Sentencing Law and Policy

New report assails criminal justice approach to illegal immigration problems

As detailed in this press release, Human Rights Watch has today released this notable new report titled "Turning Migrants Into Criminals: The Harmful Impact of US Border Prosecutions."  That title reveals the major theme of the report, but here is more from the start of the press release:

The skyrocketing criminal prosecutions of migrants for illegally entering or reentering the United States carry huge human and financial costs, Human Rights Watch said in a report released today.  Imprisoning migrants with minor or no criminal records before deporting them often affects people seeking to reunite with their families in the US or fleeing persecution.

The 82-page report, “Turning Migrants Into Criminals: The Harmful Impact of US Border Prosecutions,” documents the negative impact of illegal entry and reentry prosecutions, which have increased 1,400 and 300 percent, respectively, over the past 10 years and now outnumber prosecutions for all other federal crimes.  Over 80,000 people were convicted of these crimes in 2012, many in rapid-fire mass prosecutions that violate due process rights.  Many are separated from their US families, and a large number end up in costly and overcrowded federal prisons, some for months or years.

“The US government is turning migrants into criminals by prosecuting many who could just be deported,” said Grace Meng, US researcher at Human Rights Watch and author of the report.  “Many of these migrants aren’t threats to public safety, but people trying to be with their families.”

The Senate immigration reform bill, proposed by the bipartisan “Gang of Eight,” calls for an additional US$250 million for increased prosecutions of these cases in Tucson, Arizona, and increasing the maximum penalties for many categories of people charged with illegal entry and reentry.  The US government should instead end unnecessary prosecutions for illegal entry or reentry.

The report is based on a thorough analysis of US government data and interviews with more than 180 people, including migrants and their families, lawyers, prosecutors, and judges.

The rapid growth in federal prosecutions of immigration offenses is part of a larger trend in which criminal law enforcement resources have been brought to bear on immigration enforcement, traditionally considered a civil matter.  Illegal entry — entering the country without authorization — is a misdemeanor.  Illegal reentry — reentering after deportation — is a felony.

Notable developments in penalty phase of Jodi Arias' capital trial

As reported in this new USA Today article, the "sentencing hearing for convicted killer Jodi Arias ground to a halt Monday when her lawyers refused to call any witnesses and a judge refused their requests for a mistrial and to withdraw from the case." Here is more:

Judge Sherry Stephens stopped proceedings and released the jury for the day, telling them to return Tuesday morning. Defense attorney Kirk Nurmi later said he will allow Arias to speak to the jury Tuesday.

Nurmi clashed with Stephens over a motion he filed seeking a mistrial in the sentencing hearing. Nurmi said a witness who was supposed to testify regarding Arias' character had been threatened and was refusing to testify. Patricia Womack has been receiving "threats on her life if she were to testify on Ms. Arias' behalf," Nurmi wrote in the mistrial motion.

But Stephens refused his motion, saying she could not determine why Womack would not testify because she was not present in the courtroom. Nurmi and co-counsel Jennifer Willmott then asked to drop out of the case. Stephens again refused.

Nurmi then refused to present any witnesses, and Stephens called for the recess. Nurmi later said Arias will speak Tuesday. Also previously scheduled to testify on Arias' behalf was a former boyfriend of Arias'.

Arias, 32, was found guilty May 8 of first-degree murder for the 2008 slaying of Travis Alexander, 30, who was found dead in his suburban Mesa, Ariz., home. He had been shot in the head and stabbed nearly 30 times, and his throat was slit. Arias said she killed Alexander, her secret lover, in self-defense; the jury thought otherwise.

Last week, the jury determined that the murder was committed in an "especially cruel manner," making Arias eligible for the death penalty. They heard tearful comments from Travis Alexander's brother and sister as they described how his killing has torn their lives apart.

Now the jury is to consider mitigating factors — evidence about Arias' character and background that may sway them not to impose a death sentence. Stephens instructed jurors that they could consider a handful of factors when deciding what sentence to impose, including Arias' lack of a prior criminal record and assertions that she was a good friend, had an abusive childhood and is a talented artist....

Under Arizona law, if the jury cannot reach a unanimous decision on sentencing, the panel would be dismissed and a new jury would hear arguments and determine a sentence. If the second panel cannot reach a unanimous agreement, the judge then would sentence Arias....

Earlier this week, her lawyers asked to be allowed to step down from the case, but a judge denied the request. Legal experts say the decision was not a surprising one because the lawyers have a conflict of interest with their efforts to save her life after Arias said she would rather die.

Recent related posts:

• After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
• Are there (and/or should there be) special death penalty rules for female murderers?
• Arizona jurors quickly make finding for Jodi Arias to be formally death eligible

Noting distinct criminal sentencing responses to "hacktivism" in the US and the UK

This new piece from Salon highlights the severity of the US sentencing system relative to our friends across the pond.  The piece is headlined " U.K. hacker sentencing highlights U.S. overreach: LulzSec members in Britain receive maximum of 15 months, while hacktivist Jeremy Hammond faces life in prison here." Here is how it starts:

Hacktivist Jeremy Hammond has already spent 14 months in pretrial detention at federal prison in New York.  He awaits trial for his alleged involvement in the famed LulzSec Stratfor hack and faces up to 42 years in prison.  Meanwhile, across the Atlantic, sentencing of admitted LulzSec hackers in Britain highlights the severity of the U.S. approach to hacktivism.  Three young men in the U.K. pled guilty to activity attributed to the Anonymous offshoot; their charges mirror those facing Hammond, while the extent of punishment is wildly disparate.

As activist publicity organization Sparrow Media pointed out Thursday, “three English co-defendants who plead guilty to being members of the Lulzsec hacktivist group were today sentenced by a UK court.  Ryan Acroyd, the most technically experienced of the three, received the longest sentence -- he will spend 15 months in prison.”

Lots of thoughts on how to save more innocent lives on highways

The Room for Debate on-line section of the New York Times has this new set of pieces discussing drunk driving and the law's responses thereto.  Here is the section's set up:

This week the National Transportation Safety Board recommended lowering the blood alcohol limit from 0.08 percent — the measurement now for 13 years — to 0.05 percent.

Is decreasing this number the best way to minimize traffic fatalities?

Here are the contribututions, with links via the commentary titles:

• "Follow Up on a Life-Saving Trend" by Deborah A. P. Hersman, National Transportation Safety Board

• "Tipsy Driving Is Dangerous, Too" by Barron H. Lerner, author, “One for the Road"

• "Let’s Not Stigmatize Innocent Drivers" by Gary Biller, National Motorists Association

• "Lower Levels Mean Fewer Fatalities" by Kathryn Stewart, Safety and Policy Analysis International

• "Other Measures Are Just as Important" by Jan Withers, Mothers Against Drunk Driving

Arizona jurors quickly make finding for Jodi Arias to be formally death eligible

As detailed in this new AP report, the "same jury that convicted Jodi Arias of murder one week ago took about three hours Wednesday to determine that the former waitress is eligible for the death penalty in the stabbing and shooting death of her one-time lover in his bathroom five years ago." Here is more about today's jury finding and what now follows in this high-profile capital case:

The decision came after a day of testimony in the "aggravation" phase of the trial, during which prosecutor Juan Martinez hoped to prove the June 2008 killing was committed in an especially cruel and heinous manner.

Family members of victim Travis Alexander sobbed in the front row as Martinez took the jury through the killing one more time. He described how blood gushed from Alexander's chest, hands and throat as the motivational speaker and businessman stood at the sink in his master bathroom and looked into the mirror with Arias behind him....

The trial now moves into the final phase, in which prosecutors will call Alexander's family and other witnesses in an effort to convince the panel Arias should face the ultimate punishment. Arias' attorneys also will call witnesses, likely members of her family, in an attempt to gain sympathy from jurors so they give her life in prison. That phase is scheduled to start Thursday morning.

The aggravation phase played out in quick fashion, with only one prosecution witness and none for the defense. The most dramatic moments occurred when Martinez displayed photos of the bloody crime scene for the jury and paused in silence for two minutes to describe how long he said it took for Alexander to die at Arias' hands on June 4, 2008....

Martinez told jurors Wednesday that Alexander "suffered immensely" at Arias' hands. "She made sure she killed him by stabbing him over and over and over again," he said.

The defense didn't have much of a case given how many times Alexander was stabbed, the defensive wounds on his hands, the length of the attack, and the sheer amount of blood found at the scene. Defense lawyers said Alexander would have had so much adrenaline rushing through his body that he might not have felt much pain.

The only witness was the medical examiner who performed the autopsy and explained to jurors how Alexander did not die calmly and fought for his life as evidenced by the numerous defensive wounds on his body.

Recent related posts:

• After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
• Are there (and/or should there be) special death penalty rules for female murderers?

Abortion doc cuts post-conviction deal to get formal LWOP rather than face (symbolic) death penalty

As reported in this ABC News story, "Philadelphia abortion doctor Kermit Gosnell agreed ... to serve two life sentences and waive his right to an appeal in order to avoid the possibility of being condemned to death." Here is more about the case and the deal cut:

Gosnell was convicted of first degree murder on Monday in the deaths of three babies who were born live and then killed by severing their spinal chords with scissors.

As part of the deal, Gosnell, 72, will serve two life sentences without the possibility of parole or the opportunity to appeal.  Prosecutors had sought the death penalty against Gosnell, but because of his advanced age it was deemed unlikely that he would live long enough for death penalty appeals which can last decades.

Gosnell is expected to be sentenced Wednesday.  He will also be sentenced on a conviction of involuntary manslaughter in the death of a female patient who was given a lethal dose of sedatives and pain killers in 2009.

The guilty verdicts came on Monday, the jury's 10th day of deliberations.  Gosnell was accused of performing late-term abortions on four babies who were born alive, but were then allegedly killed by Gosnell.  He was cleared in the death of one of the infants.

For two months, the jury heard often grisly testimony, including from members of Gosnell's staff.  Eight staffers have pleaded guilty to several crimes. Prosecutors said none of the staff were licensed nurses or doctors.

While there are many justifiable complaints about the high costs associated with the administration of the death penalty, this outcome provide a prime example of the cost savings that the death penalty can sometimes help generate.  Only the prospect of the death penalty made this post-conviction deal possible, and the cost to the Pennsylvania court systems from direct and collateral appeals could have been considerable absent this deal.

Recent related post:

• After three PA murder convictions, which form of LWOP will abortion doctor get?

In praise of NTSB seeking to save more innocent lives with tougher DUI laws

I was very pleased to see the news today, like this report from CNN, concerning a new recommendation to lower the level at which a driver is to be considered over the limit.  Here are the details:

A common benchmark in the United States for determining when a driver is legally drunk is not doing enough to prevent alcohol-related crashes that kill about 10,000 people each year and should be made more restrictive, transportation safety investigators say.

The National Transportation Safety Board recommended on Tuesday that all 50 states adopt a blood-alcohol content (BAC) cutoff of 0.05 compared to the 0.08 standard on the books today and used by law enforcement and the courts to prosecute drunk driving....

The idea for a tighter standard is part of a safety board initiative outlined in a staff report and approved by the panel to eventually eliminate drunk driving, which accounts for about a third of all road deaths in the United States.

Hersman said progress has been made over the years to reduce drunk driving, including a range of federal and state policies, tougher law enforcement, and stronger advocacy.  But she said too many people are still dying on America's roads.  The board acknowledged that there was "no silver bullet," but that more action is needed at the federal and state levels.

"In the last 30 years, more than 440,000 people have perished in this country due to alcohol-impaired driving. What will be our legacy 30 years from now?"  Hersman asked. "If we don't tackle alcohol-impaired driving now, when will we find the will to do so?"

Lowering the rate to 0.05 would save about 500 to 800 lives annually, the safety board said....

The NTSB investigates transportation accidents and advocates on safety issues.  It cannot impose its will through regulation and can only recommend changes to federal and state agencies or legislatures, including Congress.  But the independent agency is influential on matters of public safety and its decisions can spur action from like-minded legislators and transportation agencies nationwide.  States set their own BAC standards.

The board also recommended on Tuesday that states vastly expand laws allowing police to swiftly confiscate licenses from drivers who exceed the blood alcohol limits.  And it is pushing for laws requiring all first-time offenders to have ignition locking devices that prevent cars from starting until breath samples are analyzed.

In the early 1980s, when grass-roots safety groups brought attention to drunk driving, many states required a 0.15 BAC rate to demonstrated intoxication.  But over the next 24 years, Mothers Against Drunk Driving and other groups pushed states to adopt the 0.08 BAC standard, the last state falling in line in 2004.

The number of alcohol-related highway fatalities, meanwhile, dropped from 20,000 in 1980 to 9,878 in 2011, the NTSB said. In recent years, about 31 percent of all fatal highway accidents were attributed to alcohol impairment, the NTSB said....

The NTSB cited research that showed most drivers experience a decline in both cognitive and visual functions with a BAC of 0.05.  Currently, more than 100 countries on six continents have BAC limits set at 0.05 or lower, the safety board said.  The NTSB has asked all 50 states to do the same.

A restaurant trade association, the American Beverage Institute, attacked the main recommendation, saying the average woman reaches 0.05 percent BAC after consuming one drink....  A beer industry trade group said it would examine NTSB's recommendation for lowering the blood-alcohol threshold. "However, we strongly encourage policymakers to direct their efforts where we know we can get results: by focusing on repeat offenders and increasing penalties on those with BAC of (0.15) or more," said Joe McClain, president of the Beer Institute....

The NTSB recommended last December that states require ignition interlocks for all DUI offenders and said states should improve interlock compliance.

I concur with the recommendation coming from the Beer Institute that states get tougher ASAP on repeat drunk drivers and those caught driving with high BACs.  But I think that should be done in addition to defining the legal limt for BAC lower, coupled with technological sanctions for first offenders.  Specifically, as I have often noted in prior posts, states that require ignition locks for convicted drunk drivers have seen a marked decline in highway fatalities. Unless and until someone can prove to me that tipsy driving is more valuable than innocent human lives, I will praise any and all efforts by NTSB and others to do everything reasonable to reduce the harms of drinking and driving.

Some related posts on sentencing drunk drivers and advocacy for ignition locks:

• New York Times editorial calls for ignition locks for all drunk drivers
• State judge makes pitch for ignition locks for drunk drivers
• "Car breath tests for 1st-time DUI offenders?"
• Shouldn't we be much, much tougher with drunk drivers?
• Why do we worry so much more about sex offenders than drunk drivers?
• Technology versus toughness to combat drunk driving
• More examples of undue leniency shown to repeat drunk drivers
• "Some Coloradans drive until they kill"
• New York about to require ignition locks as mandated punishment for drunk driving
• Effective commentary complaining about undue leniency for drunk drivers
• Alcohol industry resistant to federal support for more DUI prevention technology
• Notable report on Oregon's use of technology to combat drunk driving
• Ignition lock law in Kansas seeming responsible for huge drop in DUI fatalities

In Chicago for symposium on "Gun Violence and the Second Amendment"

As detailed on this webpage, I am on a panel this morning at the Union League Club of Chicago to help kick off a "symposium on the issue of gun violence and the Second Amendment, co-sponsored by ULCC Public Affairs and the Chicago Bar Association." Here are the details:

ULCC Public Affairs and its Subcommittee on the Administration of Justice, in partnership with the Chicago Bar Association's Human Rights Committee, presents a half-day (8:30 a.m. to 1:30 p.m.) symposium with expert panelists focusing on efforts to curtail gun violence and the parameters of the Second Amendment....

The event begins with continental breakfast at 8:30 a.m. and a panel discussion on the scope and impact of the Second Amendment on the issue of gun violence prevention, moderated by Professor Ann Lousin of the John Marshall Law School.  Panelists for this segment include David G. Sigale (plaintiff's attorney in McDonald, et al v. City of Chicago), Professor Geoffrey R. Stone (former provost of The University of Chicago and dean of its law school), and Professor Douglas Berman (Moritz College of Law at The Ohio State University Law School).

The mid-morning panel, titled "Public Policy Initiatives Related to Gun Control and Gun Violence," will review state and federal legislative responses to gun violence as well as social concerns correlated with gun violence, such as poverty and lack of educational and employment opportunities.  The discussion will be moderated by J. Timothy Eaton of Shefsky & Froelich and will feature panelists Professor Jens Ludwig, University of Chicago; Juliet Leftwich, Legal Director, Law Center to Prevent Gun Violence, and John Tillman, CEO of the Illinois Policy Institute.

As reported in this SCOTUSblog post, the Supreme Court is slated to release orders and opinions at the exact time of my panel discussion.  Based on the blogging variation on Murphy's Law, I am predicting this means that SCOTUS will hand down this morning some of the big sentencing decisions I have been eagerly awaiting, and in turn that I will need a lot more time than usual to report and assses whatever happens.  (Of course, the very fact that I am making this prediction could mean that SCOTUS decides today only some more boring civil rulings that I and other sentencing fans can just ignore.)

"Why Might the Cleveland Kidnapper Get Charged With Murder?"

The title of this post is the headline of this new piece in the National Journal on a topic that has already garnered considerable discussion on this blog.  Here are excerpts:

The government is wading into the murky waters of what constitutes a human life. The prosecutor in the Cleveland kidnappings case said on Thursday that he plans to pursue murder charges against Ariel Castro — the now-infamous abductor of at least three women — “for each act of aggravated murder he committed by terminating pregnancies,” according to reports. Implicit in the charges is a question central to the abortion debate: Do fetuses count as persons?....

To abortion opponents, [this case] may represent an opportunity to underscore their belief that fetuses are living and abortion is murder whether it's at the hands of Castro or a physician.  Supporters of abortion rights may feel the need to preempt such attacks, underscoring the differences between a medical procedure done at the behest of the mother and an assault on their pregnancy done without their consent....

In fact, there’s some precedent: at least 38 states have laws — some like Ohio’s — against fetal homicide, according to the National Conference of State Legislatures.  In 2011, two proposed bills in Mississippi and Georgia threatened to ensnare women who miscarried, too.  But proponents of personhood, the movement to classify fetuses as living, say such claims are specious and most such bills are aimed at intentionally killing fetuses — through abortion or drug use in some cases.

The Ohio case may provide fodder in the debate, but as far as the legality goes, it's unlikely to set any new precedents.

Recent related post:

• Could and should the death penalty be on the table in the Cleveland kidnapping and sexual torture case?
• Cleveland police report supports Aggavated Murder capital charges against Ariel Castro

"Sentencing Bill Could Cost Taxpayers $760 Million Over 10 Years"

The title of this post is the headline of this recent report concerning the projected price tag for a sentencing proposal being discussed as an approach to dealing with Chicago's gun violence.  Here are the details:

A bill designed to reduce gun violence by increasing gun-crime sentences could end up costing Illinois taxpayers hundreds of millions of dollars, according to an investigation by NBC Chicago and The Chicago Reporter.

State Representative Mike Zalewski (D-Riverside) has proposed a bill to increase Illinois’ minimum mandatory prison sentence for gun violators from one year to three years. "We have to make sure individuals are afraid, frankly, of the law, and afraid of the consequences," Zalewski said. "I think three years sets a high bar that if you’re found guilty of the offense, you’re going to face serious consequences. You’re not going to be right back out on the street."

But critics say the bill is nothing more than "political theatre." What’s more, it’s prohibitively expensive, according to opponents like John Maki, Executive Director of the John Howard Association, a local prison-watchdog group. "It’s going to add about 4,000 inmates in about three years," Make explained. "It’s going to explode the budget."

The results of a study done by NBC Chicagos partner, The Chicago Reporter, would seem to support that view. The Reporter analyzed all criminal cases in Cook County Criminal Court from 2000 through 2011, and estimated that it cost taxpayers more than $5.3 billion to imprison Chicago criminals during that period. If those sentencing costs were extrapolated to include the increased prison time resulting from Zalewski’s gun-sentencing bill, The Reporter estimates the bill to taxpayers would have increased by an additional $760 million during that same time period....

As for the potential added expense of these expanded prison sentences, Zalewski is part of a separate discussion in Springfield, aimed at freeing up space in Illinois’ overcrowded prisons. The discussion centers around reducing the number of non-violent offenders — people convicted of such offenses as prostitution or drugs, for example — to make room for these more violent gun offenders.

Discussing this idea and similar gun sentencing proposals making the rounds in other states, Daniel Denvir has this recent commentary in The New Republic.  Its headline captures its themes: "The Worst Gun Control Idea Has Bipartisan Support: Why states should not pass new mandatory minimums for firearm possession."

Taking note of some notable federal tax sentences

This new Forbes commentary by Robert Wood, headlined "Lauryn Hill Jail Time --- What's A Fair Tax Sentence?", discusses some notable recent federal tax sentencing decisions. Here are excerpts (with a few links preserved):

Grammy winning Singer Lauryn Hill was sentenced in Newark.... Ms. Hill didn’t get probation alone as she had requested, but she drew only 3 months of incarceration. That is quite a good deal compared to the 24 to 36 months she faced. Her lawyer Nathan Hochman did a superb job of keeping her sentence down, stressing how she had stepped up, paid all her taxes, and more. In fact, a prior delay in sentencing may have been due to the fact that paying first is clearly better.

Whether it’s fair could be debated, but most observers would say she was lucky and ably represented. Tax sentencing isn’t an exact science. There are sentencing guidelines, but the judge also has discretion. And that can sometimes make similar missteps seem disparately treated. Just compare Stephen Baldwin’s sentence to Wesley Snipes’ [discussed here].

Ms. Hill pleaded guilty to three counts of failing to file tax returns on more than $1.8 million between 2005 and 2007. Just as with Wesley Snipes, it could have been far worse had she filed false returns....

This is a light sentence given the dollars involved. It’s the second favorable sentence drawn by Hochman in recent weeks. He was one of the lawyers for 79 year-old Mary Estelle Curran of Palm Beach, who had foreign account troubles. Like Ms. Hill, she was facing serious jail time for filing false 2006 and 2007 tax returns.

That case generated national interest with a potential prison term up to six years. U.S. District Judge Kenneth Ryskamp gave Ms. Curran one year probation, then instantly revoked it altogether. The Judge even suggested to Ms. Curran’s lawyers that they seek a Presidential pardon [discussed here].

Ms. Hill couldn’t expect the kind of deference Ms. Curran received, who had actually tried to come forward to the IRS about her foreign accounts and was rebuffed.  But regardless of whether you sympathize with celebrities, they often get bum steers from advisers, as clearly happened with Wesley Snipes.  His three-year stint seemed harsh.

In some ways, tax returns are the great levelers. Some things, after all, you just can’t delegate.

Cleveland police report supports Aggavated Murder capital charges against Ariel Castro

I asked in this post yesterday whether Ariel Castro, the monster who abducted and sexually tortured three young women in Cleveland, could and should possibly face the death penalty under Ohio law.  Based on the newly released police report, discussed in this CBS News piece, I am now convinced that Castro can reasonably be charged with with Aggravated Murder pursuant to Ohio Revised Code 2903.01. Here are the key facts supporting this conclusion:

New details on the women's harrowing ordeal were confirmed in a police report obtained Wednesday by CBS News.... [Michelle] Knight told police, according to the report, that Castro impregnated her "at least 5 times," but that each time he would starve her and then punch her in the stomach to induce a miscarriage.

Here are the key provisions of ORC 2903.01, with the terms in bold and some italics that highlight the basis on which Ohio prosecutors could charge Aggravated Murder against Castro:

2903.01 Aggravated murder.

(A) No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy.

(B) No person shall purposely cause the death of another or the unlawful termination of another's pregnancy while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, trespass in a habitation when a person is present or likely to be present, terrorism, or escape.

Critically, I do not mean here to assert that state prosecutors must now seek the death penalty in their prosecution of Castro.  I can envision lots of sound reasons for local prosecutors to decide not to seek the punishment of death here -- especially if Castro's three primary victims indicate a strong disinclination to go through the difficulties (and media sensation) of a full-blown capital trial and the inevitable appeals that would likely follow if a jury imposed a death sentence.

But I do mean to assert that state prosecutors should now be considering how they will present to an Ohio grand jury the evidence which could support a charge of Aggravated Murder based on Casto's alleged repeated purposeful efforts to unlawfully terminate Michelle Knight's pregnancies. 

Because Ohio legislators amended the state's Aggravated Murder provisions to expressly include "purposely caus[ing]... the unlawful termination of another's pregnancy," Ohio law now expressly reflects a state policy decision that a defendant who intentionally and unlawfully terminated a pregnancy could face an Aggravated Murder charge.  Based on the facts appearing in the recently released police report, Ariel Castro is the poster child for the kind of "unlawful pregnancy terminator" who, in my view, should be facing charges of Aggravated Murder under Ohio law.

Recent related post:

• Could and should the death penalty be on the table in the Cleveland kidnapping and sexual torture case?

Feds and Jeff Skilling cut resentencing deal to fix new guideline range at 168 to 210 months

As had been previewed a public notice to victims from the Justice Department last month (noted here), federal prosecutors and former Enron CEO Jeff Skilling have reached a deal concerning unresolved matters before Skilling's resentencing. This Reuters article details the basics of this notable high-profile sentencing development:

Jeffrey Skilling, the former Enron Corp chief executive, could be freed from prison nearly a decade sooner than originally expected, under an agreement with federal prosecutors to end the last major legal battle over one of the biggest corporate frauds in U.S. history.

The agreement calls for Skilling to see his federal prison sentence reduced to as little as 14 years, down from the 24 years imposed in 2006. It could result in Skilling's freedom in late 2018, with good behavior.

In exchange, Skilling, 59, who has long maintained his innocence, agreed to stop appealing his conviction. The agreement would also allow more than $40 million seized from him to be freed up for distribution to Enron fraud victims.

A resentencing became necessary after a federal appeals court upheld Skilling's conviction but found the original sentence too harsh....  Wednesday's agreement, which is subject to court approval, recommends that Skilling be resentenced to between 14 and 17-1/2 years in prison, including time already spent there. Skilling has been in prison since December 2006.

A helpful readers forwarded to me the 7-page sentencing agreement, which can be downloaded below.  Here are the essential pieces of the deal:

The Government and the defendant agree that, based on the previous decisions of the Fifth Circuit with respect to proper calculation of the United States Sentencing Guidelines range and this Court's prior sentencing rulings on October 23, 2006, the United States Sentencing Guidelines provide that the defendant should be resentenced using an adjusted offense level of 36 and a criminal history category of I, resulting in an advisory guidelines range of 188 to 235 months of imprisonment.

For the reasons set forth below as "Relevant Considerations," the Government and the defendant agree to recommend jointly that the District Court apply a one-level downward variance and resentence the defendant using an adjusted offense level of 35, pursuant to the United States Sentencing Guidelines.  Given that the defendant is located in criminal history category I for resentencing purposes, the jointly recommended adjusted offense level will result in a jointly recommended guidelines range of 168 to 210 months of imprisonment.

Neither the Government nor the defendant will seek any variance or departure from the jointly recommended guidelines range.  The Government may allocute at sentencing, but the Government will not take a position regarding the particular sentence the District Court should impose within the jointly recommended guidelines range.

The defendant agrees to waive all potential challenges to his convictions and sentence, including a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, appeals, and collateral attacks, except as set forth [below]....

Neither the Government nor the defendant will appeal a sentence imposed within the jointly recommended guidelines range.  However, the Government and the defendant each reserve the right to appeal a sentence imposed outside this range.

Download Skilling Sentencing Agreement final.cfv

After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP

As reported in this new USA Today article, "Jodi Arias, convicted of first-degree murder of her on-and-off lover, says she was surprised by the jury's verdict Wednesday and hopes for the death penalty over life in prison."  Here is more:

Arias, who choked back tears as the jury's decision was read, told KSAZ-TV in a courthouse interview after the verdict was announced that she was surprised the jury found her guilty of premeditation in the death of Alexander. "It was unexpected for me, yes, because there was no premeditation on my part," she said.

She said she would "prefer to die sooner than later" and that "death is the ultimate freedom." The Maricopa County sheriff's office said in a statement that Arias was being put on a suicide watch because of her interview comments.

The 12 jurors deliberated reached a verdict after deliberating less than three full days. The televised trial, which began Jan. 2, gained notoriety for its accounts of gore and sex....

Arias spoke to Fox affiliate KSAZ in an exclusive courtroom interview about 20 minutes after the verdict was read.  Arias was mostly calm and chose her words carefully during the 45-minute interview, appearing to hold back tears a few times, much as she did during the trial, according to the interview.

She said she hoped her sentence would be the death penalty. "The worst outcome for me would be natural life (in prison). I would much rather die sooner rather than later," she said.

Arias said she is healthy, doesn't smoke and that longevity runs in her family. That means she would expect to live in prison for a long time. "I said years ago I'd rather get death than life," she said. "I believe death is the ultimate freedom."

Arias added that she hopes the family of victim Travis Alexander can find peace now that the verdict has been rendered. She said she prayed for members of the jury every day and was shocked that they decided the killing was pre-meditated.  Arias said she could "see how it could look that way" but that "there was no premeditation on my part."...

Maricopa County Attorney Bill Montgomery issued a statement after the verdict was read, saying, "We look forward to the next phase of the proceedings, where the state will present evidence to prove the murder was committed in an especially heinous, cruel, or depraved manner."...

Defense attorneys contended that Arias killed Alexander in June 2008 in an unplanned fit of rage as she reacted to what attorneys portrayed as his pattern of emotional and physical abuse.  It had cost Maricopa County taxpayers at least $1.7 million as of late April to defend Arias.

I have not followed this case closely until now, and it will be interesting to see if the capital sentencing proceedings in the days and weeks ahead garner as much attention as the trial did. It will also be interesting to see if Arias and/or her attorneys expressly request the sentencing jury to impose a death sentence.

Based on various press reports, I surmise that Arias appears to be a effective liar, and thus I cannot help but wonder if her desire for a death sentence is not really a desire to die sooner. A shrewd defendant in Arias' position would know that her case and appeals would be sure to get a lot more attention, from courts and abolitionist activists, if she were to be sentenced to death. If Arias gets an LWOP sentence, her life and crimes will likely be forgotten in a few years. But if she gets sentenced to death, we will likely be seeing her name in the papers during each round of legal appeals for decades to come.

Could and should the death penalty be on the table in the Cleveland kidnapping and sexual torture case?

Like perhaps many others, I have feelings ranging from horror to disgust to macabre interest as facts emerge from Cleveland concerning the many awful crimes committed on at least three young women for a decade.  This USA Today story provides just a small flavor of what the victims may have endured for years upon years upon years:

Cleveland police say they'll delay "deep questioning" of Amanda Berry, Gina DeJesus and Michelle Knight as they get acclimated to their families and freedom.  While the three appear to be in good health, a disturbing tale of sexual assault, physical abuse, bondage and other horrors is already emerging....

The Castro brothers allegedly forced all three women to have sex, resulting in up to five pregnancies, according to a report by Cleveland's WKYC-TV.  The station, quoting unnamed law enforcement sources, reported that the Castros also beat the women while they were pregnant, with several unborn children not surviving....

A law enforcement official said there is some evidence that the victims were held in chains during at least part of their captivity.  The official, who is not authorized to comment publicly, did not elaborate on other conditions of their confinement or whether they were ever moved from the home.

In addition, Khalid Samad, a former assistant safety director for the city, said law enforcement officials told him that the women were beaten while pregnant, with unborn children not surviving, and that a dungeon of sorts with chains was in the home.

I cannot help but wonder if the Supreme Court's decision to categorically precluding consideration of the death penalty for even repeat and aggravated child rape in its 2008 Kennedy opinion might well have come out differently had this horrific Cleveland story been known at that time.  Perhaps because I am a blood-thirsty SOB or just because I know what kind of justice I would want if someone abducted and sexual tortured my children in a dungeon for a decade, my guttural first sentencing thought in this case is some regret that a team of men who rape and torture young girls for over four presidential administrations cannot even face the prospect of our ultimate punishment for these kinds of crimes.

That said, as the title of my post here hints, Ohio law might provide a real and realistic basis to purpose a death penalty charge if there is significant evidence showing that the offenders, through physical abuse and forms of torture, "purposely ... cause[d] ... the unlawful termination of another's pregnancy."  If the defendants beat their victims with an intent to cause them to miscarry, they could well be prosecuted in Ohio with Aggravated Murder pursuant to Ohio Revised Code 2903.01(B). 

Of course, a lot more facts are going to need to be known and analyzed before anyone should jump to the conclusion that capital murder charges are possible in this high-profile case.  But because Ohio's statutes expressly reference "unlawful termination of another's pregnancy," I would expect and certainly hope that local prosecutors are already thinking about bringing homicide charges as well as rape and kidnapping charges in this case.  Ohio's legislators, by having amended the state's Aggravated Murder provisions to expressly included purposely causing the unlawful termination of another's pregnancy, indicated an interest in the possibility that the "worst of the worst" sorts of "pregnancy terminators" should possibly face the death penalty.  Based on the facts so far known, I feel very comfortable asserting that the defendants in Cleveland are likely among the "worst of the worst" sorts of "pregnancy terminators."

Should the top 1% get sentenced extra tough for defrauding Social Security?

The question in the title of this post is prompted by this notable report of an interesting federal sentencing proceeding taking place today in Minnesota.  Here are the basics:

A North Oaks couple will be sentenced Monday for defrauding the Social Security Administration of more than $300,000 in medical assistance despite a family net worth of $11 million. James and Cynthia Hood pleaded guilty in October to falsely claiming $332,000 in medical assistance payments for their seriously disabled children over five years.

Prosecutors are recommending a 41- to 50-month sentence for James Hood, but no prison time for Cynthia Hood ecause of the critical role she plays in caring for her two disabled children.  One is autistic and the other has spastic quadriplegic cerebral palsy.

U.S. District Judge Joan Ericksen is expected to sentence the couple in a hearing beginning at 11 a.m. at the federal courthouse in Minneapolis.

The U.S. attorney’s office stated it “does not object to a non-incarcerative sentence for Cynthia Marsalis Hood, which includes home confinement, community service and a fine.” She should normally receive a prison sentence of 27 to 33 months for her conduct, federal prosecutors said in a memorandum last month.

The Hoods’ three children are 15-year-old triplets. Two of them are described by the prosecutors as “severely disabled.” Cynthia Hood sleeps next to one child “on a nightly basis” to keep her airways clear, in addition to helping “with all toileting and bathing needs.”...

The prosecution’s recommendation for a lighter sentence cites specific paragraphs from federal guidelines that indicate Cynthia Hood may have cooperated with the federal investigation. When they pleaded guilty in October, she and her husband paid the U.S. Marshals Service $484,312 as part of the plea agreement....

James Hood is a retired professor at Tulane University in New Orleans. Following Hurricane Katrina in 2005, the couple “decided to relocate to Minnesota to take advantage of the health care and educational resources available for their children,” the court documents state.

Social Security Income (SSI) benefits for a child require that a parent and child have no more than $2,000 in income and assets, excluding a house and vehicle. “SSI is meant to be a resource of last resort,” prosecutors wrote. However, in a benefits interview in February of 2006, Cynthia Hood lied, claiming her husband lived in Louisiana and she was the sole legal guardian of her children, authorities said. She also lied about her assets and said she only had $1,400 in the bank, they said.

She failed to disclose that she and her husband owned a house in Louisiana that they had listed for sale at $278,000, that she held at least 16 bank accounts while he had 68 bank accounts, and that their combined interest income in 2006 was $183,000, prosecutors said.   Her husband also owned a farm in Batavia, Iowa, that consisted of 180 acres of timber and farmland where corn and soybeans grew, with an income in 2005 of $187,910 that included $19,000 in state and federal agricultural payments.

The documents state that Cynthia Hood was purportedly unaware that for three years, they also received Medicaid payments from Louisiana for their children, thereby defrauding both Minnesota and Louisiana at the same time.  The medical payments Hood received in Minnesota included more than $20,000 per year in salary to serve as a personal attendant for her children and $30,000 for a wheelchair-accessible elevator installed in the Hoods’ North Oaks home.

I would like to see the proverbial "book" thrown at these white-collar scoundrals, but I do not see the value or need for that book to include costly federal incarceration for either of these defendants.

In my view, it would be far more fitting to require James Hood to do 3+ years of community service rather than spend time (and taxpayer money) getting three squares and a cot in some low-level federal prison facility.  I think Mr. Hood could and should be ordered as part of probation to helping truly poor people secure the Medicaid funding they deserve or ordered to spend time back in New Orleans helping truly needy folks still struggling with post-Katrina challenges.

UPDATE:  This follow-up press report reports on the the sentencing outcomes for the Hoods, which appear to track the recommendations made by prosecutors:

A wealthy North Oaks woman will serve no prison time for defrauding Medical Assistance of $332,000. On Monday, U.S. District Judge Joan Ericksen sentenced her to probation instead, saying her two severely disabled children “are very, very dependent on you.”

Ericksen ordered Cynthia Hood, 55, to pay a $300,000 fine, but said she was entitled to the lighter sentence because she was not the fraud’s ringleader, cooperated with authorities in investigating her husband, and was essential to caring for the children.

Her husband, James Hood, 69, was sentenced to 3½ years in prison and must pay a $200,000 fine. Erickson called his actions “despicable.”

You be the judge: how would you sentence for the missed tax payments of Lauryn Hill?

After a rescheduling and now some important repayments, an interesting and high-profile federal sentencing is on tap for this morning in Newark, New Jersey.  This new Reuters article provides the basics for all would-be federal sentencing judges to ponder in order to answer the question in the title of this post:

Hip hop artist Lauryn Hill, on the eve of her scheduled sentencing on federal tax evasion charges, has paid off the balance of more than $900,000 she owed in back taxes and penalties, her attorney said on Sunday.

The Grammy-winning musician is scheduled for sentencing on Monday in U.S. District Court in Newark, New Jersey on three charges she failed to file tax returns on more than $1.8 million between 2005 and 2007.  She faces up to a year in jail for each charge, but the final sentence is expected to be adjusted based on her repayment of the money, her attorney said.

She owed at least $504,000 in federal back taxes as well as state taxes and penalties that brought the estimated total to more than $900,000.  "Ms Hill has not only now fully paid prior to sentencing her taxes, which are part of her criminal restitution, but she has additionally fully paid her federal and state personal taxes for the entire period under examination through 2009," her attorney, Nathan Hochman, said in an email.

In April, Hill was admonished by U.S. Magistrate Judge Madeline Cox Arleo for failing to make promised payments on her unpaid taxes ahead of her sentencing.  She had expected to raise the money from a new recording contract last fall but only paid $50,000 when she did not complete the expected tracks, her attorney said.

Her attorney said last month that Hill lined up a loan secured by two pieces of real estate. He said on Sunday that the tax repayment came from a combination of sources but did not include funds from any new record sales.

A new single by Hill, her first in several years, called "Neurotic Society," was posted on iTunes on Friday.  She posted a link to the song on the social media site Tumblr on Saturday, writing, "Here is a link to a piece that I was ‘required' to release immediately, by virtue of the impending legal deadline.  "I love being able to reach people directly, but in an ideal scenario, I would not have to rush the release of new music... But the message is still there," she wrote.

Hill's 1998 solo album "The Miseducation of Lauryn Hill" won the singer, a former member of the Fugees, five Grammy awards.

Given that it appears Hill has now made the government whole after her tax evasion crimes, and especially given that she apparently can be and wants to continue to be a productive tax-paying member of society, I believe I would be very eager to give Hill some kind of (harsh?  expensive?) alternative to imprisonment sentence.

For all sort of obvious and not-so-obvious reasons, I think a significant fine plus a (very burdensome?) community service requirement could and should achieve all the congressional purposes of punishment better than a brief stint in prison.

Indeed, I think a creative shaming sentence could perhaps be especially appropriate in a case like this.It might be very beneficial, and I doubt unconstitutional, to require as part of a probation term that Hill write and release a few songs in which she discusses the consequences of failing to pay required federal taxes and/or in which she discusses the pros and cons of her experiences with the federal criminal justice system. 

UPDATE:  This AP story reports on the actual sentencing outcome for the federal tax code re-education of Lauryn Hill.  I will let readers click through so as not to turn this post into a "spoiler" before reading the comments.

Ohio completes execution of "baby raper" and killer of infant

As detailed in this local report, Ohio this morning carried out an execution this morning of a convicted murderer who made a uniquely disconcerted and unsuccessful argument for clemency in recent months.  Here are the details:

A man convicted of killing a 6-month-old as he raped her was executed today despite his arguments that he never meant to hurt her.  Steve Smith, 46, was executed by lethal injection for the September 1998 killing of his live-in girlfriend’s daughter, Autumn Carter, in Mansfield in northern Ohio.  He was pronounced dead at 10:29 a.m.

Smith had recently tried to get his sentence reduced to life in prison, arguing that he was too drunk to realize that his assault was killing Autumn and didn’t mean to hurt the baby.  The Ohio Parole Board and Gov. John Kasich unanimously turned him down, with the board calling him “the worst of the worst.”

“Smith took the life of an innocent 6-month-old infant while using the baby to sexually gratify himself,” the board said in its decision.  “It is hard to fathom a crime more repulsive or reprehensible in character.”

Among the witnesses to the execution was Smith’s 21-year-old daughter, Brittney, who said she has never believed he committed the crime.  “I know my dad’s innocent,” she said. “I do not believe he did this, and you know, he raised all my cousins, my sister before I was even born, and he never did anything (sexually).”

Brittney Smith, who was 7 when her father was arrested for Autumn’s killing, said she can’t reconcile the crime with the dad she knew, the man who taught her and her sister to fish and play card games and who would watch Disney’s The Lion King over and over with them.  She called him “a wonderful dad” and said she recently introduced him to his only grandchild, a 16-month-old girl named Alannah, whom he was allowed to hold and pose for photos with at a state prison.

Autumn’s mother and other family also had planned to witness the execution and considered it justice.  Autumn’s aunt, Kaylee Bashline, said that her family has no reason to doubt that Smith is guilty, especially with his recent admission, and that it’s not fair that he had 15 years since the crime to live, visit family and say his goodbyes. “He got all that, and what did she get?” Bashline said.  “She got to be killed and put in the ground where none of us gets to see her anymore. I don’t find it right.”

Back on the night of Sept, 29, 1998, Autumn’s mother, Kesha Frye, was awoken by Smith, her live-in boyfriend of four months.  Smith, who was extremely drunk and naked, laid a naked and lifeless Autumn on Frye’s bed, according to court records.

Frye rushed the baby and her other 2-year-old daughter to a neighbor’s house and called 911. Autumn was pronounced dead after doctors tried to revive her for more than an hour, and Smith was arrested.  The baby was covered in bruises and welts, had cuts on her forehead and had severe injuries showing she had been brutally raped, though no semen was present....

At trial, Smith didn’t testify in his own defense on the advice of his attorneys, even as prosecutors repeatedly referred to him as a “baby raper,” showed pictures of Autumn’s battered body and told jurors that her assault lasted up to a half-hour.  Expert witnesses for Smith testified that he might have accidentally suffocated the girl within three to five minutes of the assault.  The jury found Smith guilty of aggravated murder and sentenced him to die.

At an April 2 hearing in which Smith sought to have his death sentence reduced to life in prison, he admitted to the crime and said he didn’t mean to kill Autumn.  He also told the Ohio Parole Board that he was not in his right mind the night of the crime and has to live every day with what he did.  He said he was sorry and wished he could ask Autumn for forgiveness.

Smith became the 51st inmate put to death in Ohio since it resumed executions in 1999. The state has enough of its lethal injection drug, the powerful sedative pentobarbital, to execute two other inmates before the supply expires.  Eight more inmates are scheduled to die from November through mid-2015.

Interestingly, Smith's execution was only the 10th in the United States through the first third of 2013. Unless the pace of executions picks up considerable steam through the next few months, it now seems quite possible that the total number of execution in the US this calendar year may be lower than any years since the early 1990.

Given the broader death penalty trends seen throughout the last few years, it seems now quite possible that President Obama's second term could end up having many fewer total executions than during his first term and during the two terms of his two prior predecessors. (There were a modern record of well over 300 executions nationwide during Bill Clinton's second term from 1997 through 2000, and and I think the likely over/under for executions during Obama's second term might reasonably be set at around 100.)

Is adjective "draconian" fitting for a proposed 13-year prison sentence for insider trader?

The question in the title of this post is prompted by this lengthy new Bloomberg article about the defense's sentencing submission in a high-profile, white-collar federal sentencing scheduled for later this month.  The Bloomberg article is headlined "Chiasson Seeks Leniency From U.S. Judge Citing Charitable Deeds," and here are excerpts:

Level Global Investors LP co-founder Anthony Chiasson, convicted of an insider-trading scheme that reaped $72 million, asked a judge to give him less time in prison than the 13-year term called for by U.S. sentencing guidelines.

Lawyers for Chiasson, 39, called such a sentence “draconian” in a, April 29 court filing. They urged U.S. District Judge Richard Sullivan in Manhattan to impose an unspecified shorter prison term, saying the alleged crimes were “aberrant” and that Chiasson has led an “exemplary life.”

Defense lawyers Greg Morvillo and Reed Weingarten cited Chiasson’s charitable work, including his effort to save his Catholic Jesuit high school in Portland, Maine, from closure, the creation of a scholarship program for his alma mater, Babson College, and his contributions to the Robin Hood Foundation and the Michael J. Fox Foundation.  “Anthony Chiasson is an extraordinary man,” Morvillo and Weingarten said in a memo to Sullivan. “But for the conduct that brings him before the court, Anthony has led an exemplary life.”

Chiasson, who began his career on Wall Street at Solomon Brothers and left SAC Capital Advisors LP to start the hedge fund, is scheduled to be sentenced May 13.  While U.S. court officials said that based on non-binding guidelines Chiasson should serve 121 to 157 months in prison, his lawyers said the appropriate range is 78 to 97 months.

A Manhattan federal jury in December found Chiasson guilty of five counts of securities fraud and convicted former Diamondback Capital Management LLC portfolio manager Todd Newman of one count of conspiracy and four counts of securities fraud.  Newman is scheduled to be sentenced May 2.  The U.S. alleged that the two portfolio managers were part of a “corrupt chain” of hedge-fund managers and analysts and insiders at technology companies who swapped and traded on illicit tips.  The U.S. said Level Global earned $68 million as a result of the insider trading based on material nonpublic information Chiasson received from Spyridon “Sam” Adondakis, a former Level Global analyst who worked for him. 

Defense lawyers estimated the fund earned $11.7 million as a result of trading in the stocks of Dell Inc. and Nvidia Corp. They disputed the government’s allegation that Chiasson based the transactions on illicit information and argued that federal sentencing guidelines allow prosecutors to inflate profits generated as a result of alleged crimes.  “There is only one reason the range is so high: the guidelines’ unrelenting predisposition to punish profit,” Morvillo and Weingarten said.

Morvillo and Weingarten also argued that Chiasson “should not be required to forfeit gains of any co-conspirators.” They said that the fund earned more than $21.6 million on trades by David Ganek, a Level Global co-founder who was ruled by Judge Sullivan to be an uncharged co-conspirator in the insider- trading scheme.  Adondakis, who pleaded guilty, testified that he didn’t tell Ganek about the source of his tips.  Ganek hasn’t been charged with wrongdoing....

Chiasson’s lawyers argued that he deserves a sentence comparable to others convicted of insider trading, including former Goldman Sachs Group Inc. director Rajat Gupta, who was ordered to serve two years in prison, and former Primary Global Research LLC executive James Fleishman and Michael Kimelman, the co-founder of Incremental Capital LLC, who were both given 30- month prison terms.  In January, a federal appeals court allowed Gupta to remain free while he fights his conviction.  Both Fleishman and Kimelman were recently released from prison.

The adjective draconian is often used now as a synonym for unduly harsh punishments, and I am sure I have sometimes used the term this way in various settings. But the faint-hearted linguistic originalist in me cannot help but note that arguably no prison terms should be really called draconian because incarceration was largely an unknown punishment in achient Greece and Draco the lawgiver was (in)famous for prescribing death as a punishment for both major and minor crimes. (With tongue-in-cheek, I suppose maybe a different (but less real) Draco could be expected to be a proponent of long prison terms, though I this this character probably realized he and his family only narrowly avoid imprisonment in Azkaban.)

Historical and literary references aside, these latest insider-trader, white-collar sentencing cases are surely worth watching closely.  My sense is that, especially with the economy seeming to be improving, there is diminishing public and social pressure to "throw the book" at wall-street types like Anthony Chiasson.  And yet, as the arguments in Chiasson's case highlight, every below-guideline sentence given in major white-collar cases provide a strong defense argument in later cases that only below-guideline sentences are proper pursuant to the sentencing commands of 3553(a).

Unsurprising (and justifiable?) gender sentencing disparities in NJ teacher-student sex cases

As detailed in this local story, an award-winning, 31-year-old female teacher in New Jersey avoided any prison time at her sentencing yesterday following a plea to sex charges after an illegal relationship a 15-year-old student.  Here are the basics:

Erica DePalo was in the prime of her teaching career.  Just 31-years-old, with nearly a decade of teaching behind her, letters show the Essex County Teacher of the Year was loved by students and respected by colleagues.  But hidden behind her cheerful facade was a woman suffering from extreme depression and anxiety, DePalo’s lawyer told the court — leading to an illicit sexual relationship with a 15-year-old student....

The former West Orange high school teacher, who admitted to the relationship with her student, was sentenced in state Superior Court today to a three-year suspended sentence, which means she will not serve any prison time if she cooperates with the conditions of her parole.  DePalo also must register as a sex offender under Megan’s Law and cannot seek public or government office nor have any contact with the victim.

The non-custodial plea was largely influenced by DePalo’s psychiatric condition at the time of the sexual relationship, attorneys said.  Months before DePalo began the relationship with the boy, she was diagnosed with bipolar disorder, [defense attorney Anthony] Alfano said.  A doctor incorrectly prescribed anti-depressants which affected her sense of entitlement and judgment....

In court, DePalo took responsibility for the affair, apologizing to the victim in a quivering voice, tears running down her cheeks. "I feel nothing but remorse for my actions and deep, deep sadness for all I’ve lost because of them," she said.

Police charged DePalo in August with first-degree aggravated sexual assault, second-degree sexual assault and endangering the welfare of a child. The first two charges were dropped as part of the plea deal.  If DePalo had gone to trial and been convicted, she could have faced up to ten years in prison.

The non-custodial sentence was previously criticized by West Orange superintendent James O’Neil as too lenient. Both Alfano and Assistant Prosecutor Tony Gutierrez said the victim’s family consented to the plea. Gutierrez said the 15-year-old boy, who was a student in DePalo’s honor’s English class, was the only victim and that the relationship lasted a few weeks.

Alfano said gender was never brought up in plea negotiations, referencing a Star-Ledger analysis of 97 cases which revealed men serve about 40 percent longer jail terms and go to prison more often than women in these cases.

The referenced analysis on the study of NJ teacher-student sex cases appears in this companion article, which provides this accoutning:

Critics have called the punishment for the former Essex County teacher of the year too lenient and reflective of a double standard that disproportionately penalizes men for similar relationships with students.

A Star-Ledger analysis of 97 cases in New Jersey over the past decade reveals significant disparities: Men are on average sent to jail in more cases and receive longer sentences. The data about 72 men and 25 women also shows:

• Male defendants went to prison in 54 percent of cases compared with 44 percent of cases for female defendants;

• Men averaged 2.4 years in prison compared with 1.6 years in prison for women, or 50 percent more time;

• Ninety-three of the 97 cases ended in plea deals;

• €…Forty-seven cases ended in noncustodial sentences, which typically involved pre-trial intervention programs or probation.

There are various reasons for the disparities in these cases, experts say, including the perception that girls and women need to be protected and are more vulnerable than their male counterparts, the availability of evidence, and the willingness of the student to participate in the prosecution.

"There’s a general societal disposition that does continue to treat women as the gentler sex, so typically the threshold for sending women to prison is higher," said Martin Horn, director of the New York State Sentencing Commission and a professor at the John Jay College of Criminal Justice.

All cases studied involve teachers, substitute teachers, coaches or school personnel who admitted to, or were convicted of, engaging in sexual relationships with students connected to their school.  "Juries and judges sort of make a consideration about how exploitative the crime is and how predatory the perpetrator is," Horn said.  "The system is supposed to make discriminations or make distinctions between individuals based on their perceived levels of culpability."

Most of the 97 cases analyzed were described in reports as consensual in nature (though not in the eyes of the law).  In New Jersey, the age of consent is 16, but a person in a supervisory role, such as a teacher, can be guilty of sexual offenses even if a student is 16 or 17. 

Because New Jersey’s Administrative Office of the Courts does not keep separate records on sex crimes committed by educators, The Star-Ledger used reports filed by the state Board of Examiners detailing teacher license suspensions. The suspension reports that described inappropriate student relationships were cross-checked with court records to obtain necessary information. This is not inclusive of every teacher-student case in the past 10 years.