one count possession of child pornography. Police found more than 1,500 files on his computer, and he was charged with distributing because he used peer-to-peer file sharing programs.

Under federal law, a judge can sentence a defendant to up to 20 years in prison if he or she is found guilty of child porn distribution. On Tuesday, during Collins' sentencing, Assistant U.S. Attorney Michael Sullivan asked U.S. District Judge James Gwin to give the maximum sentence for the charge.

Meanwhile, the U.S. Department of Probation and Pretrial Services said a guideline sentence for Collins, who is 32 and has no criminal history, would be between about 21 and 27 years in federal prison. While higher than the maximum sentence, the office's calculation accounted for several factors in Collins' case -- including the age of the victims and not taking responsibility for his actions.

But Gwin handed down a five-year sentence to Collins, the minimum allowable sentence for a distribution charge. The judge said that after Collins' trial, he polled jurors on what they thought was an appropriate sentence. The average recommendation was 14 months, Gwin said.

In addition to citing the juror's various jobs and where they lived, Gwin said the poll "does reflect how off the mark the federal sentencing guidelines are." He later added that the case was not worse than most of the child pornography cases that he sees and that five years "is a significant sentence, especially for somebody who has not offended in the past."

Sullivan objected to the sentence, saying it is based on an "impermissible" survey. He also argued before the sentence was issued that 20 years was justified because prosecutors did not show the jury each one of the images found on Collins' computer. Gwin rejected that argument, though, explaining that all of the photos were presented as evidence, even if they were not shown at trial.

Under federal law, either prosecutors or defense attorneys can appeal a sentence if they feel it was improper. It is uncommon for federal judges to issue sentences that go so far below the probation office's recommendations, though, so appeals by prosecutors are rare. Mike Tobin, a spokesman for the U.S. Attorney's Office, said that prosecutors "will review the judge's sentence and make a decision at the appropriate time."...

Iams also said that even though his client was convicted by a jury, the fact that he went to trial may have helped Collins in the end, since Gwin was then able to poll the jury and get an idea of where the community's feelings were on sentencing. "If he had just pled guilty, that might have not been there. At the end of the day, it may have helped," Iams said.

Collins was taken into custody following his sentencing. In addition to the prison sentence, Collins was also ordered to pay a $5,000 fine and $10,000 in restitution to two girls seen in the pornography Collins downloaded. Once he is released, he will have to register as a sex offender and will be on supervised release for five years.

February 11, 2015 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, February 09, 2015

Briefs seeking SCOTUS review of 15-year mandatory federal sentence for possessing shotgun shells

As regular readers may recall from this post, a few months ago a Sixth Circuit panel rejected an Eighth Amendment challenge brought by Edward Young, who is serving a "mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer."  I helped file an amicus brief on in support of Mr. Young's claim in the Sixth Circuit, and now I have  helped put together another amicus brief in support of his SCOTUS cert petition.  

The SCOTUS cert amicus, which can be downloaded below, makes a number of distinct points based in part on the (little-known) fact that the Supreme Court has never reviewed on the merits a federal term-of-years sentences under modern Eighth Amendment doctrines.  Writing along with Prof Michael J. Zydney Mannheimer, this brief starts and ends this way: 

This Court has never addressed how the Eighth Amendment’s proportionality and procedural safeguards for defendants facing the most serious penalties are to be applied when federal courts consider a challenge to a federal sentence. Both the original meaning of the Cruel and Unusual Punishments Clause and modern Eighth Amendment jurisprudence reasonably suggest that the proportionality and procedural safeguards in the Eighth Amendment should have a more robust application when federal courts are reviewing federal sentences, especially when a severe sentence significantly conflicts with state punishment norms.

These realities call for this Court to take up Mr. Young’s petition for certiorari and declare unconstitutional his fifteen-year mandatory federal prison term based on his harmless possession of shotgun shells in violation of 18 U.S.C. § 922(g)(1).  The vast majority of U.S. States do not even criminalize possession of shotgun shells by a convicted felon (surely because mere passive possession of ammunition alone is neither inherently dangerous nor a ready instrument of crime absent possession of a firearm).  The handful of States that do criminalize this possession offense treat the crime as a misdemeanor or set a statutory maximum prison sentence for the offense well below the 15- year mandatory minimum federal term Mr. Young received. Moreover, Amici are unaware of any case from any State or locality in which a defendant received any prison sentence of any duration for offense conduct that involved only the harmless possession of a small number of shotgun shells. Legislative enactments and state practices thus provide in this case potent objective evidence of a national consensus against Mr. Young’s federal punishment....

Perhaps a majority of this Court has come now to the view that the Eighth Amendment functionally and formally provides no restrictions whatsoever on how severe Congress may punish adults through prison terms for conduct it deems criminal, and that only structural provisions like the Commerce Clause “impose[] real limits on federal power” and establish “boundaries to what the Federal Government may do” in the exercise of its police powers through the federal criminal justice system.  Alderman v. United States, 562 U.S. ___ (2011) (Thomas, J., dissenting from the denial of certiorari).  But, as explained above, a sounder originalist and modern understanding of the Cruel and Unusual Punishments Clause is as a constitutional provision that can operate to protect individual Americans from the most extreme application of severe mandatory prison terms for the most minor transgression of federal law.  Indeed, if Mr. Young’s fifteen-year mandatory federal prison term based on his harmless possession of shotgun shells is allowed to remain in place without further review, this Court would essentially signal to Congress that it very well could constitutionally make even “overtime parking a felony punishable by life imprisonment.” Rummel v. Estelle, 445 U.S. 263, 274 n.11 (1980).

  Download Young v US Cert Amicus

Prior related posts:

February 9, 2015 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, February 07, 2015

Split Washington Supreme Court decides accomplices must receive distinct sentencing treatment

As reported in this local article, headlined "Washington Supreme Court alters sentencing structure for accomplices," the top court in the Evergreen State earlier this week issued an interest opinion concerning how the state's sentencing structure should be applied to those found guilty as accomplices. Here is a summary from the press report:

In a 5-4 opinion released Thursday, the state’s high court ruled that convicted identity thief Larry Hayes should have received a standard-range sentence after being convicted of a host of felonies in 2009.  Instead, he got a 15-year term under a provision that allows prosecutors to seek extra punishment for egregious offenders. The majority ordered the case back to Pierce County for re-sentencing.

At issue is how people charged as accomplices should be treated under the law at sentencing. For years, Washington law has prescribed that accomplices and principle actors in a crime be exposed to the same culpability, a concept Pierce County Prosecutor Mark Lindquist on Thursday called “in for a penny, in for a pound.”

In an opinion written by Justice Charles Johnson and signed by Justices Charles Wiggins, Susan Owens, Mary Fairhurst and Sheryl Gordon McCloud, the majority ruled that should not always be the case, especially where sentencing is concerned.

Until Thursday, when a prosecutor sought an exceptional sentence for a criminal defendant, he or she had to prove to a jury that certain aggravating factors made the crime worse than usual. The requirement applied to principle actors and accomplices alike. Thursday’s majority opinion said the blanket application to accomplices is improper.

Accomplices should be judged for their specific role in the crime and not just on the crime itself, the majority ruled. An accomplice, to qualify for an exceptional sentence, must have knowledge that the crime he or she is involved in is worse than usual, Johnson wrote, and prosecutors now must prove that knowledge to a jury. “...this finding of knowledge ensures that the defendant’s own conduct formed the basis of the sentence,” Johnson wrote....

Justice Debra Stephens authored the dissent, which was signed by Chief Justice Barbara Madsen and Justices Mary Yu and Steven Gonzalez. Stephens argued that the majority was turning decades of case law on its head for no good reason. “It makes no sense that a principal should be punished regardless of whether he or she knew the crime was a major economic offense but an accomplice, who committed the same crime, should not be,” she wrote.

She went on to say the ruling would have far-reaching impacts. “It is no exaggeration to say that the way co-participants have long been tried in this state will need to change in order to accommodate the knowledge finding the majority superimposes on the enhancement statute,” Stephens wrote.

Lindquist agreed with Stephens’ assessment and said he would consider asking state lawmakers to pass legislation clarifying what they want to happen to accomplices. “They could say, ‘We meant what we wrote: Principals and accomplices are equally culpable,’” Lindquist said.

Appellate attorney Nancy Collins, who worked on Hayes’ appeal, said she thinks the majority got it right and that the application of the ruling would not be onerous. “I don’t see it as a change in the law at all,” Collins said. “The majority said the jury needs to consider the defendant’s individual conduct.”

The full opinion in Washington v. Hayes, No. 89742-5 (Wash. Feb. 5, 2015), is available at this link.

February 7, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Thursday, February 05, 2015

You be the judge: what federal sentence for Silk Road creator Ross Ulbricht?

Ross-ulbricht-600x450This Wired article provides the basic story on a notable modern federal defendant who, thanks to a jury verdict yesterday, is now a high-profile convicted felon awaiting sentencing:

A jury has spoken, and the mask is off: Ross Ulbricht has been convicted of being the Dread Pirate Roberts, secret mastermind of the Silk Road online narcotics empire.

On Wednesday, less than a month after his trial began in a downtown Manhattan courtroom, 30-year-old Ulbricht was convicted of all seven crimes he was charged with, including narcotics and money laundering conspiracies and a “kingpin” charge usually reserved for mafia dons and drug cartel leaders.  It took the jury only 3.5 hours to return a verdict.  Ulbricht faces a minimum of 30 years in prison; the maximum is life.  But Ulbricht’s legal team has said it will appeal the decision, and cited its frequent calls for a mistrial and protests against the judge’s decisions throughout the case.

As the verdict was read, Ulbricht stared straight ahead. His mother Lyn Ulbricht slowly shook her head, and his father Kirk put a hand to his temple. After the verdict, Ulbricht turned around to give his family a stoic smile.  “This is not the end,” Ulbricht’s mother said loudly as he was led out of the courtroom. “Ross is a hero!” shouted a supporter.

From his first pre-trial hearings in New York, the government’s evidence that Ulbricht ran the Silk Road’s billion-dollar marketplace under the pseudonym the Dread Pirate Roberts was practically overwhelming.  When the FBI arrested Ulbricht in the science fiction section of a San Francisco public library in October of 2013, his fingers were literally on the keyboard of his laptop, logged into the Silk Road’s “mastermind” account.  On his seized laptop’s hard drive, investigators quickly found a journal, daily logbook, and thousands of pages of private chat logs that chronicled his years of planning, creating and day-to-day running of the Silk Road. That red-handed evidence was bolstered by a college friend of Ulbricht’s who testified at trial that the young Texan had confessed creating the Silk Road to him. On top of that, notes found crumpled in his bedroom’s trashcan connected to the Silk Road’s code.  Ulbricht’s guilty verdict was even further locked down by a former FBI agent’s analysis that traced $13.4 million worth of the black market’s bitcoins from the Silk Road’s servers in Iceland and Pennsylvania to the bitcoin wallet on Ulbricht laptop.

Ulbricht’s defense team quickly admitted at trial that Ulbricht had created the Silk Road. But his attorneys argued that it had been merely an “economic experiment,” one that he quickly gave up to other individuals who grew the site into the massive drug empire the Silk Road represented at its peak in late 2013.  Those purported operators of the site, including the “real” Dread Pirate Roberts, they argued, had framed Ulbricht as the “perfect fall guy.”...

But that dramatic alternative theory was never backed up with a credible explanation of the damning evidence found on Ulbricht’s personal computer.  The defense was left to argue that Ulbricht’s laptop had been hacked, and voluminous incriminating files injected into the computer — perhaps via a Bittorrent connection he was using to download an episode of the Colbert Report at the time of his arrest.  In their closing arguments, prosecutors called that story a “wild conspiracy theory” and a “desperate attempt to create a smokescreen.” It seems the jury agreed.

Despite the case’s grim outcome for Ulbricht, his defense team seemed throughout the trial to be laying the grounds for an appeal.  His lead attorney Joshua Dratel called for a mistrial no less than five times, and was rejected by the judge each time. Dratel’s protests began with pre-trial motions to preclude a large portion of the prosecution’s evidence based on what he described as an illegal, warrantless hack of the Silk Road’s Icelandic server by FBI investigators seeking to locate the computer despite its use of the Tor anonymity software. As the trial began, Dratel butted heads with the prosecution and judge again on the issue of cross-examining a Department of Homeland Security witness on the agency’s alternative suspects in the case, including bitcoin mogul and Mt. Gox CEO Mark Karpeles. And in the last days of the trial, Dratel strongly objected again to a decision by the judge to disallow two of the defense’s expert witnesses based on a lack of qualifications....

Ulbricht will nonetheless be remembered not just for his conviction, but also for ushering in a new age of online black markets.  Today’s leading dark web drug sites like Agora and Evolution offer more narcotics listings than the Silk Road ever did, and have outlived law enforcement’s crackdown on their competitors. Tracking down and prosecuting those new sites’ operators, like prosecuting Ulbricht, will likely require the same intense, multi-year investigations by three-letter agencies.

Though I am not familiar with all the likely sentencing particulars, I would expect a guidelines calculation in this case to be life and that prosecutors will urge a guideline-recommended LWOP sentence. The defense surely will seek the minimum sentence, which in this case is the not-so-minimum 30 years in the federal greybar hotel.

In addition to pursuing their appeal, Ulbricht's defense team might reach out to Brian Doherty at Reason, who has this provocative commentary headlined "Silk Road: Ross Ulbricht's Loss is a Loss for Justice, Liberty, Safety, and Peace: The operation Ulbricht was found guilty of managing was one guaranteed to save lives, reduce real crime, and preserve liberty." Here are excerpts:

[T]he government's multi-year, incredibly expensive attempt to take down the site and prosecute Ulbricht were bad for liberty, bad for markets, bad for the safety of those who choose to use substances the government has declared forbidden, and bad for America....

Ulbricht, if he's guilty of what they tried him for, is guilty of nothing but trying, and for a while succeeding, in doing a good thing for his fellow citizens, the world, and the future. His case will be remembered not as one of stalwart cops saving the world from dangerous crime, but of a visionary martyr punished for the good he did.

The combination of cryptography and Bitcoin are out of the bottle, and what it ultimately means is that the war on drugs is even more hopeless than it always was. But the government seems to never run out of candidates to be the last person to be a victim of that war, a victim of that mistake. May Ulbricht be among the last.

February 5, 2015 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (7) | TrackBack

Friday, January 30, 2015

Notable new commentary on Yates v. US and overcriminalization

Via email I learned about these two notable new commentaries discussing issues surrounding the federal criminal case Yates v. United States soon to be resolved by the Supreme Court:

SOX on Fish: A New Harm of Overcriminalization by Todd Haugh

Going Overboard: Yates and DOJ’s “Most Serious Offense” Charging Policy by Scott Coffina & Edward James Beale

January 30, 2015 in Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, January 20, 2015

Should we be concerned about the economic or human costs of Colorado's efforts to get Aurora killer James Holmes on death row?

The question in the title of this post is my first reaction to this lengthy Denver Post piece discussing what to expect now that jury selection is about to begin in the Colorado's high-profile capital trial of Aurora theater shooter James Holmes.  The piece is headlined "Aurora theater shooting trial could strain limits of jury service," and here are some excerpts:

After 50 days of testimony and deliberations, the jurors who decided the fate of Oklahoma City bomber Timothy McVeigh emerged haunted. "Have you ever seen 12 people cry?" one juror told reporters about deliberations for the 1997 verdict, handed down in a federal courtroom in Denver.  "I'm 24," another said, "But I don't feel 24 anymore."

Pummeled with horrific accounts of the attack, freighted with finding justice amid tragedy, the jurors had been pushed to near shattering. "I personally felt subject to the same sort of trauma that some of the victims and survivors went through," another said.

Now, imagine if that trial had lasted twice — even three times — as long.  The trial of Aurora movie theater gunman James Holmes, which starts Tuesday with jury selection, is expected to be so lengthy and arduous that it could strain the very process of justice it seeks to uphold.

Nine thousand potential jurors — one of the largest pools in American history — have been summoned for the case.  If picked, jurors will be ordered to serve for as long as five straight months, longer than any state criminal trial in memory in Colorado. They will weigh whether Holmes was sane in July 2012, when he killed 12 people inside the Century Aurora 16 movie theater and tried to kill 70 others, and, if they find he was, they will decide whether he should be executed.

For their service, they will be guaranteed a wage of only $50 a day, a rate that could plunge their income to near the federal poverty level.  Even harder, during what will likely be the most stressful time of their lives, they will be forbidden from talking to anyone about the experience — not their family or fellow jurors or counselors.  Until deliberations begin sometime late this year, the jurors will bear that stress in silence, despite a growing body of research that shows jury service on traumatic cases can lead to mental and physical illness and impact jurors' decision-making....

Since the 1930s, perpetrators of public mass shootings nationwide are more likely to die at the scene than to be captured, according to research by Minnesota Department of Corrections official Grant Duwe.  Of the 45 percent who were arrested, only a fraction ever faced a jury.  And even fewer of those were charged with killing in an attack as devastating to the community as Holmes is for the Aurora theater shooting.

William Bowers, a researcher for the Capital Jury Project at the State University of New York in Albany, likens the theater shooting trial to that currently taking place for one of the suspected Boston Marathon bombers.  "There's nothing really comparable to these cases in modern experience, in terms of duration of the trial and effect on the jury," Bowers said....

But, at its most extreme limits, jury service can become less of a duty and more of an ordeal, legal experts say.  Studies have shown that jurors in traumatic trials can suffer from insomnia, anxiety, anger and depression.  One study documented cases of jurors who broke out in hives, developed ulcers or increased their alcohol consumption while serving at trials. And after the trial is over, some jurors have said they experienced flashbacks....

In recognition of the strains of jury service, courts across the country increasingly offer counseling to jurors. Jon Sarche, a spokesman for the Colorado Judicial Branch, said counseling will be made available to jurors in the theater shooting case once the trial is over.  But — because judges routinely order jurors not to talk about the case with anyone, to protect the trial's integrity — counseling is almost never available to help jurors manage stress during the case.

While this piece effectively highlights some economic and human costs to be borne the jurors in this case, the question in the title of this post also suggests thinking about the economic and human costs sure to burden the lawyers and the court system throughout this case.  And, as the question in the title of this post is meant to highlight, these costs are all endured in service now only to having Holmes sentenced to death; inevitable appeals and other factors will likely mean Holmes is unlikely ever actually to be executed by Colorado for his crimes.

I suspect these kinds of costs and uncertainties explain (and clearly justify?) why the feds were willing to cut LWOP plea deals for other mentally-challenged mass killers like Ted Kaczynski (the Unibomber) and Jared Lee Loughner (the Tucson shooter).  But Colorado prosecutors in this case appear quite committed to enduring all these costs in service to trying to get James Holmes sentenced to death. 

Recent and older related posts (with lots of comments):

January 20, 2015 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack