Friday, July 22, 2016

"Possession, Child Pornography and Proportionality: Criminal Liability for Aggregate Harm Offenses"

The title of this post is the headline of this notable new article authored by Anthony Dillof and now available via SSRN. Here is the abstract:

Federal prosecution of individuals for possessing child pornography has risen steadily and dramatically over the last twenty years.  As the number of prosecutions has increased, so have the penalties.  Today a typical defendant charged with possessing child pornography can expect a seven-year prison sentence.  The article considers whether such sentences are just, fair and proportionate.  To answer this question, the article adopts a retributivist perspective on punishment. Retributivism, in turn, requires evaluating the wrongfulness of the conduct to be punished.

The article argues that while the possession of child pornography by a large group of persons in aggregate creates significant social harm — for example, a robust market for the production of child pornography — individual acts of possession, considered at the margin, have only a trivial impact.  This raises a serious problem of disproportionality in punishment for retributivists.  The article attempts to solve this problem by developing a theory of aggregate harm offenses.  According to this theory, even acts that have little marginal impact may constitute serious moral wrongs insofar as they violate the principle of rule consequentialism.  Rule consequentialism requires acting pursuant to a rule with desirable social consequences.  The article develops a rationale for rule consequentialism and explores how rule consequentialist norms may be used to justify and explain not only child pornography possession laws, but also a broad group of superficially unrelated criminal offenses.

July 22, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (17)

Thursday, July 21, 2016

Guest posting from Prof Mark Osler with advice to US Sentencing Commission on revising drug sentencing guidelines

Earlier this month, federal sentencing reform guru Mark Osler informed me that he put together some suggestions for the US Sentencing Commission in response to its request for public comment about proposed priorities.  In turn, I urged Mark to put together a guest-post for this space to ensure his insights can be seen outside the Beltway.  Here is what he sent my way:

Each year, the United States Sentencing Commission goes through a seasonal cycle; it starts and ends in May, when the Commission publishes proposed amendments (closing out one cycle) while setting out proposed priorities and inviting public comments to begin the next cycle. This year the public comment period lasts until July 25. You can get more complete information at www.ussc.gov.

The proposed priorities for this year are strikingly broad and encouraging for reform advocates.  They include some specific items, including “consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c),” but also some fascinating broader priorities.  The line that really caught my attention was this one: “the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.”

For those fascinated by federal sentencing, could there be a more enticing invitation?

I have submitted my own comment, which Doug has kindly linked here [down below].  It grows out of the response I got to a New York Times op-ed I wrote in 2014, suggesting that the weight of narcotics used in a conspiracy is a lousy proxy for the culpability of any one conspirator, and that it would be much better to instead simply enhance sentences for those individuals who make the most money from a narcotics operation.  After that piece ran, I was surprised at the group I heard from the most: sentencing judges.  A few pointed out (correctly) that they had proposed this decades ago, while others simply affirmed the problem with weight of narcotics as the central metric for a drug sentence.  And, of course, they had depressing stories to share of sentences they had been forced to give out (pre-Booker) to low-level players in large narcotics organizations.

Here is how my comment begins:

Currently, because of the structure and importance of the Drug Quantity Table at Guideline §2D1.1(c), the primary input of sentence computation in narcotics cases is the weight of the drugs at issue, either by an individual or conspiracy.  However, weight of narcotics is not a good proxy for culpability because it unfairly punishes the actions of too many low-level traffickers.  If a true kingpin imports 150 kilograms of cocaine into the country and pays a trucker $1,000 to haul it, both of them fall under Guideline §2D1.1(c)(2), which provides for a base offense level of 36. While guideline sections §3B1.1 & 1.2 (distinguishing roles in the offense) provide some level of differentiation, that differentiation will likely be at most a swing of six offense levels.

We all know that the one-off trucker is not nearly as culpable as the kingpin, but the guidelines don’t reflect that because weight-driven sentences are mandated by Guideline §2D1.1(c).  Sentencing judges have chafed at the resulting failure of proportionality ever since the beginning of the guideline era.

The false proxy of narcotics weight creates problems with proportionality and disparities because it too often obscures actual role and culpability.  Moreover, it imposes a complexity to the guidelines that is unnecessary.

After discussing the benefits and challenges of making such a change, I suggest three alternate ways to amend the guidelines and accomplish this goal.

Perhaps you agree with me, maybe you don’t, or it could be that you think there is a much cleaner route to simplicity, proportionality, and the reduction of disparities.  I urge you not only to read the rest of my comment, but to submit your own while the window is still open.

Download USSC comment 2016

July 21, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (7)

"An Overlooked Key to Reversing Mass Incarceration: Reforming the Law to Reduce Prosecutorial Power in Plea Bargaining"

The title of this post is the title of this paper recently posted to SSRN and authored by Cynthia Alkon. Here is the abstract:

The need to “do something” about mass incarceration is now widely recognized.  When President Obama announced plans to reform federal criminal legislation, he focused on the need to change how we handle non-violent drug offenders and parole violators.  Previously, former Attorney General Eric Holder announced policies to make federal prosecutors “smart on crime.”  These changes reflect, as President Obama noted, the increasing bipartisan consensus on the need for reform and the need to reduce our incarceration rates.  However, proposals about what to reform, such as President Obama’s, tend to focus on some parts of criminal sentencing and on prosecutorial behavior as stand-alone issues.  These reform suggestions do not consider the fact that ninety-four to ninety-seven percent of criminal cases are resolved through plea bargains and how the use of this process influences incarceration rates.  Prosecutors hold extraordinary power in the criminal justice system. They not only decide what cases get filed, they also decide what charges and enhancements are added, and whether there will be a plea offer.  The structure of our criminal justice system, at both the state and federal level, strengthens prosecutorial power and create a plea bargaining environment with extreme power imbalances.  Prosecutors use this power to put pressure on defendants to accept plea deals, which contribute to the high incarceration rates in the United States.  Therefore, any reform intended to make a meaningful reduction in incarceration rates should recognize the power that prosecutors hold and include reform aimed at changing this underlying structure.

As is well documented, the United States has high incarceration rates and imprisons more people than any nation in the world.  African American and Latino communities suffer even higher incarceration rates.  Our incarceration rates increased dramatically in the 1980s and into the 1990s.  Some commentators identify the “war on drugs” as a major contributor to increasing incarceration rates during this period.  Others suggest that the increase is due to a number of factors including changes in criminal codes that increased potential penalties for crimes across the board, not only for drug crimes.  One scholar, John F. Pfaff, concludes that the single biggest reason for increased incarceration rates since 1990 is not an increase in arrests, or harsher sentencing, or the drug war, but instead is an increase in the percentage of felony filings per arrest.  Pfaff concludes that the reason there are more filings is because prosecutors are filing a higher percentage of cases and therefore prosecutors are the predominate reason for mass incarceration.

This article will begin by briefly describing how plea bargaining works and the often coercive atmosphere of plea bargaining that contributes to mass incarceration.  This article will then discuss Pfaff’s conclusions, based on his empirical studies, that prosecutors are the key reason for mass incarceration.  Building on Pfaff’s conclusions on the key role prosecutors play in mass incarceration, this article will discuss how the current structure of both state and federal codes reinforce prosecutorial power, particularly in the plea bargaining process.  This article will then discuss two proposals for legislative reform that could decrease the coercive atmosphere of plea bargaining.  First, this article will recommend revising how crimes are defined, reducing the number of crimes that can be charged as both misdemeanors and felonies and reducing some felonies to misdemeanors. Second, this article will recommend reducing potential punishment ranges by eliminating mandatory minimums for most crimes and for enhancements.  Legislative change alone will not reverse mass incarceration, but targeted legislative reform could help to change the overly coercive atmosphere of plea bargaining.  This effort can help to change the prosecutorial culture that surrounds plea bargaining and contribute to reducing incarceration rates.

July 21, 2016 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Tuesday, July 19, 2016

Federal judge refuses to accept plea of LA County Sheriff Lee Baca for obstruction because of inadequacy of maximum sentence of six months in

As reported in this lengthy Los Angeles Times piece, headlined "Judge throws out ex-L.A. County Sheriff Lee Baca's plea deal, saying six months in prison not enough," a federal judge decided that a high-profile federal defendant had cut too sweet a plea deal to resolve charges of obstruction of justice.  Here are the interesting details concerning a rare (but not unprecedented) district court decision:

A federal judge on Monday threw out a plea agreement that would have given former Los Angeles County Sheriff Lee Baca a maximum of six months in prison, saying the sentence was too lenient considering Baca’s role in obstructing an FBI investigation into the county jails. Addressing a downtown courtroom packed with Baca’s supporters, U.S. District Court Judge Percy Anderson said the deal “would trivialize the seriousness of the offenses … the need for a just punishment [and] the need to deter others.”

Baca, 74, had pleaded guilty in February to a single charge of lying to federal investigators. But the former sheriff’s involvement in trying to derail the investigation reached further than that, Anderson said. At stake was what the investigators were trying to expose, Anderson said: an “us-versus-them” culture in which deputies covered up for one another and responded to inmates with enough violence to send them to the hospital.

Six months in prison for the man who ran the Sheriff’s Department “would not address the gross abuse of the public’s trust … including the need to restore the public’s trust in law enforcement and the criminal justice system,” Anderson said.

The judge said he would allow Baca to withdraw his guilty plea, setting a new hearing date for Aug. 1. The maximum sentence for the false statement charge is five years -- the same amount of time that Baca’s former No. 2, Paul Tanaka, received last month after going to trial in a related obstruction-of-justice case. Seven lower-ranking sheriff’s officials who have been convicted and sentenced in the obstruction case received a year and a half to more than three years in prison.

Baca’s plea agreement had called for a sentence ranging from probation to six months in prison. Prosecutors have said they agreed to the deal in part because of Baca’s willingness to plead guilty. Baca’s attorney, Michael Zweiback, argued that the former sheriff should not serve any prison time because he is in the early stages of Alzheimer’s disease.

Baca must now choose among several unappealing options. He could go ahead with the sentencing and accept whatever punishment Anderson has in mind. He could withdraw his guilty plea and go to trial, taking his chances with whatever charges the government might decide to bring. He could negotiate a new deal with federal prosecutors for a longer sentence that the judge would find more acceptable.

After Monday’s hearing, Zweiback said he was disappointed with the judge’s decision but hoped to resume talks with prosecutors. He said that if he cannot reach an agreement that includes a specific sentence, rather than an open-ended guilty plea, he will not leave his client’s fate in Anderson's hands. “At that point, we might as well take our chances at trial,” Zweiback said.

Baca’s Alzheimer’s could be a factor if the case heads to trial and his ability to understand the proceedings deteriorates. The trial could be put on hold if he is declared mentally incompetent. “If the government believes it’s two years in ... getting to trial and sentencing him, that could leave Mr. Baca in very bad shape,” Zweiback said....

Legal experts said Anderson's move was unusual but not unexpected, considering his law-and-order reputation and comments he has made during sentencing in the related cases. “We already knew the defendant was facing a federal judge who believed these kinds of acts were as serious as they come,” said Miriam Krinsky, a former federal prosecutor who was the executive director of a county commission that investigated brutality by jail deputies and who served as a top aide to Baca’s successor, Jim McDonnell, during his first year in office....

Laurie Levenson, a Loyola Law School professor and former federal prosecutor, said Anderson was not likely to be “swayed by sympathy or the emotional aspects of the case.” She said he was likely to be especially unforgiving of law enforcement officials who did not fulfill their duties. “He views this type of abuse of trust more seriously, notwithstanding Baca’s health concerns,” Levenson said.

Federal sentencing law provides that people who are higher up in an organization -- mob bosses, for example — are more culpable than lower-level members, said Joseph Akrotirianakis, another former federal prosecutor now in private practice. “Today’s events are not entirely surprising in light of the sentence that Mr. Tanaka received,” Akrotirianakis said. “That was not a fact known to the government at the time that Baca entered into his plea.”...

Brian Moriguchi, head of the union that represents Sheriff’s Department supervisors, said Baca is responsible for the actions of his subordinates, especially Tanaka, and should receive more than six months considering the sentences the others will serve.

Many sheriff's deputies have been closely watching the criminal prosecutions to see if the punishments for former bosses would approach those of lower-ranking employees following their orders. “It’s not only widespread in the department, it’s widespread in society — the feeling that those who have power seem to be exempt from the same rules as everyone else,” Moriguchi said.

July 19, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, July 14, 2016

First trader federally convicted for "spoofing" gets significant (below-guideline) prison term

As reported in this local article, headlined "Trader Michael Coscia 1st in nation to be sentenced under 'anti-spoofing' law," a notable new type of federal white-collar offender got a notable old-school type of punishment yesterday in federal court in Chicago. Here are some details:

In the outcome of a closely watched trial that could set precedent, convicted futures trader Michael Coscia was sentenced in federal court Wednesday to three years in prison and two years of supervised release for spoofing and commodities fraud.

Coscia, 54, of Rumson, N.J., was the first defendant in the country to stand trial under new anti-spoofing laws included in the 2010 Dodd-Frank Act.  In November, he was found guilty of six counts of spoofing — the use of computer algorithms to rig markets in fractions of a second — and six counts of commodities fraud.

Prosecutors had recommended five to seven years in prison, while the defense had sought probation.  Ultimately, U.S. District Judge Harry Leinenweber settled in the middle, citing Coscia's age and health, as well as the ambiguous amount of financial loss incurred by the victims.

"This is a very serious crime and it has serious consequences. ... (Coscia) has helped a lot of people over the years, not only family and friends, but also fellow traders.  But he also engaged in spoofing and had no financial need to do so," Leinenweber said shortly before announcing the sentence.

Federal prosecutors were pleased with the outcome. "There was and has been this sort of suggestion throughout the course of this prosecution that this criminal case is somehow murky or unclear because of technology, because of the use of algorithms. Well, guess what?  A lie is a lie.  Deceit is deceit. ... The defendant cheated faceless victims out of money through deceit over the internet.  Today's result and sentence, I think, is a reflection of that," U.S. Attorney Zachary Fardon said.

Assistant U.S. Attorney Sunil Harjani added that the sentence of imprisonment would send a message to traders in Chicago and throughout the U.S.

Coscia made about $1.4 million in only about two months by victimizing traders including those at Citadel, the Chicago financial services firm formed by billionaire Ken Griffin, when he manipulated the prices of futures contracts on the Chicago Mercantile Exchange, prosecutors have said.

Upon leaving the courtroom, Coscia declined to comment.  He smiled as he hugged friends and family who had come to show support.  During the hearing, he gave a brief statement asking for leniency and saying that he takes responsibility for his actions.

Stephen Senderowitz, Coscia's attorney, said he will file an appeal.  During the hearing, Senderowitz emphasized that it's not clear how much money any individual trader lost because of Coscia's actions.  That will be among the issues argued further during the appeal, during which the defense will also challenge the constitutionality of the spoofing law, he said afterward....

The Coscia case is "just the tip of the iceberg" in terms of the government's increasingly active role in such prosecutions, said Renato Mariotti, lead prosecutor on the case before recently joining a private practice.  "For years, many people scoffed at the notion that the government could explain high-frequency trading strategies to judges and juries. No one is laughing anymore," Mariotti said in a statement after the sentencing.

Coscia commissioned the design of computer programs, known as algorithms, to manipulate prices in the markets of various commodities, including gold, soybean meal, soybean oil, high-grade copper, Euro FX and Pounds FX currency futures, prosecutors said.

Among Coscia's family, there was some feeling that the sentencing could have gone worse. During the hearing, Anthony Coscia, Michael Coscia's uncle and a counselor at a Catholic high school in Brooklyn, N.Y., quoted passages from Shakespeare and the Bible while speaking on behalf of his nephew's character.... "The judge seemed to show some compassion," the elder Coscia said as he left the courtroom.

July 14, 2016 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (0)

Tuesday, July 12, 2016

"Pokémon Go Craze Sparks Worries About Sex Offenders, Cybercriminals"

MaxresdefaultMy students and regular readers know I am eager to assert that any and every aspect of modern law and life has a sentencing/crime and punishment angle. In service to that claim, I could not resist highlighting this new local NYC article which shares the headline of this post and demonstrates that the latest gaming craze in not immune from criminal justice concerns. Here are the (serious?) particulars:

The Pokémon Go app has been all the rage in recent days, but new concerns have mounted about criminals abusing the game.  As CBS2’s Jennifer McLogan reported, there are worries that sex offenders might use the app to lure children, and cybercriminals might steal people’s information.

Sulma Rivas is part of a Pokémon Go scavenger hunt adventure craze. So are her three children. Rivas keeps a watchful eye. “I don’t want to do it when my mom’s not around, because I could get hurt,” said Mylie Rivas, 10.

Pokémon Go is exploding in popularity, and Babylon town officials have been monitoring hundreds of people of all ages circling the lake in Argyle Park -- with their heads down and their smartphones in hand.  When asked if he was playing unsupervised, Ethan Fortaleza, 12, smiled and said, “Maybe.” Ethan said his parents dropped him off in a safe area. But county officials are worried about the luring component of the game.

With 38,000 registered sex offenders in New York state, police fear that it might be easy for someone to fake a Pokémon Go ID and stalk a child player. “The people who are the quickest to adapt to new trends in social media technology are criminals and predators,” said Suffolk County Executive Steve Bellone.  Bellone wants Pokémon developer Niantic to install e-stop technology, making it tougher for predators to sign on and demanding more checks and balances.

After downloading the app, players are asked to sign up with their Google accounts, using existing credentials to ensure the process is fast and simple. But that can put at risk users’ emails, cameras, photos, and storage.  That pool of data could be a boon for cybercriminals.

“I haven’t heard anything about that. That would be unfortunate,” said Samara Katini, 21. “I probably wouldn’t play the game if that was a real problem.”...

Ninatic said it is working closely with authorities to keep all players safe. The company said it has no plans to share the data it collects with third parties.

July 12, 2016 in Offense Characteristics, Web/Tech | Permalink | Comments (14)

Federal prosecutors want former Gov Blagojevich to get same 14-year prison term at resentencing despite a few vacated convictions

As reported in this local article, headlined "Feds: Give Blago 14 years all over again," federal prosecutors do not believe that the partial success that former Illinois governor had when appealing his corruption convictions should produce any benefit at his upcoming resentencing. Here are the details from resentencing memos filed this week:

Federal prosecutors want former Gov. Rod Blagojevich sentenced to 14 years in prison all over again. But Blagojevich hopes the federal judge who originally hammered him with that 14-year sentence will reconsider and give him as little as five years behind bars.

Blagojevich has already been locked up for four years in a Colorado prison. Next month, his battle to overturn his conviction could land him back in front of U.S. District Judge James Zagel for re-sentencing, after years of cries that Blagojevich was dealt too severe a punishment. The feds stood by the sentence in a sentencing memo filed just before midnight Monday, though.

“Corruption spreads unless it is deterred,” Assistant U.S. Attorney Debra Riggs Bonamici wrote in the memo. “Public officials who gain from corrupt deals are incentivized to do more, and successes inspire other public officials to see if they can do it too.”

Meanwhile, Blagojevich’s lawyers made an appeal for mercy and opened a window into Blagojevich’s four years behind bars. They said the former governor worked in the kitchen warehouse, taught Civil War and World War II history and studied music as a way to connect to his daughter Annie, who studied classical piano. Lawyer Leonard Goodman wrote that Blagojevich formed a band with another inmate called “The Jailhouse Rockers” that broke up when the other inmate was released.

“Blagojevich’s number one priority during his four plus years of incarceration has been to repair and mitigate the harm that his actions have done to his wife and children,” Goodman wrote. “Blagojevich speaks to his family nearly every evening.”

Some older related posts on the Blagojevich case:

July 12, 2016 in Celebrity sentencings, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (1)

Monday, July 11, 2016

PBS widely premiering sex offender documentary "Prevert Park"

Pervert-ParkposterAs detailed via this PBS page, tonight is the official premiere for a notable film about a notable group of criminal offenders. The film is titled "Pervert Park," and here are excepts from the PBS description of this hour-long film:

Pervert Park by Scandinavian filmmakers Frida Barkfors and Lasse Barkfors takes place at Florida Justice Transitions in St. Petersburg, Fla., founded in 1996 by Nancy Morais, the mother of a sex offender who had difficulty finding a place to live after his conviction.  It looks like your average trailer park, but this is the place 120 residents call home.  Their lives are heavily regulated: Offenders are forbidden by law from living within 1,000 feet of any place children congregate. The residents are required to check in with the Florida State Police twice a year, are monitored by satellite surveillance and are listed in a sex-offender registry easily available online as a phone app. But the park also provides space for small businesses, including a hair salon. All of the program’s staff are convicted sex offenders as well.

There are currently more than 800,000 convicted sex offenders in the United States, and the country has seen an estimated 15% increase in registered sex offenders over the past five years.  But the film offers a mindset-challenging look at this deeply stigmatized category of criminals.  According to Florida Justice Transitions president and CEO Jim Broderick, the park’s residents want to “become productive members of society and want to give back.”

The documentary does not stint on candid discussions of the offenses committed by the residents, who say they feel free to open up in-group sessions led by therapist Don Sweeney. Stories vary from that of Jamie, a 22-year-old man caught in an Internet sting after expressing interest in having sex with a minor — which Sweeney characterizes as a common case of entrapment — to far more disturbing and unforgivable crimes.

A resident named Patrick confesses to an early infatuation with pornography and a life marked by failed personal relationships. He raped a young Mexican girl, which he characterized as an act of revenge “against all women.” Several residents tell of being sexually abused as children.  Will says he was “fondled by a babysitter when I was 6 years old.”  As an adult, he exposed himself to a young girl and spent several years in jail.

A harrowing story is told by Tracy, who says her father began having sex with her when she was a child. She was later abused by her mother’s boyfriends, which “caused my body to want those same feelings.”  She eventually had sex with cousins and underwent an abortion at 11 years old; she would later have sex with her own son.  According to therapist Sweeney, Tracy was “groomed” for abuse by her father, who insisted sex was a natural way to show affection. She in turn groomed her son by asking his “permission.” He continued the cycle of abuse, later sexually assaulting a 3-year-old boy....

Pervert Park raises significant questions.  Should America give these criminals a second chance?  And can their experiences help in devising a successful strategy for reducing the growing number of sex crimes?

“The typical reaction of normal citizens is, ‘We don’t care. They committed a crime and we don’t care if they die,'” says Sweeney.  Yet one offender says it is time not only for greater public understanding of sexual crimes, but for the offenders to take the lead in stating their case.  “You have to look at the bigger picture,” he says. “Nobody will stand up and fight for us, and that’s why we’ve got to do something about it now.”

“These are the crimes that are often too painful or uncomfortable to discuss,” say filmmakers Frida and Lasse Barkfors. “These are the people no one wants to live amongst.  These are the neighbors we wish away and, through sex offender laws and labeling, literally and figuratively move to the outskirts of our towns and our lives.  And yet there they are, 1,000 feet away from our schools and our parks and playgrounds and churches.

“Although many of their crimes are unspeakable, what do we, as a community, gain from our willful silence?  If we hope to curb the cycle and culture of sexual violence, is there value in exploring the lives of sex offenders, regardless of how heartbreaking and difficult it might be?”

July 11, 2016 in Collateral consequences, Offender Characteristics, Offense Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (45)

Thursday, July 07, 2016

"Can Obama Pardon Millions of Immigrants?"

The question in the title of this post is the headline of this notable New York Times commentary authored by Peter Markowitz. Here are excerpts:

When the history of President Obama’s legacy on immigration is written, he will not go down as the president who boldly acted to protect millions of families from the brutality of our nation’s unforgiving immigration laws. The Supreme Court made sure of that last month, when it deadlocked on the legality of his program to defer the deportation of parents of American citizens and residents. Instead, he will be judged on what he actually did: deport more immigrants than any other president in American history, earning him the moniker “deporter in chief.”

However, President Obama can still act to bring humanity and justice to an immigration system notoriously lacking in both. He can do so by using the power the Constitution grants him — and only him — to pardon individuals for “offenses against the United States.”

The debate over the deportation deferral program has been framed as a question of the division of powers. Both sides agree that Congress is the only entity that gets to define offenses against the United States.... There is one area, however, where the president’s unilateral ability to forgo punishment is uncontested and supported by over a hundred years of Supreme Court precedent: the pardon power. It has been consistently interpreted to include the power to grant broad amnesties from prosecution to large groups when the president deems it in the public interest....

It’s a common assumption that pardons can be used only for criminal offenses, and it’s true that they have not been used before for civil immigration violations. However, the Constitution extends the power to all “offenses against the United States,” which can be interpreted more broadly than just criminal offenses.

A pardon could not achieve everything the deferred deportation program aspired to — notably, it could not deliver work permits. However, it has a certain operational elegance to it that would avoid many of the political battles surrounding the deferral program....

President Obama has plenty of time left to issue such a pardon. There is solid historical and legal precedent for him to do so. And although it would probably bring about legal challenges, opponents could not use the legal system to simply run out the clock, as they have with his deferred deportation program. A deferred deportation program could be undone by a President Trump. Unconditional pardons, in contrast, are irrevocable.

Finally, some would surely argue that a pardon protecting a large category of immigrants from deportation would, just like the deportation deferral program, effectively amount to a repeal of laws enacted by Congress. However, pardons do nothing to alter the law. They protect certain past offenders from punishment and prosecution, but leave the law unchanged as applied to any future violators.

President Obama has deported around 2.5 million people. That is about the same number as were deported in the entire 20th century. His apparent strategy was to demonstrate his bona fides on enforcement in order to persuade recalcitrant Republicans to work with him on immigration reform. It didn’t work. It turns out that you don’t convince people to be more humane on immigration by deporting immigrants hand over fist. We are left with a brutal legacy of millions of families torn apart, many simply for doing what they needed to do to protect and feed their children. President Obama will not be judged on his intentions or his attempts on immigration, but rather on his real impact. This is his last chance to establish a legacy of pragmatic compassion.

July 7, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Does Massachusetts have a problem with under-punishment of convicted rapists?

The question in the title of this post is prompted by this new Boston Globe article headlined "Dozens of convicted rapists in Mass. have avoided prison. " Here are excerpts:

More than three dozen people convicted of rape in Massachusetts in recent years have received no prison time for their crimes, state data show, including several who had lengthy criminal histories.  A Globe review of Massachusetts court system statistics on 305 rape convictions in the 12-year period that concluded at the end of June 2013 found that in 42 cases, or about 14 percent of the time, defendants received no prison time.

They included two defendants who had a record of either “repetitive” or “violent” convictions, and three had a “serious record.” Seven had a “moderate record” of convictions, while 30 had either never been convicted of a crime or had been convicted of what the court system considered minor offenses. The figures come from annual reports by the Executive Office of the Trial Court.

“If you look at any other violent, serious felony, this would never happen,” said Colby Bruno, an attorney at the Victim Rights Law Center in Boston.  Rapists should not be given leniency when it comes to sentencing, Bruno said.

In Massachusetts, state sentencing guidelines call for anyone convicted of certain serious crimes, including rape, to be sentenced to some period of incarceration. For rape, the minimum recommended sentence is five years. But judges aren’t required to follow the guidelines.  The Massachusetts data reviewed by the Globe showed that convicted rapists who were incarcerated were typically sentenced to between five and 10 years in prison, and that defendants with more troubling criminal histories usually received lengthier sentences....

National statistics on criminal sentencing are limited. But a federal study on cases that began in 2009 in large urban US counties found 11 percent of convicted rapists were not sentenced to jail or prison time. For those who were incarcerated, the median prison sentence length was 10 years....

The Globe’s review of the data focused on convictions under Massachusetts’ definition of rape, which is described as nonconsensual sex with someone by using force or the threat of bodily injury. The review did not look at other classifications of the crime, such as aggravated, statutory, or child rape. The reports did not detail specific cases. The state trial court office, which is exempt from public record disclosure laws, declined to release further details. The most recent year for which data was available was fiscal year 2013.

Defense attorneys, as well as former judges and prosecutors, offered several potential reasons why someone convicted of rape might not get prison time. One of the most likely scenarios, experts said, would be a plea bargain.  A prosecutor with a weak case could offer, in exchange for a guilty plea, to recommend a lesser sentence such as probation to the judge.

Getting a conviction and at least some punishment for the defendant is sometimes viewed as a better option than risking losing the case at trial.  It also removes the possible need to bring a traumatized victim to testify. “The ultimate goal is to decrease crime and hold people responsible, and sometimes that can come in different forms and packages,” said law professor Mary G. Leary, a former prosecutor whose focus included sexual assault cases.

In another possible scenario, a victim might ask the judge not to incarcerate the assailant. “Sometimes, when you have parties who know each other, they want the person convicted, but they don’t want them to be incarcerated,” said Christine Cole, executive director of the Crime & Justice Institute, part of the Boston-based nonprofit Community Resources for Justice.

In addition, judges carefully weigh many factors when making sentencing decisions. Factors can include the specific facts of the crime, and whether the defendant cooperated with prosecutors, showed remorse, has a criminal past, and is likely to reoffend, specialists said. The details of each case are critical, said Nancy Gertner, a former federal judge in Boston and a former defense attorney. For example, Gertner said, she routinely encountered cases where defendants, particularly those with drug addiction problems, “wound up with these very long rap sheets, but of relatively minor offenses.”

Some observers, including Cole and Gertner, said they believe judges sentence appropriately in the vast majority of cases. Martin Rosenthal, a longtime criminal defense attorney and Massachusetts Sentencing Commission member, agreed, saying that while “it’s certainly unusual for someone to be convicted of rape and not get incarcerated . . . I don’t think that rape is being diminished in any way” by judges or the justice system.  “The idea that we’re being soft on rape as a society is just not true,” he said.

July 7, 2016 in Offense Characteristics, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1)

Wednesday, July 06, 2016

Split Eighth Circuit panel affirms three-month sentence for Iowa egg executives whose company caused salmonella outbreak

As reported in this AP piece, the Eighth Circuit today rejected an array of challenges to upheld short jail sentences for two egg industry executives who pleaded guilty to misdemeanor corporate crimes. Here is more about the case and the ruling:

In a 2-1 decision, the 8th U.S. Circuit Court of Appeals upheld three-month jail sentences issued last year to 82-year-old Austin "Jack" DeCoster and his son Peter DeCoster, 53.

The DeCosters were aware of unsanitary conditions at their sprawling Iowa egg farms but failed to improve them before the outbreak, which sickened up to 56,000 people and left some with permanent injuries, Judge Diana Murphy wrote. "We conclude that the record here shows that the DeCosters are liable for negligently failing to prevent the salmonella outbreak," Murphy wrote, joined by Judge Raymond Gruender.

The case, a rare prosecution against those responsible for an outbreak of foodborne illness, was closely watched by advocates for consumer safety and food and drug manufacturers. The Justice Department praised the ruling, saying the DeCosters disregarded basic food safety standards for years and deserved jail time....

At issue was whether corporate executives could face imprisonment for violating the federal Food, Drug, and Cosmetic Act, which allows "responsible corporate agents" to be held criminally liable even if they were not aware of the wrongdoing. The DeCosters, who owned and operated Quality Egg LLC, had pleaded guilty to violating the law by introducing adulterated eggs into interstate commerce. They said they did not know the eggs were contaminated but acknowledged they were in a position to stop the problems had they known.

U.S. District Judge Mark Bennett ordered the jail time in April 2015, saying they knew or should have known about the risks posed by the presence of salmonella in and around millions of egg-laying hens. But he allowed the DeCosters to stay free while they appealed the sentences, which they argued were unconstitutional and unreasonably harsh.

Business groups, including the U.S. Chamber of Commerce and the National Association of Manufacturers, filed friend-of-the-court briefs backing the DeCosters' appeal. They argued that it would be unfair to send corporate executives to prison for violations that they were unaware of or that were committed by subordinates.

Murphy rejected those arguments, saying Congress did not require executives to have known about the violations to be subject to the food safety law's criminal penalties. She said the jail terms were relatively short, within federal guidelines and "not grossly disproportionate to the gravity of their misdemeanor offenses." Gruender added in a concurring opinion that the DeCosters were not being punished for the acts of others, saying their own failure to take steps to prevent the outbreak was to blame.

Dissenting Judge C. Arlen Beam said prosecutors failed to show that the DeCosters had criminal intent, and therefore "there is no precedent" for sending them to jail. He said they were not aware the products were tainted with salmonella and that they immediately recalled hundreds of millions of eggs once the outbreak was confirmed "at great expense."...

Quality Egg paid a $6.8 million fine after pleading guilty to felony charges of shipping eggs with false processing and expiration dates and bribing a U.S. Department of Agriculture inspector to approve sales of poor-quality eggs.

The full ruling in US v. DeCoster, No. 15-1890 (8th Cir. July 6, 2016), is available at this link.

July 6, 2016 in Offense Characteristics, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1)

Tuesday, July 05, 2016

Anyone eager to discuss what likely will be the highest-profile "declination" in federal criminal justice history?

James-comey-fbi-director_29603_ver1.0_1280_720Lots of smart people recognize and discuss in lots of ways the unique and uniquely important role that prosecutors play in the operation of modern US criminal justice systems, and one theme of a lot of recent commentary and analysis is how little information we generally have about how prosecutors make decisions about who and how to prosecute (and who not to prosecute) for various alleged wrongdoing.  In particular, it is sometimes said that too often we fail to even know about a decision and the decision-making process of a prosecutor to decline to bring charges after a significant criminal justice investigation.

I provide this context for anyone eager to discuss and debate this high-profile news as reported in this New York Times article headlined "F.B.I. Recommends No Charges Against Hillary Clinton for Use of Personal Email."  As source materials for anyone eager to discuss this recommended declination, here is the full text of today's statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System."  It includes these key passages:

Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information....

While not the focus of our investigation, we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government....

In our system, the prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped collect. Although we don’t normally make public our recommendations to the prosecutors, we frequently make recommendations and engage in productive conversations with prosecutors about what resolution may be appropriate, given the evidence. In this case, given the importance of the matter, I think unusual transparency is in order.

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.

As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.

UPDATE:  The folks at Crime & Copnsequences already have this quartet of posts up discussing Comey's findings and statement: 

July 5, 2016 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (26)

Examining with decades of hindsight a (not-so-violent) violent crime spree resulting in LWOP sentences

The front-page of today's New York Times has this interesting piece examining one notable defendant serving multiple LWOP sentences for violent crimes that do not quite seem to justify the extreme sentence decades later.  The piece is headlined "One Robber’s 3 Life Sentences: ’90s Legacy Fills Prisons Today," and it gets started this way:

Lenny Singleton is the first to admit that he deserved an extended stay behind bars.  To fuel his crack habit back in 1995, he walked into 13 stores over eight days and either distracted a clerk or pretended to have a concealed gun before stealing from the cash register.  One time, he was armed with a knife with a six-inch blade that he had brought from his kitchen.

Mr. Singleton, 28 at the time, was charged with robbery and accepted a plea deal, fully expecting to receive a long jail sentence.  But a confluence of factors worked against him, including the particularly hard-nosed judge who sentenced him and the zero-tolerance ethos of the time against users of crack cocaine.  His sentence was very long: two life sentences. And another 100 years. And no possibility for parole.

There is a growing consensus that the criminal justice system has incarcerated too many Americans for too many years, with liberals and conservatives alike denouncing the economic and social costs of holding 2.2 million people in the nation’s prisons and jails.  And Congress is currently debating a criminal justice bill that, among other provisions, would reduce mandatory minimum sentences for nonviolent offenders.

But a divide has opened within the reform movement over how to address prisoners who have been convicted of violent crimes, including people like Mr. Singleton, who threatened shop owners but did not harm anyone.  Groups like the American Civil Liberties Union favor a swift 50 percent reduction in prison populations, while conservative prison reform organizations like Right on Crime prioritize the release of nonviolent offenders and worry that releasing others could backfire and reduce public support.

Nonviolent drug offenders make up only about 17 percent of all state prison inmates around the nation, while violent offenders make up more than 50 percent, according to federal data.

As the prison population has increased sharply over the past 30 years, so too has the number of those sentenced to life.  Mr. Singleton is among nearly 160,000 prisoners serving life sentences — roughly the population of Eugene, Ore. The number of such inmates has more than quadrupled since 1984, and now about one in nine prison inmates is serving a life term, federal data shows.

“People are celebrating the stabilization of the prison population in recent years, but the scale of mass incarceration is so substantial that meaningful reduction is not going to happen by tinkering around the edges,” said Marc Mauer, the executive director of the Sentencing Project, a Washington-based nonprofit that advocates changes in sentencing policy.

July 5, 2016 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Saturday, July 02, 2016

"Couriers Not Kingpins: Toward a More Just Federal Sentencing Regime for Defendants Who Deliver Drugs"

The title of this post is the title of this new paper authored by Kevin Lerman and recently posted to SSRN.  Here is the abstract:

After decades of tweaking and modification, the federal sentencing guidelines have yet to meaningfully separate high-level drug traffickers from their unsophisticated underlings. The Mitigating Role Guideline — designed in part to alleviate the effects of quantity-based drug sentencing — fails to reach many of the people prosecuted for their work at the lowest rungs of drug-trafficking hierarchies.  This includes couriers and mules who transport drugs for small amounts of money.

Quantity-based sentencing guidelines qualify couriers and mules for extremely high sentences, which they must work down from by proving they deserve one or more sentencing reductions.  The Mitigating Role Guideline requires defendants to prove their role makes them “substantially less culpable” than similarly situated drug traffickers.  This mushy standard — along with a host of other obstacles — results in denial of sentencing reductions.  Mitigating Role is all-the-more treacherous because it triggers further sentencing reduction that frequently apply to couriers and mules.  These reductions are: (1) Role Cap, which counteracts quantity-based calculations that the Sentencing Commission has determined overstate low-level drug defendants’ culpability; and (2) the Methamphetamine Importation Enhancement, which extends sentences unless mitigating role is granted.

This Paper argues the Mitigating Role Guideline must be amended to more consistently account for low-level defendants.  An amended guideline should assess defendants’ functional roles rather than engage in an obscure comparison with so-called average participants.  It should expressly disavow “indispensability” analysis, which incorrectly equates basic but-for causation with culpability.  And the guideline should expressly distinguish between the analysis required for Mitigating Role and the analysis for Aberrant Behavior. Conflation of the two guidelines frequently leads to denials of sentencing reductions.  Finally, given past failures, guidelines depending on Mitigating Role should no longer depend on it. Rather, they should be "de-coupled," so they take effect for any defendant’s role that is not aggravating.  Because quantity-based guidelines are perilously high for all but a tiny fraction of violent drug trafficking defendants, these reductions for Role Cap and subtraction of the Methamphetamine Enhancement should be applied presumptively to limit the impact of overly harsh role determinations.

July 2, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (0)

Thursday, June 30, 2016

Highlighting what brought Justice Thomas and Sotomayor together in Voisine

Noah Feldman has this effective Bloomberg commentary about the recent SCOTUS Voisine ruling headlined "When Opposites Converge Over Domestic Violence." Here are excerpts:

Some two-thirds of the states define assault in a way that includes reckless conduct.  The court was therefore under substantial practical pressure to hold that reckless misdemeanor domestic assaults count for purposes of the federal gun law.  If it had not, the federal law would have had to be changed or else it wouldn't have applied in those states....

Thomas’s vote [in dissent] can be explained partly on the basis that he doesn’t want to infringe gun ownership.  He added a final section to his dissent suggesting as much.  But Sotomayor, who didn’t join that section of Thomas’s dissent, can’t have been actuated by this motive.  So why did the court’s most liberal member join its most conservative?

What Thomas and Sotomayor share in common -- along with being the court’s two members of racial minorities -- is a long-term concern with the overreach of federal criminal law.  Thomas’s worry has to do with federalism and the encroachment of the federal government into state law matters.  Sotomayor’s concern is more with the status of the individual defendant, who may be subject to long federal sentences.

Yet it’s noteworthy that both right and left saw the court’s decision as potentially troubling.  Neither Thomas nor Sotomayor is an apologist for domestic violence.  But both saw the court as extending the reach of federal criminal law unnecessarily under the shadow of concern about the dangers of domestic violence.  In their own way, each tries to be a conscience on a court that often acts pragmatically.  This time, the two consciences converged.

Prior related post:

June 30, 2016 in Gun policy and sentencing, Offense Characteristics, Who Sentences? | Permalink | Comments (1)

Wednesday, June 29, 2016

US Sentencing Commission publishes "Overview of Federal Criminal Cases – Fiscal Year 2015"

On Monday, the US Sentencing Commission released this new data report, excitingly titled "Overview of Federal Criminal Cases – Fiscal Year 2015."   This USSC webpage provides this summary of the report's contents and findings:

The United States Sentencing Commission received information on 71,184 federal criminal cases in which the offender was sentenced in fiscal year 2015. Among these cases, 71,003 involved an individual offender and 181 involved a corporation or other “organizational” offender. The Commission also received information on 24,743 cases in which the court resentenced the offender or modified the sentence that had been previously imposed. This publication provides an overview of those cases [and includes these key findings]:

  • The 71,003 individual original cases reported to the Commission in fiscal year 2015 represent a decrease of 4,833 (6.4%) cases from fiscal year 2014.

  • Drug cases continued to be the most common type of federal case.  The 22,631 drug cases reported to the Commission in fiscal year 2015 accounted for 31.8 percent of all cases report to the Commission.

  • Immigration cases were the next most common, accounting for 29.3 percent of the total federal caseload.  In fiscal year 2011, immigration cases were the most common federal crime; however, since that year the number of these cases has steadily declined.

  • In fiscal year 2015, an imprisonment sentence was imposed on 87.3 percent of all offenders. Another 7.2 percent of offenders received a sentence of probation (i.e., where no type of confinement was imposed), a rate that has decreased over time from a high of 15.3 percent in 1990.

  • Almost three-quarters of offenders sentenced in fiscal year 2015 received a sentence of less than five years.

  • Methamphetamine offenses were the most common drug trafficking offenses and were the most severely punished drug crime in fiscal year 2015.

  • The proportion of drug offenders convicted of an offense carrying a mandatory minimum penalty was the lowest it has been since 1993.

June 29, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (0)

Monday, June 27, 2016

Per the Chief, SCOTUS unanimously vacates former Gov's conviction while adopting "more bounded interpretation" of corruption statute

Wrapping up yet another remarkable Term with a notable bit of unanimity, the Supreme Court's final opinion for this SCOTUS season was a win for a high-profile federal defendant McDonnell v. United States, No. 15-474 (S. Ct. June 27, 2016) (available here). Chief Justice Roberts authored the opinion for the unanimous Court, and here are some key excerpts from the start and center of the ruling:

In 2014, the Federal Government indicted former Virginia Governor Robert McDonnell and his wife, Maureen McDonnell, on bribery charges.  The charges related to the acceptance by the McDonnells of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams, while Governor McDonnell was in office.  Williams was the chief executive officer of Star Scientific, a Virginia-based company that had developed a nutritional supplement made from anatabine, a compound found in tobacco.  Star Scientific hoped that Virginia’s public universities would perform research studies on anatabine, and Williams wanted Governor McDonnell’s assistance in obtaining those studies.

To convict the McDonnells of bribery, the Government was required to show that Governor McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts.  The parties did not agree, however, on what counts as an “official act.”  The Government alleged in the indictment, and maintains on appeal, that Governor McDonnell committed at least five “official acts.”  Those acts included “arranging meetings” for Williams with other Virginia officials to discuss Star Scientific’s product, “hosting” events for Star Scientific at the Governor’s Mansion, and “contacting other government officials” concerning studies of anatabine.  Supp. App. 47–48.  The Government also argued more broadly that these activities constituted “official action” because they related to Virginia business development, a priority of Governor McDonnell’s administration.   Governor McDonnell contends that merely setting up a meeting, hosting an event, or contacting an official — without more — does not count as an “official act.”

At trial, the District Court instructed the jury according to the Government’s broad understanding of what constitutes an “official act,” and the jury convicted both Governor and Mrs. McDonnell on the bribery charges.  The Fourth Circuit affirmed Governor McDonnell’s conviction, and we granted review to clarify the meaning of “official act.”...

Taking into account the text of the statute, the precedent of this Court, and the constitutional concerns raised by Governor McDonnell, we reject the Government’s reading of §201(a)(3) and adopt a more bounded interpretation of “official act.”  Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an “official act.”...

It is apparent from Sun-Diamond that hosting an event, meeting with other officials, or speaking with interested parties is not, standing alone, a “decision or action” within the meaning of §201(a)(3), even if the event, meeting, or speech is related to a pending question or matter.  Instead, something more is required: §201(a)(3) specifies that the public official must make a decision or take an action on that question or matter, or agree to do so....

In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so) — without more — does not fit that definition of “official act.”

June 27, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

By vote of 6-2, SCOTUS upholds broad application of federal prohibition on firearm possession by certain misdemeanants

Confirming that the Second Amendment has far more bark than bite when push comes to shove (puns intended), the Supreme Court this morning rejected a narrow interpretation of the federal criminal statute that forever prohibits any firearm possession by any persons who are convicted of certain misdemeanors. The opinion for the Court authored by Justice Kagan in Voisine v. US, 14-10154 (S. Ct. June 27, 2016) (available here), gets started this way:

Federal law prohibits any person convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. 18 U.S.C. §922(g)(9).  That phrase is defined to include any misdemeanor committed against a domestic relation that necessarily involves the “use . . . of physical force.”  §921(a)(33)(A).  The question presented here is whether misdemeanor assault convictions for reckless (as contrasted to knowing or intentional) conduct trigger the statutory firearms ban. We hold that they do.

Justice Thomas authored a dissent in Voisine, which was partially joined by Justice Sotomayor.  His dissent is nearly twice as long as the opinion for the Court, and it starts and ends this way:

Federal law makes it a crime for anyone previously convicted of a “misdemeanor crime of domestic violence” to possess a firearm “in or affecting commerce.” 18 U.S.C. §922(g)(9).  A “misdemeanor crime of domestic violence” includes “an offense that . . . has, as an element, the use or attempted use of physical force . . . committed by [certain close family members] of the victim.” §921(a)(33)(A)(ii).  In this case, petitioners were convicted under §922(g)(9) because they possessed firearms and had prior convictions for assault under Maine’s statute prohibiting “intentionally, knowingly or recklessly caus[ing] bodily injury or offensive physical contact to another person.” Me. Rev. Stat. Ann., Tit. 17–A, §207(1)(A) (2006).  The question presented is whether a prior conviction under §207 has, as an element, the “use of physical force,” such that the conviction can strip someone of his right to possess a firearm.  In my view, §207 does not qualify as such an offense, and the majority errs in holding otherwise.  I respectfully dissent....

At oral argument the Government could not identify any other fundamental constitutional right that a person could lose forever by a single conviction for an infraction punishable only by a fine.  Tr. of Oral Arg. 36–40.  Compare the First Amendment.  Plenty of States still criminalize libel....  I have little doubt that the majority would strike down an absolute ban on publishing by a person previously convicted of misdemeanor libel.  In construing the statute before us expansively so that causing a single minor reckless injury or offensive touching can lead someone to lose his right to bear arms forever, the Court continues to “relegat[e] the Second Amendment to a second-class right.”  Friedman v. Highland Park, 577 U. S. ___, ___ (2015) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 6).

In enacting §922(g)(9), Congress was not worried about a husband dropping a plate on his wife’s foot or a parent injuring her child by texting while driving.  Congress was worried that family members were abusing other family members through acts of violence and keeping their guns by pleading down to misdemeanors.  Prohibiting those convicted of intentional and knowing batteries from possessing guns — but not those convicted of reckless batteries — amply carries out Congress’ objective.

Instead, under the majority’s approach, a parent who has a car accident because he sent a text message while driving can lose his right to bear arms forever if his wife or child suffers the slightest injury from the crash.  This is obviously not the correct reading of §922(g)(9).  The “use of physical force” does not include crimes involving purely reckless conduct. Because Maine’s statute punishes such conduct, it sweeps more broadly than the “use of physical force.”  I respectfully dissent.

June 27, 2016 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Thursday, June 23, 2016

"For aficionados of pointless formalism, today’s decision is a wonder, the veritable ne plus ultra of the genre."

The title of this post is one of a number of Justice Alito's spectacular comments in his dissent in the latest Supreme Court ruling on ACCA, Mathis v. United States, No. 15–6092 (S. Ct. June 23, 2016) (opinion here, basics here).   In addition to a number of great rhetorical flourishes, Justice Alito's dissent in Mathis explains how messy ACCA jurisprudence has become and reinforces my sincere wish that folks in Congress would find time to engineer a (long-needed, now essential) statutory ACCA fix.  Here are passages from Justice Alito's Mathis dissent that frames effectively the mess that ACCA has become and builds up to the sentence I am using as the title of this post: 

Congress enacted ACCA to ensure that violent repeat criminal offenders could be subject to enhanced penalties — that is, longer prison sentences — in a fair and uniform way across States with myriad criminal laws....

Programmed [via prior ACCA rulings], the Court set out on a course that has increasingly led to results that Congress could not have intended. And finally, the Court arrives at today’s decision, the upshot of which is that all burglary convictions in a great many States may be disqualified from counting as predicate offenses under ACCA. This conclusion should set off a warning bell. Congress indisputably wanted burglary to count under ACCA; our course has led us to the conclusion that, in many States, no burglary conviction will count; maybe we made a wrong turn at some point (or perhaps the Court is guided by a malfunctioning navigator). But the Court is unperturbed by its anomalous result. Serenely chanting its mantra, “Elements,” see ante, at 8, the Court keeps its foot down and drives on....

A real-world approach would avoid the mess that today’s decision will produce. Allow a sentencing court to take a look at the record in the earlier case to see if the place that was burglarized was a building or something else. If the record is lost or inconclusive, the court could refuse to count the conviction. But where it is perfectly clear that abuilding was burglarized, count the conviction.

The majority disdains such practicality, and as a resultit refuses to allow a burglary conviction to be counted even when the record makes it clear beyond any possible doubt that the defendant committed generic burglary.... As the Court sees things, none of this would be enough. Real-world facts are irrelevant.

June 23, 2016 in Marijuana Legalization in the States, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms

As reported in this Reuters piece, headlined "California lawmakers move to change sentencing law following Stanford case," the common legislative reaction by policy-makers to concerns about an unduly lenient sentence is in progress in the wake of the high-profile sexual assault sentencing of Brock Turner. Here are the basics:

Seizing on a nationwide furor over the six-month jail term handed to a former Stanford University swimmer following his conviction for sexual assault on an unconscious woman, California lawmakers on Monday introduced legislation to close a loophole that allowed the sentence. The bill, known as AB 2888, marks the latest response to the sentence given to 20-year-old Brock Turner by Santa Clara County Superior Court Judge Aaron Persky in June, which was widely condemned as too lenient. Prosecutors had asked that Turner be given six years in state prison.

"Like many people across the nation, I was deeply disturbed by the sentence in the Brock Turner case," Assemblyman Bill Dodd, one of two California state legislators who introduced the bill, said in a written statement. "Our bill will help ensure that such lax sentencing doesn't happen again."

Turner was convicted of assault with intent to commit rape, penetration of an intoxicated person and penetration of an unconscious person in the January 2015 attack. Under California law, those charges are not considered rape because they did not involve penile penetration. According to the lawmakers, current California law calls for a mandatory prison term in cases of rape or sexual assault where force is used, but not when the victim is unconscious or severely intoxicated and thus unable to resist.

The new legislation, which was introduced in the state assembly on Monday, would eliminate this discretion of a judge to sentence defendants convicted of such crimes to probation, said Ben Golombek, a spokesman for Assemblyman Evan Low, a co-author of the bill. Golombek said that the effect of the proposed new law, which must still be approved by both houses of the legislature and signed by Governor Jerry Brown, is that Turner would have faced a minimum of three years behind bars.

Prior related posts:

June 23, 2016 in Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Stressing harms of drunk driving, SCOTUS upholds warrantless breath tests (but not warrantless blood tests) incident to arrest

The Supreme Court handed down its last big Fourth Amendment decision of this Term, and Birchfield v. North Dakota, No. 14–1468 (S. Ct. June 23, 2016) (available here), is a nuanced ruling that I am glad to see makes much of the scourage of drunk driving. Here is the start of the Birchfield opinion for the Court authored by Justice Alito, as well as two key summary paragraphs from deep into the opinion:

Drunk drivers take a grisly toll on the Nation’s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year.  To fight this problem, all States have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) that exceeds a specified level.  But determining whether a driver’s BAC is over the legal limit requires a test, and many drivers stopped on suspicion of drunk driving would not submit to testing if given the option. So every State also has long had what are termed “implied consent laws.” These laws impose penalties on motorists who refuse to undergo testing when there is sufficient reason to believe they are violating the State’s drunk-driving laws.

In the past, the typical penalty for noncompliance was suspension or revocation of the motorist’s license.  The cases now before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested after being lawfully arrested for driving while impaired.  The question presented is whether such laws violate the Fourth Amendment’s prohibition against unreasonable searches....

Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving.  The impact of breath tests on privacy is slight, and the need for BAC testing is great.

We reach a different conclusion with respect to blood tests.  Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.  Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant.

Chief Justice Roberts and Justices Kennedy, Breyer and Kagan joined Justice Alito's opinion for the Court.  Justice Sotomayor, joined by Justice Ginsburg, filed an opinion concurring in part and dissenting in part. Justice Thomas also filed his own opinion concurring in the judgment in part and dissenting in part.

June 23, 2016 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Wednesday, June 22, 2016

Anyone interested in making bold predictions on the last four criminal cases still to be decided by SCOTUS this Term?

Amy Howe at SCOTUSblog has this helpful new post reviewing the final eight cases still to be resolved by the eight Justices before they take their summer vacations.  Some of these opinions will be handed down tomorrow and the others are likely to be released early next week.  Notably, four of the remaining eight are criminal cases (and I am leaving out of this accounting the big immigration case).  Here are Amy's review of the four criminal cases left:

Voisine v. United States (argued February 29, 2016). Stephen Voisine and William Armstrong, the other petitioner in this case, both pleaded guilty in state court to misdemeanor assaults on their respective domestic partners. Several years later, each man was charged with violating a federal law that prohibits the possession of firearms and ammunition by individuals who have previously been convicted of a misdemeanor crime of domestic violence.  Voisine and Armstrong contend their state convictions (which the First Circuit affirmed) do not automatically qualify as misdemeanor crimes of domestic violence because the state-law provisions can be violated by conduct that is merely reckless, rather than intentional.

Birchfield v. North Dakota (argued April 20, 2016).  Twelve states and the National Park Service impose criminal penalties on suspected drunk drivers who refuse to submit to testing to measure their blood-alcohol levels. The question before the Court is whether those penalties violate the Fourth Amendment, which only allows police to “search” someone if they have a warrant or one of a handful of exceptions to the warrant requirement applies. Three drivers from North Dakota and Minnesota argue that neither of those conditions is met, and so the laws must fall.   The North Dakota and Minnesota Supreme Courts ruled in favor of the states, and now the Justices will weigh in.

Mathis v. United States (argued April 26, 2016).  After having been convicted of several burglaries in Iowa, Richard Mathis was later prosecuted by the federal government for being a felon in possession of a firearm and received a mandatory minimum sentence under the Armed Career Criminal Act based on his burglary convictions.  The Eighth Circuit affirmed his conviction.  The question before the Court is how to determine whether state convictions like Mathis’s qualify for federal mandatory minimum sentences and for removal under immigration law.

McDonnell v. United States (argued April 27, 2016).  Former Virginia governor Bob McDonnell is challenging his convictions for violating federal laws that make it a felony to agree to take “official action” in exchange for money, campaign contributions, or anything else of value. The Fourth Circuit affirmed, and so the Justices agreed to weigh in.  He argues that merely referring someone to an independent decision maker – in his case, in an effort to help promote a Virginia businessman’s nutritional supplement – doesn’t constitute the kind of “official action” that the statute bars.

I think it is possible that any of these cases could turn into a blockbuster, and Birchfield and McDonnell arguably require the Justices to do some "big" jurisprudential work to resolve the issues before them. Narrow/technical rulings seem more likely in Voisine and Mathis, though the former may get some extra attention in light of the on-going political discussions and sparring over gun control following the Orlando shootings and the latter seems sure to add yet another chapter to the lengthy and complicated ACCA jurisprudence.

As we await these final rulings (and especially because all are sure to be eclipsed in the mainstream media by the abortion, affirmative action and immigration cases also on tap), I would be eager to hear from readers about what they are expecting or even hoping for as the SCOTUS Term winds down.

June 22, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, June 21, 2016

"What is 'violent' crime?"

The question in the title of this post is the very first sentence of this effective Salon commentary by Benjamin Levin. The commentary has this (much less pithy) full headline and subheadline: "It’s time to rethink 'violent' crime: How mislabeling misconduct contributes to our bloated criminal justice system: The distinction between violent and nonviolent crime is a problematic metric for determining criminal punishment." And here are excerpts:

What is “violent” crime? Perhaps that seems like an easy question — murder is; tax evasion isn’t. But the distinction between violent and nonviolent crime has proven tricky for lawyers, judges and legislators.

Policy debates about proper punishments or enforcement too often break down because the various stakeholders get hung up on whether the crime in question is “violent.”  If we are serious about addressing mass incarceration and our bloated criminal justice system, it’s time to rethink what counts as violent crime.

Perhaps nowhere is this issue more evident than in recent debates about drug crime.  Where the bipartisan push to reduce prison populations has focused on “nonviolent drug offenders,” sentencing reform opponents have argued that drug crime is inherently violent.

Last year, the National Association of Assistant U.S. Attorneys (an organization representing federal prosecutors) published a white paper arguing that drug trafficking is violent crime.  Last month, William Bennett and John Walters (the drug czars for Presidents George H.W. Bush and George W. Bush, respectively), penned an op-ed echoing this claim.

I think that Bennett and Walters are wrong on the facts, but their argument also highlights the problem with using the violent/non-violent distinction as a relevant metric of criminal punishment.

Bennett and Walters claim that drug trafficking is violent because of the harms that drugs themselves do (i.e., by hurting users and by imposing third party harms). Notably, their claim isn’t that drug dealers use violence to make money and control their turf.  Indeed, a body of research shows that prohibition – not the drugs themselves — has made drug dealing a dangerous industry.  Rather, their claim is that drug dealing is violent because it has victims. And that’s a much broader claim.

They’re certainly right that many illegal drugs carry with them severe health risks and risks to third parties, causing danger at home, in the workplace, and on the road. But does that make drug dealing a “violent crime”?

Bennett and Walters’s argument appears to rest on an expansive definition of violent – an act is violent if it does harm in the world or if people suffer directly or indirectly because of it.  This definition would capture many traditional violent crimes (murder, rape, assault, etc.), but it would also sweep in a great deal of conduct that does harm, directly or indirectly.  Why isn’t selling alcohol or cigarettes a violent act?  What about gun possession?  Drunk driving?  Theft?  Or even tax evasion?

While the Supreme Court has struggled to define when conduct is “violent,” the real-world consequences of this definitional question are critically important: the law often treats violent and nonviolent crime very differently.  Many laws govern the conduct of those with criminal records, restricting housing, employment, voting and a range of benefits. These laws often depend upon the nature of the underlying offense — a violent felony might preclude someone from finding work in a given industry; a nonviolent conviction might not.  Additionally, a conviction for a violent (as opposed to a nonviolent) crime might trigger a much longer sentence if an individual commits another crime — even if the second crime is nonviolent or less serious....

Certainly, there are many cases in which most of us would agree that the alleged conduct is violent. And there may be cases in which most of us would agree that conduct is nonviolent.  (And, those latter cases often serve as the easiest point of bipartisan sentencing reform.)  Yet Bennett and Walters’s argument shows that most harmful or objectionable conduct might be classified as violent.  If a determination that crime is violent rests simply on finding someone who suffers directly or indirectly based on the act in question, then the definition knows no bounds.

If “violent crime” means so many things, then it only creates the illusion that society has sorted out the true “bad guys” or punished the worst conduct.  Instead, it becomes a proxy for social harm, risk prediction, or moral condemnation. It may be that consensus on questions of criminal punishment is an impossible goal.  But continuing to cast all objectionable conduct as violent is counterproductive and makes meaningful compromise and reform even more difficult.

June 21, 2016 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (7)

Sunday, June 19, 2016

Even after Orlando shootings, GOP leaders in Congress unwilling to allow more medical research into gun deaths

Though I generally favor so-called "common-sense" gun regulations, I am not sure that more gun regulations will really help to reduce gun violence.  But I am sure that more research on gun violence and gun-related deaths could and should help us better engineer laws to advance public safety.  Consequently, I was saddened and disappointed to see this recent article in The Hill.  It is headlined "GOP rebuffs doctors on gun research," and here are excerpts:

The American Medical Association’s new push to unfreeze federal funding for gun research is hitting a wall of resistance in the Republican Party. In the wake of the mass shooting in Orlando, the nation’s leading doctors group announced Tuesday it plans to “actively lobby” against a nearly 20-year-old budget rule that has prevented federal researchers from studying gun-related deaths.

The near-unanimous vote, which took place two days after Orlando shooting early Sunday morning, puts the powerful doctor’s lobby at odds with Second Amendment supporters who have argued that gun-related violence is no different from other violent acts.

Dr. Alice Chen, the executive director of the nonprofit Doctors for America, called the move a “game changer” for the long-standing fight to lift the research restrictions. “The strength of the AMA's vast membership, plus that of the over 100 medical and public health groups across the country, will be hard for Congress to ignore,” she said.

But Republicans in Congress, including those in the House Doctors Caucus who are members of the group, are soundly rejecting the AMA’s calls for research into gun-related deaths. “I don’t particularly see the need for it, quite frankly,” Rep. Tom Cole (R-Okla.), who leads health funding for the House Appropriations Committee, told The Hill on Thursday.

Rep. Michael Burgess (R-Texas), a member of the House Doctors Caucus, said he also opposed the policy change. “Although I’m a member of the AMA, I don’t always agree with the position they take,” Burgess told The Hill on Thursday. “It seems to have worked well. I don’t favor changing it,” Burgess said of federal researchers staying away from the issue of guns....

It’s becoming increasingly unlikely that the gun research will be part of Congress’s response to the Orlando shooting. Cole, the Oklahoma Republican, said GOP leaders are much more likely to boost funding for the FBI to improve background checks. “Research is good, but unfortunately, this administration has used terrorism despicably to advance their gun control issue. It doesn’t shock me to tears that he might use [Centers for Disease Control and Prevention] research rules to do the same,” Rep. Trent Franks (R-Ariz.) said Thursday.

Democrats this week already forced the GOP-led House Energy and Commerce Committee to vote on the research issue during its markup of a mental health bill. That amendment, from Rep. Tony Cárdenas (D-Calif.), failed on a party line vote of 23-29.

The moratorium on federal gun research stems from a 1997 budget amendment that prohibits federal funds “to advocate or promote gun control” — language that researchers say has had a chilling effect. Republicans adopted the so-called Dickey amendment, named after Rep. Jay Dickey (R-Ga.), in 1997 after strong lobbying from groups such as the National Rifle Association. Gun rights supporters have long argued that government agencies use studies to advance gun control, something researchers deny.

Dickey has since reversed course and is now campaigning to change the wording in the law.  Other gun rights advocates have remained strong in their opposition.  Larry Keane, general counsel for the National Sports Shooting Association, said the Centers for Disease Control and Prevention has “misdiagnosed the issue.”

“Our view is that criminal violence involving firearms is a criminal justice [issue],” Keane said in an interview Thursday. “The CDC should focus on its mission, which is addressing diseases and illnesses like cancer and preventing an outbreak of the Zika virus.”

The renewed push for lifting the federal research restrictions began on Tuesday, after the AMA’s policy-making arm, the House of Delegates, decided by voice vote to “actively lobby” on the issue.  It also officially declared gun violence to be a "public health crisis” for the first time, over the protest of some members.

American Academy of Family Physicians president, Dr. Wanda Filer, who attended the meeting in Chicago, said she heard “very few nay votes” during the vote.  The resolution had been drafted late into the night on Sunday by a group of young doctors who skipped planned conference festivities to draft it.

It was the second year in a row the AMA’s conference was interrupted by reports of a mass shooting. Last year, the AMA held a moment of silence after the shooting at a historic black church in Charleston, S.C., that killed nine people....

Filer said the AMA’s vote adds momentum to the cause that many physician groups, like hers, already supported. “Without research and being brave enough to ask the questions, we’re going to have ill-informed, emotional arguments,” Filer said Thursday. “What we’re saying is, we need research.”

Importantly, I do not disagree with the gun rights advocates' view that "criminal violence involving firearms is a criminal justice [issue]," but accepting that notion does not logically justify precluding medical research on gun-related deaths. If our society is truly committed to reducing gun deaths, we ought to have bright researchers working in all disciplines studying this grave problem to try to discover evidence-based strategies to improve public safety.  But, sadly, it seems that even after the worst mass shooting in recent US history, partisan politics can still preclude sensible policymaking.

June 19, 2016 in Gun policy and sentencing, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Friday, June 17, 2016

"'Loss' Revisited: A Guarded Defense of the Centerpiece of the Federal Economic Crime Sentencing Guideline"

The title of this post is the title of this notable new article authored by Frank Bowman now available via SSRN. Here is the abstract:

This article discusses "loss," the concept at the heart of the Federal Sentencing Guidelines section governing economic crimes, Section 2B1.1. It notes the common criticism that "loss" plays too large a role in federal economic crime sentencing, but distinguishes between the sound observation that structural problems in Section 2B1.1 cause loss amount to generate too many "offense levels" and critiques of the core definition of "loss."

The article summarizes previous suggestions made by the author and others to address the arguably disproportionate role played by "loss," but it focuses primarily on the Guidelines' definition of "loss," whether actual or intended. The article defends the fundamental soundness of the existing "loss" definition, but suggests some points on which improvements might be made, particularly to the definition of intended loss.

The article was solicited as a response to an article by Mr. Daniel Guarnera, published in the same issue of the Missouri Law Review, in which Mr. Guarnera argues for a revision of the definition of intended loss to include unrealized harms as to which the defendant was reckless.

June 17, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Daughter of mass murder victim explains why she opposes death penaly for Charleston church shooter Dylann Roof

This new Vox commentary authored by Sharon Risher explains a notable person's notable perspective on  forgiveness and the death penalty in a notable capital case. The piece is headlined "My mom was killed in the Charleston shooting. Executing Dylann Roof won’t bring her back." Here are excerpts:

Ethel Lance, my mother, was killed on Wednesday, June 17, 2015, along with my cousins Susie Jackson and Tywanza Sanders, and six other people at Charleston’s Emanuel African Methodist Episcopal Church.  It appears to have been a racially motivated massacre plotted by a 21-year-old white man....

A mere 48 hours after the church shooting, millions of Americans watched my sister, Nadine Collier, stand in front of our mother’s accused killer and forgive him at his bond hearing.  The media ran with the forgiveness narrative, praising the ability of the victims’ families for their graciousness and faith.

I didn’t forgive Dylann Roof. And I still don’t forgive him. After I saw my sister address the nation, I thought, This girl has to be crazy! Who’s going to forgive him so quickly?  I was hurt that people thought Nadine’s views reflected the views of the Lance family and the thoughts of all of the Charleston nine’s loved ones.

Don’t get me wrong. I disagreed with Nadine, but I respected her opinion — she’s my sister, and she has a right to her own emotions and grieving process.  Still, after the shooting, there were several articles that exploited our different ways of grieving.  They pitted us against each other in the midst of a horrific tragedy.

I understand that the people of Charleston, and of America as a whole, latched onto the overwhelming message of forgiveness as a coping mechanism.  But the focus on quick forgiveness and the pivot to remove the Confederate flag from the South Carolina statehouse washed away the severity of the larger issues at hand – that the accused killer, because of his hatred of black people, could be so stirred by white supremacist ideology that he would go into that church to kill my momma and all the others.

The man accused of killing my mother did not show any remorse.  Why should I feel the need to forgive him when he has not asked for forgiveness?  I know God commands us to forgive, but there is no time stamp — forgiveness is a journey that you allow yourself to feel because someone has wronged you....

In the months since the shooting, I received a handwritten letter from Lucia McBath, whose son Jordan Davis was killed in 2012 from gun violence. Lucia sent her condolences and told me to reach out to her if I needed to.  On a whim, I did.  From there, I became involved with gun control advocacy, rallying for national gun control organizations....

Despite the anger I am still coping with from my mother’s death, I don’t believe in the death penalty, even for the man who killed her.  That’s my conviction because of my faith.  I’ve said the same thing all along — I don’t believe as human beings that we should take away someone’s life just because we have the power to do so.

God is the only person, the only being who decides our fate.  Still, I will let the judicial system do what they choose. The Department of Justice announced last month that it will seek the death penalty against the shooter.  Whatever the outcome, I will not protest.

This is how my faith carries me. I don’t walk in fear.  I don’t think about Dylann Roof.  All I want to do is do what God has planned out for me.  If I can stop one person from experiencing the pain myself and my family and all the families experienced post-Charleston, then I have done my part.

June 17, 2016 in Death Penalty Reforms, Offense Characteristics, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, June 16, 2016

New NIJ research report explores particulars and reasons for unprecedented 2015 increase in US homicides

The National Institute of Justice this week released this important and interesting new report authored by criminologist Richard Rosenfeld titled "Documenting and Explaining the 2015 Homicide Rise: Research Directions." Here is the report's executive summary:

The debate over the size, scope and causes of the homicide increase in 2015 has been largely free of systematic evidence. This paper documents the scale of the homicide increase for a sample of 56 large U.S. cities. It then examines three plausible explanations of the homicide rise: an expansion of urban drug markets fueled by the heroin epidemic, reductions in incarceration resulting in a growing number of released prisoners in the nation’s cities, and a “Ferguson effect” resulting from widely publicized incidents of police use of deadly force against minority citizens. The paper concludes with a call for the more frequent and timely release of crime information to address crime problems as they arise.

The homicide increase in the nation’s large cities was real and nearly unprecedented.  It was also heavily concentrated in a few cities with large African-American populations. Empirical explanations of the homicide increase must await future research based on year-end crime data for 2015.  Several empirical indicators for assessing the explanations under consideration here are discussed.  For example, if the homicide increase resulted from an expansion in urban drug markets, we should observe larger increases in drug-related homicides than those committed under other circumstances.  If returning prisoners fueled the homicide increase, that should be reflected in growing numbers of homicides committed by parolees.

It will be more difficult to empirically evaluate the so-called Ferguson effect on crime increases, depending on the version of this phenomenon under consideration.  The dominant interpretation of the Ferguson effect is that criticism of the police stemming from widely publicized and controversial incidents of the use of force against minority citizens caused the police to disengage from vigorous enforcement activities. Another version of the Ferguson effect, however, switches the focus from changes in police behavior to the longstanding grievances and discontent with policing in AfricanAmerican communities.  In this interpretation, when activated by controversial incidents of police use of force, chronic discontent erupts into violence.

The de-policing interpretation of the Ferguson effect can be evaluated with data on arrests and other forms of self-initiated activity by the police.  De-policing should be reflected in declining arrest rates in cities experiencing homicide increases.  Tracing the pathways from chronic levels of discontent to an escalation in homicide will ultimately require ethnographic studies in minority communities that reveal, for example, whether offenders believe they can engage in crime without fear that residents will contact the police or cooperate in police investigations.  Such studies could also disclose other linkages between discontent, police use of force and criminal violence.

In summary, the following research questions for documenting and explaining the 2015 homicide rise, at a minimum, should be pursued when the requisite data become available:

• How large and widespread was the homicide increase in 2015? Did other crimes also increase?

• What conditions drove the homicide increase? Candidate explanations must account for the timing as well as the magnitude and scope of the increase.

• What role, if any, did the expansion of drug markets play in the 2015 homicide increase? Was there a relative increase in drug arrests and drug-related homicides?

• Did declining imprisonment rates contribute to the 2015 homicide rise? Was the increase greater in cities with more returning prisoners and among parolees?

• What role did the Ferguson effect play in the homicide rise? If de-policing contributed to the increase, arrest rates should have declined in cities experiencing the largest homicide increases. An open question is how to evaluate the role, if any, of community discontent with the police. Ethnographic studies, among other methods, should be high on the list of research approaches to identify the mechanisms linking police legitimacy and escalating levels of violence.

Researchers would have been in a better position to begin addressing the 2015 homicide rise, with evidence rather than speculation, if timely crime data had been available as the increase was occurring. We would have known whether the homicide rise was confined to large cities, whether other crimes were also increasing, and whether arrest rates were falling. The debate over the homicide increase would have been better informed. Technical impediments to the monthly release of crime data no longer exist. A large and worrisome increase in homicide should be the catalyst to finally bring the nation’s crime monitoring system into the 21st century.

June 16, 2016 in National and State Crime Data, Offense Characteristics | Permalink | Comments (8)

Sunday, June 12, 2016

After most deadly mass shooting in US history, sadness and frustration and realism

The tragic news today from Orlando, which is already being identified as the worst mass shooting in US history, is not a sentencing story because the shooter apparently was killed by the police while on the scene of his horrible crimes.  But, I feel compelled to blog about this horrific crime in order to express my deep sadness.  I also have to express my frustration that, no matter what I or others have to say, the circumstances of this horrific crime will likely engender political and social discussions that may just deepen divisions among Americans who cannot help but want to "do something" and yet rightly struggle to figure out just what can be done about man's inhumanity to man.

June 12, 2016 in Offender Characteristics, Offense Characteristics | Permalink | Comments (12)

Friday, June 10, 2016

Split Seventh Circuit panel debates import and impact of jury finding of drug quantity rejected by the judge at sentencing

A helpful reader altered me to an interesting Seventh Circuit ruling today in US v. Saunders, No. 13-3910 (7th Cir. June 10, 2016) (available here). These passages from the partial dissent authored by Judge Manion provides a reasonable look into why this split panel's sentencing work is blog-worthy:

The jury in this case found beyond a reasonable doubt that the drug amount was between 100 grams and 1 kilogram.  This necessarily implies that the jury found the offense did not involve 3.69 kilograms, but at sentencing, the district court found a 3.69-kilogram amount.  These findings are irreconcilable.  By its finding, the district court overrode the jury’s decision. The Sixth Amendment does not allow this.  I dissent from this aspect of the court’s decision, but join in all other aspects....

A straightforward reading of the jury-verdict form does not allow this court to find an “effective acquittal.”  The jury does not — in a single sentence, passing judgment on one count — actually convict and effectively acquit.  Here, the jury convicted Saunders and Bounds of a capped drug quantity, and its verdict should stand....

In its ruling today, the court affirms the district court’s application of Watts to this case.  It should not.  Watts stands for the simple principle that a sentencing court may consider conduct underlying an acquitted charge if that underlying conduct is proven by a preponderance of the evidence. Watts, 519 U.S. at 157.  Watts is therefore factually and legally distinguishable from this case. Instead of an acquittal, this case features an affirmative jury finding of fact.  An acquittal is a legal conclusion, “not a finding of any fact,” and it “can only be an acknowledgment that the government failed to prove an essential element of the offense beyond a reasonable doubt.” See id. at 155 (internal quotation marks omitted)....

As the Supreme Court observed [in Watts], “That [acquittal] verdict does not preclude a finding by a preponderance of the evidence that the defendant did, in fact, use or carry such a weapon, much less that he simply possessed the weapon in connection with a drug offense.” Id. at 157 (emphasis in original).  In contrast, the two results in this case cannot square: the defendants cannot have (1) possessed less than 1 kilogram and (2) also possessed 3.69 kilograms. By flatly contradicting the jury’s express factual finding, the sentencing judge in this case violated the Sixth Amendment rights of Saunders and Bounds.  And if the jury system is to mean anything, this outcome is a problem.

June 10, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Should I really be too troubled by a Texas life sentence (with parole eligibility in 30 years) for nine-time drunk driver?

The question in the title of this post is prompted by this New York Times piece headlined "He Had 8 Convictions for Driving Drunk. On His 9th, He Got Life." Here are the details:

The first eight convictions for driving while intoxicated didn’t stop Donald Middleton of Houston from sliding behind the wheel and getting his ninth conviction. This time, the judge had had enough.

When Mr. Middleton, 56, faced Judge Kathleen Hamilton of the 359th District Court in Texas on Tuesday, she sentenced him to life in prison. He won’t be eligible for parole for 30 years.

Such a harsh sentence is uncommon for drunken-driving convictions, which often lead to temporary license suspensions and prison stays that allow repeat offenders to return to the road. In Mr. Middleton’s case, he still had a valid driver’s license, despite the eight convictions. Mr. Middleton’s case raises the question: How many times does someone have to be caught driving drunk before he or she can no longer legally drive?

He was arrested in May 2015 after he turned into the wrong lane and collided head-on with a vehicle driven by a 16-year-old who was on the way home from work at a grocery store. Mr. Middleton ran into a nearby convenience store and repeatedly asked a clerk to hide him, prosecutors said. He had a blood-alcohol level of 0.184, more than twice the legal limit, 0.08, according to Justin Fowles, a Montgomery County assistant district attorney. Mr. Middleton pleaded guilty to driving while intoxicated last May and has been in jail since.

The teenager, Joshua Hayden, was not injured, but his father, Rowdy Hayden, said in a telephone interview that he appreciated the judge’s harsh sentence. “It angers me, as a father, that this individual skirted the justice system eight times and was still out here endangering our citizens on the roadway by drinking and driving,” said Mr. Hayden, who is a police constable in Montgomery County. “His proven track record showed he was going to continue to drink and drive. And who knows, the next time he may have killed someone.”

Mr. Middleton had four previous stints in prison for driving while intoxicated. His eighth conviction, in 2008, involved rear-ending a car with several people inside; they sustained minor injuries. Mr. Middleton fell out of the car and was unable to stand, Mr. Fowles said.

The conviction from that episode led to a 13-year prison sentence, of which he served four years. After the most recent conviction, he was classified as a habitual offender, which enabled the longer sentence. “He had proven to us that he can’t be trusted with his own freedom, that he’s a danger to our community and that the best thing for everyone else’s safety on the roadways is for him to never be able to drive again,” Mr. Fowles said in a telephone interview.

Rules for stopping habitual drunken drivers vary wildly by state, but repeat offenders tend to get multiple extra chances. The National Highway Traffic Safety Administration estimates that one in three people arrested on drunken-driving charges are repeat offenders. In Minnesota, a 61-year-old man was released from prison last year after a five-year stay for his 27th conviction related to drunken driving. In Pennsylvania, one man was arrested five times in less than a year, but never lost his driver’s license or served more than 10 days in jail....

J. T. Griffin, the chief government affairs officer for Mothers Against Drunk Driving, said the organization had focused on promoting ignition interlock devices, which require anyone convicted of drunken driving to pass a breathalyzer test before starting a car. Twenty-seven states have laws requiring them, including New York, he said. Suspending licenses can be ineffective when many people continue to drive without a valid license, he said.

“We believe in going after D.U.I. the first time, not waiting for the second or third or fourth offense,” Mr. Griffin said. “The first time is unacceptable. And nine times is just ridiculous.”

June 10, 2016 in Offense Characteristics, Scope of Imprisonment | Permalink | Comments (7)

Wednesday, June 08, 2016

"Salience and the Severity Versus the Certainty of Punishment"

The title of this post is the title of this notable new essay authored by Murat Mungan now available via SSRN. Here is the abstract:

The certainty aversion presumption (CAP) in the economics of law enforcement literature asserts that criminals are more responsive to increases in the certainty rather than the severity of punishment.  In simple economic models, this presumption implies that criminals must be risk-seeking.  Some scholars claim that this and similar anomalous implications are caused by the exclusion of various behavioral considerations in theoretical analyses.

This article investigates whether a model in which criminals over-weigh probabilities attached to more salient outcomes (as in Bordalo et al. (2012) and (2013)) performs better than the simple expected utility theory model in explaining CAP-consistent-behavior.  The analysis reveals that the answer is negative unless the probability of punishment is unreasonably high.  This finding suggests that we should exercise caution in incorporating salience -- a la Bordalo et al.-- in simple law enforcement models.

June 8, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Tuesday, June 07, 2016

Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter

The discussion of last week's lenient sentencing of a former Stanford University student convicted of multiple counts of sexual assault (basics here) has continued to generate notable mainstream and new media stories.  Here is a round up of reads some of the latest reads that I found interesting:

I also thought worth reprinting was this comment from "Joe R" deep into the comment thread of my last post about this controversial case:

Dude will be on the sex offender registry for life with a violent felony. His life is essentially over. As countless sex offenders have demonstrated with their actions by committing suicide, life in America on the registry is a fate often worse than death.

Rest assured all of you expressing outrage, this kid's life is over, and he has little to no prospect of an enjoyable fulfilling life. He is being severely punished, and hasn't gotten away with anything.

June 7, 2016 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (14)

Monday, June 06, 2016

Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault

The recent lenient sentencing late last week of Stanford University student convicted of multiple counts of sexual assault has become a very big story today, and lots of folks across the political spectrum seem justifiably troubled by it.  This new New York Times article, headlined "Outrage in Stanford Rape Case Over Light Sentence for Attacker and Statement by His Father," provides some of the basics about the case and reactions to it:

A sexual assault case at Stanford University has ignited public outrage and a recall effort against a California judge after the defendant was sentenced to six months in a jail and his father complained that his son’s life had been ruined for “20 minutes of action” fueled by alcohol and promiscuity. In court, the victim had criticized her attacker’s sentence and the inequities of the legal process.

The case has made headlines since the trial began earlier this year but seized the public’s attention over the weekend after the accused, Brock Allen Turner, 20, a champion swimmer, was sentenced by Superior Court Judge Aaron Persky of Santa Clara County to what many critics denounced as a lenient stint in jail and three years’ probation for three felony counts of sexual assault.

The next day, BuzzFeed published the full courtroom statement [available here and recommended reading] by the woman who was attacked. The statement, a 7,244-word cri de coeur against the role of privilege in the trial and the way the legal system deals with sexual assault, has gone viral. By Monday, it had been viewed more than five million times on the BuzzFeed site. One of those readings happened live on CNN on Monday, when the anchor Ashleigh Banfield spent part of an hour looking into the camera and reading the entire statement live on the air.

The unidentified 23-year-old victim was not a Stanford student but was visiting the campus, where she attended a fraternity party. In the statement, she described her experience before and after the attack.

She argued that the trial, the sentencing and the legal system’s approach to sexual assault — from the defense lawyer’s questions about what she wore the night she was attacked to the light sentence handed down to her attacker — were irrevocably marred by male and class privilege. The trial privileged Mr. Turner’s well-being over her own, she said, and in the end declined to punish him severely because the authorities considered the disruption to his studies and athletic career at a prestigious university when determining his sentence....

If Mr. Turner and his defenders wanted to rebut that argument, a statement read to the court by his father, Dan Turner, and posted to Twitter on Sunday by Michele Dauber, a law professor and sociologist at Stanford, certainly did not help.

In the statement, Mr. Turner’s father said that his son should not do jail time for the sexual assault, which he referred to as “the events” and “20 minutes of action” that were not violent.  He said that his son suffered from depression and anxiety in the wake of the trial and argued that having to register as a sex offender — and the loss of his appetite for food he once enjoyed — was punishment enough. Brock Turner also lost a swimming scholarship to Stanford and has given up on his goal of competing at the Olympics.  “I was always excited to buy him a big rib-eye steak to grill or to get his favorite snack for him,” Dan Turner wrote.  “Now he barely consumes any food and eats only to exist. These verdicts have broken and shattered him and our family in so many ways.”

The Santa Clara, Calif., district attorney, Jeff Rosen, did not agree with Dan Turner’s assessment of the situation.  In a statement, he said the sentence “did not fit the crime” and called Brock a “predatory offender” who refused to take responsibility or show remorse. “Campus rape is no different than off-campus rape,” Mr. Rosen said. “Rape is rape.”

The editorial board of The San Jose Mercury News agreed, calling the sentence “a slap on the wrist” and “a setback for the movement to take campus rape seriously” in an editorial.

Professor Dauber said Monday that she was part of a committee that was organizing a recall challenge to Judge Persky, whose position is an elected one.  The professor said he had misapplied the law by granting Mr. Turner probation and by taking his age, academic achievement and alcohol consumption into consideration.

Professor Dauber might think about reaching out to Bill Otis for support for her effort to recall Judge Persky, as Bill now has these two notable posts up at Crime & Consequences about this case:

As the titles of these posts suggest, Bill seems right now more eager to go after the defense bar rather than the sentencing judge in this case, but I have an inkling he will be bashing on the judge soon, too.  (Bill has never been disinclined to attack judges or others whom he thinks are failing to do what he thinks they should be doing).  What strikes me as particularly notable and disconcerting, though, is that the elected state sentencing judge involved in this case was, according to this webpage, "a criminal prosecutor for the Santa Clara County District Attorney's Office, where [he was called upon to] prosecute sex crimes and hate crimes" right before he became a judge.

I am not familiar with the particulars of California criminal procedures as to whether a prosecutor is able to appeal a sentence considered unjustifiably lenient.  If so, then perhaps this sentence can be scrutinized and perhaps rectified on appeal; if not, we have another example of why I generally think allowing both sides to appeal a sentence for unreasonableness is a good idea. 

June 6, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24)

Friday, May 27, 2016

"Killing Dylann Roof: A year after Obama saluted the families for their spirit of forgiveness, his administration seeks the death penalty for the Charleston shooter."

The title of this post is the headline of this intriguing Atlantic commentary authored by Ta-Nehisi Coates. I urge everyone, both those for and against capital punishment, to read he entire piece. Here are excerpts:

On Tuesday, Attorney General Loretta Lynch announced she would seek the death penalty for Dylann Roof. It has not been a year since Roof walked into Emanuel African Methodist Episcopal Church and murdered nine black people as they worshipped.  Roof justified this act of terrorism in chillingly familiar language — “You rape our women and you’re taking over our country.”  The public display of forgiveness offered to Roof by the families of the victims elicited bipartisan praise from across the country.  The president saluted the families for “an expression of faith that is unimaginable but that reflects the goodness of the American people.” How strange it is to see that same administration, and these good people, who once saluted the forgiveness of Roof, presently endorse his killing....

There are defensible reasons why the American state — or any state — would find [the nonviolent Martin Luther] King’s ethic hard to live up to. States are violent. The very establishment of government, the attempt to safeguard a group of people deemed citizens or subjects, is always violent.  In America, a president is the commander in chief.  Anyone who voted for Obama necessarily voted for violence.  Furthermore, there is indisputable evidence that violence sometimes works.  The greatest affirmation of civil rights in American history — emancipation — was accomplished at gun-point.

But one has to be careful here not to fall into the trap of lionizing killing, of pride in the act of destroying people even for just ends.  Moreover, even if nonviolence isn’t always the answer, King reminds us to work for a world where it is. Part of that work is recognizing when our government can credibly endorse King’s example.  Sparing the life of Dylann Roof would be such an instance — one more credible than the usual sanctimonious homilies delivered in his name.  If the families of Roof's victims can find the grace of forgiveness within themselves; if the president can praise them for it; if the public can be awed by it — then why can't the Department of Justice act in the spirit of that grace and resist the impulse to kill?

Perhaps because some part of us believes in nonviolence not as an ideal worth striving for, but as a fairy tale passed on to the politically weak.  The past two years have seen countless invocations of nonviolence to shame unruly protestors into order. Such invocations are rarely made to shame police officers who choke men to death over cigarettes and are sent back out onto the beat.  And the same political officials will stand up next January and praise King even as they act contrary to his words.  “Capital punishment is against the best judgment of modern criminology,” wrote King, “and, above all, against the highest expression of love in the nature of God.”

A few prior related posts:

May 27, 2016 in Death Penalty Reforms, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (14)

Thursday, May 26, 2016

Making my way to DC for U.S. Chamber/NACDL Symposium: "The Enforcement Maze: Over-Criminalizing American Enterprise"

ILR. NACDL Banner-HHighlighting the many ironies of modern travel, this morning I got to the airport extra early for a flight to DCA because of all the talk about TSA under-staffing and long security lines. But after breezing through securing in a matter of minutes, I am now stuck in the CMH terminal delayed hours awaiting a working plane to ferry me to our nation's capital to participate in a symposium on overcriminalization. I am bummed about the delay because I was looking forward to hearing the morning panels at this inside-the-Beltway event to which I am heading: The U.S. Chamber Institute for Legal Reform (ILR) and the National Association of Criminal Defense Lawyers (NACDL) Law & Policy Symposium on "The Enforcement Maze: Over-Criminalizing American Enterprise."

Undaunted, I remain upbeat because I am cautiously optimistic I will still make it to DC in time to hear fellow lawprof Lucian Dervan present a "TED Talk-inspired" presentation on "The Symbiotic Relationship Between Overcriminalization and Plea Bargaining." I am also looking forward to an afternoon of highlights at this event that include a luncheon keynote by David Ogden, former Deputy Attorney General of the United States, as well as closing remarks by Senator Orrin Hatch.

For those revved up by these topics, here is the description of my afternoon panel:

The Public Policy Consequences and the Road to Recovery: This panel will address the erosion of respect for criminal law, costs incurred by taxpayers, over-incarceration, and the squashing of business ingenuity and growth, and will explore solutions to these problems.

I expect to talk briefly about the importance of mens rea considerations at the sentencing of persons convicted of business-related crimes (and I may do a future post or two on this topic). But, in light of the panel's description, I would welcome reader comments on what I should make sure gets covered my someone on my panel.

May 26, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, May 24, 2016

Federal prosecutors (FINALLY!) decide to pursue death penalty for Charleston mass murderer Dylann Roof

Almost a year after Dylann Roof committed one of the worst mass murder hate crimes in modern US history, federal prosecutors have offically decided to make his federal prosecution a capital one.  Here are excerpts from this CNN report about this (too-long-in-development) decision:

Federal prosecutors will seek the death penalty for Dylann Roof, who is accused of killing nine people at a historic African-American church in Charleston, South Carolina, in July 2015.

Roof, who is white, is charged with 33 federal offenses, including hate crime charges for allegedly targeting his victims on the basis of their race and religion. A judge entered a not guilty plea on his behalf in July 2015. "The nature of the alleged crime and the resulting harm compelled this decision," Attorney General Loretta Lynch said.

Roof, 22, is accused of shooting participants of a Bible study class at Emanuel African Methodist Episcopal Church, known as Mother Emanuel, in downtown Charleston on June 17, 2015. Among the victims was the church's pastor, the Rev. Clementa Pinckney, who also was a state senator.

South Carolina has charged Roof with murder. Charleston County Solicitor Scarlett Wilson said last year that she will seek the death penalty in the state's case, which is scheduled to go to trial in January.

There is no date yet for his federal trial. Attempts to reach Roof's attorneys for comment were not immediately successful.

Roof, a high school dropout not known for violence, was captured in North Carolina the day after the shootings. He confessed in interviews with the Charleston police and FBI, two law enforcement officials told CNN. He also told investigators he wanted to start a race war, one of those officials said.

Three federal inmates have been executed in the United States since the federal death penalty was reinstated in 1988 after a 16-year moratorium. They were Timothy McVeigh, Juan Raul Garza and Louis Jones. Boston Marathon bomber Dzhokhar Tsarnaev is one of the most recent people to be sentenced to death by a federal judge. There are about 60 people on federal death row.

I fully share the Attorney General's view that the "nature of the alleged crime and the resulting harm compelled this decision," and that is why I have been critical in prior posts about it taking so long to make this decision. A well-functioning criminal justice system surely ought to be able to prosecute and sentence a mass murderer in the span of a year in a case like this one in which there is no doubt about guilt. But, remarkably, it seems it now takes a year just to decide whether the death penalty should be even sought. Sigh.

A few prior related posts:

May 24, 2016 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)

Sunday, May 22, 2016

A bunch of timely and notable new Quick Facts from the US Sentencing Commission

The US Sentencing Commission has its pretty new website up and running, and my only knock on the site is that it is not easy anymore to see exacly what is new on the site.  Fortunately, I somehow discovered that the Commission released two notable new Quick Facts covering federal drug sentencing and mandatory minimum sentences.  (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")

In addition to these two new items, the Commission also released two other timely "Quick Facts" last month, and here are links to all four of these reader-friendly USSC products:

May 22, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (1)

Saturday, May 21, 2016

"Trespass, Not Fraud: The Need for New Sentencing Guidelines in CFAA Cases"

The title of this post is the title of this new paper authored by Orin Kerr now available via SSRN. Here is the abstract:

This article argues that the existing regime for sentencing violations of the Computer Fraud and Abuse Act (CFAA) is based on a conceptual error that often leads to improper sentencing recommendations. The Federal Sentencing Guidelines treat CFAA violations as economic crimes.  Most CFAA crimes are rooted in trespass, however, not economic loss such as fraud crimes.  The difference is significant.  The economic crimes framework now in place leads guidelines calculations to focus too much on economic loss and not enough on the circumstances of the crime.  The article concludes by sketching out a new and better way to calculate sentencing recommendations in CFAA cases.

May 21, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (0)

Thursday, May 19, 2016

Notable sentencing elements in Oklahoma bill making any and all abortions a felony subject to mandatory imprisonment of at least one year

As reported in this new Washington Post piece, headlined "Oklahoma legislature passes bill making it a felony to perform abortions," legislators in the Sooner State have now sent to the Governor a piece of legislation designed to test the enduring constitutional viability of Roe v. Wade sooner rather than later.  Here are the basics (with the sentencing portion that caught my eye highlighted):

Lawmakers in Oklahoma approved a bill Thursday that would make it a felony for anyone to perform an abortion and revoke the medical licenses of any physician who assists in such a procedure. This sweeping measure, which opponents have described as unconstitutional and unprecedented, was sent to Gov. Mary Fallin (R) for her signature.

Fallin has five days to decide whether to sign the bill, and her office did not immediately respond to a request Thursday about her plans. The Oklahoma bill is the first such measure of its kind, according to the Center for Reproductive Rights, which says that other states seeking to ban abortion have simply banned the procedure rather than attaching penalties like this.

According to the bill, anyone who performs or induces an abortion will be guilty of a felony and punished with between one and three years in the state penitentiary. The bill also says that any physician who participates in an abortion will be “prohibited from obtaining or renewing a license to practice medicine in this state.”

The bill passed the Oklahoma House of Representatives with a vote of 59-to-9 last month. On Thursday, the state’s senate passed it with a vote of 33-to-12. State Sen. Nathan Dahm, a Republican who represents Tulsa County, told the Associated Press he hopes the Oklahoma measure could eventually lead to the overturning of Roe v. Wade, the landmark 1973 Supreme Court decision that recognized a woman’s right to an abortion.

The Oklahoma State Medical Association, which has called the measure “troubling,” said it would not take a position on the legality of abortion. However, the group said that it would “oppose legislation that is designed to intimidate physicians or override their medical judgment.”

Ever the sentencing nerd, I found it interesting and notable that Oklahoma would seek to outlaw abortion and make it a felony offense, but then attach to it a mandatory minimum prison sentence of only one year and a mandatory prison maximum of three years. After a little digging, I found the full text of the passed Oklahoma bill going to the Gov here, and I discovered these intriguing criminalization/sentencing terms used to apply only to a prohibition on abortions being performed by anyone other than a licensed physician.  But the new bill, as shown below, deletes the language that allows licensed physicians to be excluded from this criminal prohibition:

SECTION 3. AMENDATORY 63 O.S. 2011, Section 1-731, is amended to read as follows:

Section 1-731. No person shall perform or induce an abortion upon a pregnant woman unless that person is a physician licensed to practice medicine in the State of Oklahoma. Any person violating this section shall be guilty of a felony punishable by imprisonment for not less than one (1) year nor more than three (3) years in the State Penitentiary.

Prior (arguably) related post:

May 19, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Two interesting intricate criminal justice rulings from SCOTUS (including a first-ever casebook cite in Betterman!)

The Supreme Court release three opinions this morning, two of which are criminal justice cases. Here are the most essential basics with links via How Appealing:

1. Justice Elena Kagan delivered the opinion of the Court in Luna Torres v. Lynch, No. 14-1096. Justice Sonia Sotomayor issued a dissenting opinion, in which Justices Clarence Thomas and Stephen G. Breyer joined. You can access the oral argument via this link.

2. Justice Ruth Bader Ginsburg delivered the opinion for a unanimous Court in Betterman v. Montana, No. 14-1457. Justice Thomas issued a concurring opinion, in which Justice Samuel A. Alito, Jr. joined. And Justice Sotomayor also issued a concurring opinion. You can access the oral argument via this link.

Statutory interpretation fans will be most interested in the ruling, but sentencing fans will be focused on the Betterman ruling. It gets started this way:

The Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” Does the Sixth Amendment’s speedy trial guarantee apply to the sentencing phase of a criminal prosecution?  That is the sole question this case presents.  We hold that the guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges.  For inordinate delay in sentencing, although the Speedy Trial Clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments.  Petitioner Brandon Betterman, however, advanced in this Court only a Sixth Amendment speedy trial claim.  He did not preserve a due process challenge.  See Tr. of Oral Arg. 19.  We, therefore, confine this opinion to his Sixth Amendment challenge.

Because I would like to see the Due Process Clause play bigger role in regulating sentencing matters, I am inclined to like the Betterman ruling. And, as the title of this post highlights, I definitely linked this passage from the majority opinion for an obvious personal reason:

[A] central feature of contemporary sentencing in both federal and state courts is preparation by the probation office, and review by the parties and the court, of a presentence investigation report. See 18 U. S. C. §3552; Fed. Rule Crim. Proc. 32(c)–(g); 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §26.5(b), pp. 1048–1049 (4th ed. 2015) (noting reliance on presentence reports in federal and state courts). This aspect of the system requires some amount of wholly reasonable presentencing delay.8 Indeed, many — if not most— disputes are resolved, not at the hearing itself, but rather through the presentence-report process.  See N. Demleitner, D. Berman, M. Miller, & R. Wright, Sentencing Law and Policy 443 (3d ed. 2013) (“Criminal justice is far more commonly negotiated than adjudicated; defendants and their attorneys often need to be more concerned about the charging and plea bargaining practices of prosecutors and the presentence investigations of probation offices than . . . about the sentencing procedures of judges or juries.”); cf. Bierschbach & Bibas, Notice-and-Comment Sentencing, 97 Minn. L. Rev. 1, 15 (2012) (“[T]oday’s sentencing hearings . . . rubber-stamp plea-bargained sentences.”).

May 19, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, May 17, 2016

"How to solve the biggest issue holding up criminal justice reform: Republicans and Democrats can't agree on 'mens rea' reform. Here's a middle ground."

The title of this post is the headline of this notable new Politico commentary authored by Professor Alex Sarch. Here are excerpts:

Despite gridlock and the distraction of a presidential election, Congress hoped to pass legislation this year that would overhaul our flawed criminal justice system. But with the election approaching, that hope is rapidly disappearing over disagreements on one controversial issue: “mens rea reform.”

“Mens rea” — Latin for “guilty mind” — refers to requirements in criminal law that concern a defendant’s mental state, like the intent to cause harm or knowledge of what one was doing. Republicans have demanded that criminal justice reform also make such requirements in federal law stricter, forcing prosecutors in many cases to prove that defendants knew they were breaking the law. Democrats have balked at the proposed reforms, arguing that they would make it much harder to prosecute corporate executives for white-collar crimes.

Both sides have a point. Mens rea reform can increase clarity in the law and make unfair prosecutions less likely. But the Republican proposals, in both the House and Senate, are so strict that they would insulate many highly culpable actors from conviction. Instead of allowing the mens rea issue to derail criminal justice reform, lawmakers should agree on a middle ground that imposes a simple default mens rea requirement — knowledge of the facts constituting the offense. Such an agreement would improve our criminal law and pave the way for comprehensive criminal justice reform....

Late last year, Republicans introduced bills in the House and Senate to reform the mens rea requirements in federal law. But both bills have significant flaws that may actually create more confusion and protect culpable actors. Since courts already presume that criminal statutes include a mens rea requirement, an ill-conceived mens rea policy would be worse than the status quo.

The Senate bill would make it too hard to convict culpable actors because it says that for crimes without an explicit mens rea requirement, prosecutors must prove willfulness — defined as “knowledge that the person’s conduct was unlawful.” This standard has scary implications.... [W]hy should we immunize the bank executive who knew full well he was issuing misleading public statements, but who just happened to be unsure whether his actions were criminal (perhaps because he didn’t make time to research it)? For this reason, Department of Justice officials and other policy groups have criticized the proposed mens rea reform bills for making it harder to prosecute corporate crime.

The Senate bill does include an important exception for statutes to which Congress affirmatively intended no mental state requirement to apply. Moreover, the bill would not change any mental state elements established by Supreme Court precedent (though notably not precedent from Federal Courts of Appeals). However, these provisions do not make up for the bill’s dangerous new willfulness standard.

The House bill has been criticized as confusing, but it is a less extreme proposal than the Senate bill. It generally requires only knowledge of the facts constituting the offense as the default mental state requirement. In addition, when it comes to crimes that a reasonable person would not know to be illegal — largely crimes in technical areas like securities, tax or environmental law — the government would also have to prove that “the defendant knew, or had reason to believe, the conduct was unlawful.” In other words, it would have to show that they 1) knew the facts constituting the offense and 2) should have known their conduct was illegal. This means that mere negligence as to illegality would suffice for these crimes.

So for a bank executive accused of accounting fraud, for example, the government would only have to show that she 1) knew what she was doing (i.e., making false statements) and 2) should have known — based on her experience and professional role — that her actions were illegal.... However, the House bill has two problems. First, unlike the Senate bill, it does not make exceptions for statutes that courts have already interpreted to include a mens rea element or for statutes that Congress clearly intended to have no mental state requirement. Second, the bill makes it easier for culpable actors to escape liability by claiming ignorance of the law. Those accused of a technical crime could avoid punishment by claiming they didn’t realize their actions were illegal and that it wasn’t their responsibility to find out.

However, these problems can easily be fixed: Congress should add exceptions to the House bill and adopt regular knowledge as the default mens rea. Effectively, this deletes the second requirement from the House bill. In other words, for technical crimes, the government would not have to prove a defendant should have known his conduct was illegal, just that it was illegal and that the defendant knew the circumstances of the action. This knowledge standard would not make ignorance of the law any kind of excuse. Such a modest proposal should be an acceptable compromise, as it is only a small departure from the House bill. Republicans are right that the lack of clear mental state requirements in federal statutes lets courts interpret the law in uneven and unpredictable ways. But their proposed reforms would make it too hard to convict culpable actors. Instead, lawmakers should agree on a simple default mens rea — like the House bill’s basic requirement of knowledge of the facts. Such changes would provide clarity for courts and break the political logjam blocking criminal justice reform.

Though I appreciate this effort to find a mens rea middle ground that might help create more consensus on criminal justice reforms in Congress, I continue to feel strongly that those who oppose the incorporation of a high mens rea requirement in federal criminal laws to be misguided. Put simply, I really do not see any "scary implications" of having a high mens rea requirement for federal criminal offenses given that our massive regulatory state already has no shortage of civil laws (with significant penalties) that do not require showing mens rea.

May 17, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (9)

Monday, May 09, 2016

Former federal drug warriors assail sentencing reform efforts because "drug dealing is a violent crime"

William J. Bennett, the director of drug control policy for President George H. W. Bush, and John P. Walters, the director of drug control policy for President George W. Bush, have this notable new Washington Examiner op-ed headlined "Drug dealing is a violent crime."  Here are excerpts:

The Sentencing Reform and Corrections Act now before Congress is based on a lie — that drug dealing is not a violent crime.  Americans have been told this lie for years even as we witness the violence and death caused by drug dealers in our communities.  Now, this lie is propelling legislation through Congress that will destroy more lives.

As former directors of the Office of National Drug Control Policy, we carry a particular responsibility to speak up when so many who should know better claim that drug trafficking has been treated too harshly under federal law.

Claims by President Obama and others that federal prisons are filled with "nonviolent drug offenders" and that drug dealing is a "victimless crime" are grotesquely dishonest.  How can the drug trade be victimless when most Americans know a victim?  How can it be non-violent when we witness the carnage every night on the local news?...

In the federal prison system, 99.5 percent of those incarcerated for drug convictions are guilty of serious trafficking offenses.  And according to a Bureau of Justice Statistics study of state drug inmates, 77 percent reoffend within five years of release, with 25 percent committing violent offenses.  Most of these convicted drug dealers are career criminals with long rap sheets.  By softening punishments for these traffickers, as this legislation does, Congress would give convicted dealers shorter sentences and early release causing destruction to communities across America. Moreover, this push to release experienced traffickers is occurring at the same time our nation is enduring a 440-percent increase over the past seven years in heroin overdose deaths.

Drug dealing is inseparable from violent victimization.  Illegal drugs kill tens of thousands each year in overdose deaths.  More die in violent acts and accidents under the influence of drugs.  Still more die slowly of blood-borne diseases contracted through injection drug use and through high-risk behavior while under the influence of drugs, including prostitution to support addiction.  Street-level dealers look into the eyes of these victims daily as they take addicts' money and foster their self-destruction.  Traffickers at levels above the street know this reality and take their wealth from it, spreading death across neighborhoods and across the globe....

Considering all that America knows about drug addiction, only the dishonest or willfully blind can claim that drug trafficking is a non-violent crime.  Drug dealing depends on addiction; addicts consume the vast majority of the drug supply; the dealer cultivates users to create more addicts in a murderous cycle.

Drug dealers know drugs will eventually impair judgment and bend free will, altering personality and poisoning bonds to loved ones.  We know drug use and addiction degrade millions of lives — impairing education, employment and parenthood.  Drugs are at the root of much of the child abuse, endangerment and domestic violence perpetrated against the innocent.

But the destruction is much wider. Addiction and drug dealing ravage whole communities, urban and rural.  We need look no further than the daily reports of the heroin epidemic today, or the still-vivid memories of the meth epidemic and the crack epidemic.  Drug dealing makes whole neighborhoods war zones, places of economic blight and large-scale victimization.  There is no greater single source of actual harm to Americans today — none.  The cost of incarcerating drug dealers is small compared to the true cost of their crimes to society.

Knowing this, it is an utterly irresponsible effort to release experienced drug dealers from federal prison before they have completed their just sentences, arguing they are merely misguided business people or desperate individuals caught up in an unfair system.  The truth about drug dealing is this: It requires cruelty and willful indifference to the visible suffering inflicted on others — over and over again — harming individuals, families and whole communities.

May 9, 2016 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10)

Wednesday, May 04, 2016

"Should His PTSD Keep Him From Death Row?"

The question in the title of this post is from the second part of the headline of this Mother Jones article.  The first part of the headline explains "An Ex-Marine Killed Two People in Cold Blood," and here is how the piece starts:

At 12:44 p.m. on March 6, 2009, John Thuesen called 911. "120 Walcourt Loop," he told the dispatcher, breathing hard. "Gunshot victims." The dispatcher in College Station, Texas, asked what had happened. "I got mad at my girlfriend and I shot her," he said. "She has sucking chest wounds…"

He'd not only shot Rachel Joiner, 21, but also her older brother Travis.  Thuesen had broken into the house after midnight, not sure what he'd do but wanting to see his estranged girlfriend.  She was out with her ex-boyfriend, but when she returned later that morning, things "got out of hand."  Thuesen, a 25-year-old former Marine reservist, called 911 and almost immediately expressed remorse.  When he was arrested, he repeatedly asked the police about the victims and tried to explain why he'd kept shooting Rachel and her brother: "I felt like I was in like a mode…like training or a game or something."

The prosecution in the case gave its opening statement on May 10, 2010. With DNA evidence and no other suspects, it only took prosecutors three days to make their case.  Over the next week, the defense team touched on the facts that Thuesen suffered from depression and post-traumatic stress disorder (PTSD) from his service in Iraq, but pleaded for leniency in his sentence. None of that swayed the jury: On May 28, 2010, he was sentenced to death.

While on death row, Thuesen was given new lawyers, death penalty experts from the state's Office of Capital and Forensic Writs.  In Texas, there are often two trials, one to determine guilt or innocence and the second to determine sentencing.  Lawyers argued in their 2012 petition to have both the death penalty and the conviction vacated, and for a new sentencing trial, arguing that if his lawyers had served him adequately, "John Thuesen would not be on death row today, awaiting an execution date." In July 2015, Judge Travis Bryan III — the same judge who had presided over the criminal trial — agreed, and ruled that Thuesen's lawyers hadn't adequately explained the significance of his PTSD to jurors, and how it had factored into his actions on the day of the murders.  Bryan also ruled that Thuesen's PTSD wasn't properly treated by the Veterans Health Administration.  He recommended that Thuesen be granted a new punishment-phase trial.  The Texas Court of Criminal Appeals could rule on Bryan's recommendation at any time.

The ruling on his case has implications for a question that has concerned the military, veterans' groups, and death penalty experts: Should service-related PTSD exclude veterans from the death penalty?  An answer to this question could affect some of the estimated 300 veterans who now sit on death rows across the country, according to the Death Penalty Information Center.  But it's unclear how many of them suffer from PTSD or traumatic brain injuries, given how uneven the screening for these disorders has been.

Experts are divided about whether veterans with PTSD who commit capital crimes deserve what is known as a "categorical exemption" or "exclusion."  Juveniles receive such treatment, as do those with mental disabilities.  In 2009, Anthony Giardino, a lawyer and Iraq War veteran, argued in favor of this in the Fordham Law Review, writing that courts "should consider the more fundamental question of whether the government should be in the business of putting to death the volunteers they have trained, sent to war, and broken in the process" who likely would not be in that position "but for their military service."  In a 2015 Veterans Day USA Today op-ed, three retired military officials argued that in criminal cases, defense attorneys, prosecutors, and judges often don't consider veterans' PTSD with proper due diligence.  "Veterans with PTSD…deserve a complete investigation and presentation of their mental state by the best experts in the field," they wrote.

That idea is utterly unacceptable to Kent Scheidegger of the Criminal Justice Legal Foundation, a California-based victims-of-crime advocacy group, who contends a process already exists for veterans' defense attorneys to present mitigating evidence.  To him, a categorical exclusion would be an "extreme step" that would mean "one factor — always, in every case — necessarily outweighs the aggravating factors of the case, no matter how cold, premeditated, sadistic, or just plain evil the defendant's actions may have been."

May 4, 2016 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, May 03, 2016

Former New York Assembly speaker gets lengthy (way-below guideline) federal sentence for corruption

This Wall Street Journal article reports on today's notable sentencing of a notable crooked New York politician under the headline "Sheldon Silver Sentenced to 12 Years: The former New York state Assembly Speaker also was ordered to pay a $1.75 million fine." Here are the details on this sentencing (and related others to come):

Sheldon Silver was sentenced to 12 years in prison on Tuesday, making the former New York Assembly speaker one of the most powerful politicians in the state to be given time behind bars. U.S. District Judge Valerie Caproni, who also ordered Mr. Silver to pay a fine of $1.75 million and forfeit about $5.3 million he reaped from the criminal schemes of which he was convicted, said she hoped the punishment would serve as a deterrent.

“I hope the sentence I impose on you will make other politicians think twice, until their better angels take over,” said Judge Caproni. “Or, if there are no better angels, perhaps the fear of living out ones golden years in an orange jumpsuit will keep them on the straight and narrow.”

In a brief statement before the sentence was announced, Mr. Silver, 72 years old, said he had let down his family, colleagues and constituents. “I’m truly, truly sorry for that,” said Mr. Silver, who was found guilty in November of honest-services fraud, extortion, and money laundering.

Prosecutors had asked Judge Caproni for a sentence greater than any previously imposed on a New York legislator convicted of public corruption, a term that court filings suggest was 14 years. Federal sentencing guidelines suggested a range from about 22 to 27 years. Judge Caproni said Tuesday that imposing such a sentence in this case would be “draconian and unjust” given Mr. Silver’s age.

Prosecutors said Mr. Silver used his public position and power to obtain millions of dollars in kickbacks and bribes. Mr. Silver’s schemes were “multifaceted and nefarious,” Assistant U.S. Attorney Carrie Cohen said before the sentence was announced Tuesday. Ms. Cohen said Mr. Silver needed a significant prison term that reflects the public toll of his crimes and the need to deter similar conduct in Albany. “His conviction caused unparalleled damage: to our political systems, to the public’s belief in our state government,” she said.

Attorneys for Mr. Silver questioned the benefit of sending him to prison, and described their client as a committed public servant who already had suffered an extraordinary fall from grace. “He is already crushed,” attorney Joel Cohen said Tuesday. “He’s been devastated by everything that occurred over the last year and a half.”...

The conviction of Mr. Silver, a Manhattan Democrat who served as speaker for more than two decades, was a significant victory for Manhattan U.S. Attorney Preet Bharara, who has aggressively pursued public-corruption cases. “His crimes struck at the core of democratic governance — a man with unparalleled power over the affairs of New York State was secretly on the take, abusing all that power to enrich himself and prevent anyone from learning about his corrupt schemes,” prosecutors from Mr. Bharara’s office wrote in sentencing documents. “Today’s stiff sentence is a just and fitting end to Sheldon Silver’s long career of corruption,” Mr. Bharara said in a statement.

Two of Mr. Silver’s former Albany colleagues are expected to be sentenced later this month. Former state Senate Majority Leader Dean Skelos, who in December was found guilty of public-corruption charges including conspiracy, bribery and extortion, is scheduled to be sentenced on May 12. Former state Sen. John Sampson, who was found guilty in July of obstruction of justice and making false statements to investigators, is scheduled to be sentenced in Brooklyn federal court on May 19.

Prior related post:

May 3, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (5)

Monday, May 02, 2016

At SCOTUS, "age-old principes of conspiracy law" produces brand new division of Justices

More than six months after oral argument, the Supreme Court this morning finally released its opinion in Ocasio v. United States, No. 14-361 (S. Ct. May 2, 2016) (available here), which concerns the application of a federal conspiracy law surrounding extortion. Justice Alito wrote the opinion for the Court, and here is how it gets started:

Petitioner Samuel Ocasio, a former officer in the Baltimore Police Department, participated in a kickback scheme with the owners of a local auto repair shop.  When petitioner and other Baltimore officers reported to the scene of an auto accident, they persuaded the owners of damaged cars to have their vehicles towed to the repair shop, and in exchange for this service the officers received payments from the shopowners.  Petitioner was convicted of obtaining money from the shopowners under color of official right, in violation of the Hobbs Act, 18 U. S. C. §1951, and of conspiring to violate the Hobbs Act, in violation of 18 U. S. C. §371. He now challenges his conspiracy conviction, contending that, as a matter of law, he cannot be convicted of conspiring with the shopowners to obtain money from them under color of official right. We reject this argument because it is contrary to age-old principles of conspiracy law.

Few should be surprised that Justice Alito in Ocasio was not moved by a criminal defendant's effort to make more challenging pursuit of a conspiracy charge (a type of crime Judge Learned Hand famously describes as the "darling of the modern prosecutor's nursery").  But I was certainly surprised with how the votes of the other seven Justices broke down:

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

Because I do not spend all that much time thinking about either extortion or conspiracy, I doubt I will have much more to say about Ocasio. But I would be grateful to hear from readers in the comments as to whether they think this opinion was worth the wait and/or whether the unusual divides of the Justices has a possible significance beyond this one case.

May 2, 2016 in Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Reviewing the type of federal drug case that the SRCA should most impact

Mandatory_minimums_1abe826ceaaedee05283c916fe4b2585.nbcnews-ux-600-480This lengthy new NBC news piece, headlined "As Drug Sentencing Debate Rages, 'Ridiculous' Sentences Persist," focuses on one notable federal drug defendant subject to a notable federal drug mandatory minimum that could be impacted by federal statutory sentencing reform. Here are excerpts:

When he was an addict and petty criminal, Leo Guthmiller knew little, and cared less, about the federal government's harsh drug sentencing laws. The worst he'd endured was 90 days at the county lockup in Lincoln, Nebraska.

Then, last April, nearly two years after he'd stopped popping painkillers and smoking methamphetamine, Guthmiller was arrested by two federal agents as he headed for a drug counseling session. He later learned why: a junkie and his girlfriend, facing stiff prison sentences, had told investigators that Guthmiller had introduced them to his meth dealer around the time he was getting sober. That made him the middleman in a street-level drug distribution scheme.

Because this was a federal case, and the amount of meth exceeded 500 grams, or 1.1 pounds, Guthmiller was suddenly facing at least 10 years behind bars as a co-conspirator.... The charge thrust him, unwittingly, into a raging debate over a pillar of America's war on drugs: mandatory-minimum sentences. Intended to sideline high-level traffickers, the laws have been used to sweep thousands of nonviolent, small-time offenders into epic prison terms....

Guthmiller didn't dispute the couple's accusation. But he bristled at the government's portrayal of him as a scheming operative. Besides, he was a changed man: sober, working, studying for his GED, leading AA meetings, completing a drug court program, newly married. Still, he pleaded guilty, unwilling to risk a trial that could end in an even longer prison term. "I'm not an innocent person, but at the same time this is all a bit much, I feel," Guthmiller told NBC News.

At his sentencing in mid-February, U.S. District Court Judge John Gerrard agreed. He praised Guthmiller's turnaround, but said federal drug statutes gave him no choice. He called the case "Exhibit A" on why Congress needed to pass The Sentencing Reform and Corrections Act, which would give judges more flexibility. "A 10-year mandatory minimum sentence in a case like this is absolutely ridiculous," Gerrard said from the bench. "And the only reason I am imposing the sentence that I am imposing today is because I have to."...

The judge's remarks caught the attention of the Washington, D.C., advocacy group Families Against Mandatory Minimums. As he prepared to spend the next decade behind bars, Guthmiller found himself cast as a case study in America's unforgiving drug laws. "The whole idea is these 10-year sentences were written by Congress to go after serious drug offenders, and they're being applied to a guy who is home and is going to drive himself to prison," said Kevin Ring, the group's vice president. "He obviously isn't this major criminal that everyone should be so scared of."

This is a key point in the drug-law reform effort, which has inspired an unlikely alliance among Democrats and Republicans, many of whom gathered at the White House last week to discuss their campaign. Mandatory minimum sentences, toughened during 1980s crime panics, established criteria under which judges had to impose lengthy prison terms for drug trafficking. The penalties depended on the type of drug, the amount of it, the offender's criminal history and the nature of the crime — including whether the offense involved violence, weapons or children. The new laws triggered an explosion in the U.S. prison population, contributing to a dramatic decline in crime rates but also costing taxpayers millions.

That cost-benefit balance has since tipped. Researchers now say that mass incarceration's impact on the crime rate has ebbed. Studies show that the likelihood of punishment, rather than the length of a prison sentence, is more likely to deter criminals. And there are now millions of nonviolent ex-offenders — a disproportionate number of whom are black — unable to contribute to the economy, including many who return to crime. Reformers argue that the money America spends on prisons would be better used for cops, schools and alternatives to jail, such as probation and drug courts.

In a 2011 report to Congress, the U.S. Sentencing Commission found that mandatory minimums focused too heavily on the amount of drugs and not enough on the offender's role in the trafficking operation. The commission has since loosened some of its guidelines retroactively, allowing thousands of nonviolent, low-level drug offenders to leave prison early. President Barack Obama joined the effort by granting clemency to many others.

Those moves are considered Band-Aids compared to the larger fix offered by the Sentencing Reform Act, legislation that would allow judges to impose shorter prison terms for bit players. But the bipartisan bill is bogged down by election-year politics. The Justice Department, meanwhile, has tried to change the system from within, ordering federal prosecutors to focus on high-level dealers. It appears to be working: the number of mandatory-minimum cases has dropped to 45 percent of all federal drug cases, down from 66.8 percent in 2007.

John Higgins, chief of the narcotics unit at the U.S. Attorney's Office in Nebraska, said in a statement that his prosecutors followed the Justice Department's advice, seeking mandatory minimums "only in those cases that warrant it." That included Guthmiller's, he said. He declined to go into detail, but pointed to court hearings in which prosecutors alleged that Guthmiller's 2013 matchmaking between the dealer and the couple led to the sale of 15-pounds of meth. "Methamphetamine is the number one drug threat in Nebraska," Higgins said.

May 2, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Another prominent elderly corrupt politician presenting dynamic federal sentencing issues

NY-DK527_NYCHAR_11U_20150122183914This lengthy Wall Street Journal article, headlined "Sheldon Silver Set to Be Sentenced: Judge has wide leeway as prosecution asks for long prison term, and defense seeks leniency for the former Assembly speaker," reports on issues surrounding a high-profile politician's federal sentencing scheduled for tomorrow in New York. Here are excerpts:

A federal judge is expected to decide Tuesday whether former New York state Assembly Speaker Sheldon Silver deserves a long prison sentence for years of corruption, or leniency because he is ill and says he is sorry.

Leading up to the decision, lawyers for Mr. Silver have filed letters of support from ex-colleagues, constituents, family members and even a former employee at a Chinese restaurant he frequented. “I know that Sheldon Silver has been convicted, but please consider his kind personality and his support to the community,” wrote Fei Chen, who was a cook at Nom Wah Tea Parlor in Manhattan’s Chinatown.

The endorsement is part of a trove of materials from both the prosecution and defense that reflect the range of factors judges are supposed to consider in public-corruption cases and the latitude they have in deciding on punishment. Judges in cases like Mr. Silver’s grapple with how to account for breaking the public trust, and to what extent a sentence should serve as a deterrent to future crime.

Mr. Silver, a Manhattan Democrat who served as Assembly speaker for more than two decades, was convicted of honest-services fraud, extortion and money laundering. Prosecutors said Mr. Silver, 72 years old, netted about $4 million in kickbacks from schemes involving a real-estate company and an oncologist. Attorneys for Mr. Silver have said they would appeal.

Prosecutors have asked U.S. District Judge Valerie Caproni for a prison sentence greater than any previously imposed on legislators convicted of public corruption in the state. Court filings suggest the longest sentence for such an official was 14 years. “Silver exploited the vast political power entrusted in him by the public to serve himself,” prosecutors wrote.

Defense lawyers have asked for leniency, suggesting “rigorous community service.” The former legislator also wrote an apology letter to the judge. “I failed the people of New York,” Mr. Silver’s letter said.

U.S. law says judges should decide sentences based not only on the offense, but also the defendant’s “history and characteristics.” Also relevant, the law says, are deterrence, public protection and the needs of the defendant, including medical care. In court filings, Mr. Silver’s lawyers have highlighted his prostate cancer, bile-duct obstruction and knee problems.

For judges, sentencing in public-corruption cases presents a particular quandary: While the convicted official usually isn’t considered a threat to public safety, or capable of committing the same crimes in the future, the government has an incentive to punish such officials harshly to deter others from similar offenses.

“The difficulty you have in high-profile cases is that there is a philosophical argument that general deterrence sometimes trumps all other factors,” said Benjamin Brafman, a defense attorney not connected to the Silver case who represented Carl Kruger, a former state senator who was convicted on public-corruption charges and sentenced to seven years.

In the case of Mr. Silver, Judge Caproni can also consider prosecutors’ evidence that Mr. Silver used his position to help two women with whom he had extramarital affairs because, like the letters, it speaks to his character. In legal filings, attorneys for Mr. Silver said the allegations were unproven.

In recent years, public-corruption cases have garnered more attention, particularly because prosecutors have become increasingly vocal when bringing charges, said Deborah Gramiccioni, executive director of NYU’s Center on the Administration of Criminal Law. “The public’s indignation perhaps seems more pronounced,” said Ms. Gramiccioni, a former federal prosecutor who worked on public-corruption cases. But such indignation doesn’t necessarily influence judges’ decisions, she said....

Data show that New York judges often diverge from the federal guidelines when awarding prison sentences. Of 3,301 cases sentenced in federal court in New York in fiscal 2015, judges awarded sentences within the guideline range in 29.5% of cases, compared with 47.3% nationwide, according to federal statistics. Of 544 fraud cases in New York, 28.5% of sentences fell within the guidelines. Just five people received sentences above the guideline range.

In Mr. Silver’s case, sentencing guidelines suggest a range from about 22 to 27 years. In sentencing filings, both prosecution and defense attorneys cite many of the same public-corruption cases, including that of Mr. Kruger, the former state senator. Attorneys for Mr. Silver note that Mr. Kruger was sentenced to well below the federal recommendations. But prosecutors note that Mr. Kruger pleaded guilty, which they view as a crucial difference. “Unlike Kruger, here Sheldon Silver has accepted no responsibility and shown no remorse for his crimes,” they said.

May 2, 2016 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, April 28, 2016

"A Legal Definition of Leadership: Understanding Section 3B1.1 of the Federal Sentencing Guidelines"

The title of this post is the title of this new paper now available via SSRN authored by Marin Roger Scordato. Here is the abstract:

This Article offers a formal legal definition of “leadership” drawn from an unusual quarter: criminal sentencing. Sentencing guidelines that include adjustments based on the extent to which a defendant was a “leader” have spawned hundreds of appellate court cases attempting to develop a thoughtful, workable definition of the term. Reviewing these cases, this Article offers 25 separate characteristics courts have found material to a legal judgment as to whether an individual has been a leader within a criminal enterprise.

Eleven of these characteristics can be organized into three categories, which operate on the boundaries of the leadership concept.  The first category contains those circumstances courts have found do not, by themselves, confer leadership status.  For example, courts have found that controlling property alone does not make one a leader.  The second category of leadership characteristics are those circumstances that are not, in themselves, sufficient to show a defendant is not a leader.  For example, there may be more than one leader in a group, so the identification of one or more other leaders in a group does not preclude the possibility of characterizing a defendant as a leader as well.  A third category of leadership focuses on the external group functions of leadership, the ways in which a leader monitors and mediates the points of contact between the group as a separate entity and important elements outside the group.

The remaining 14 characteristics comprise a fourth category that resides at the center of what courts find establishes leadership status. To courts, the gravamen of leadership is the control, organization, and responsibility for other group members.  Examples of characteristics in this category are that a leader inspires members to make sacrifices for the group, possesses decision-making authority within the group, carries ultimate responsibility for the group’s success, and resolves disputes within the group.

This Article concludes by noting this formal legal definition of leadership, given its basis in criminal sentencing, has generated a set of leadership characteristics all of which appear to enjoy the possibility of general applicability to a broad range of factual contexts including standard business settings, but still notes how very far the formal legal definition of leadership is from conventional definitions grounded explicitly in a moral, value-laden context.

April 28, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Wednesday, April 27, 2016

Reviewing the final SCOTUS oral argument week that was full of criminal justice issues

As noted in this post last week, three of the final five cases that the Justice were scheduled to hear during this last week of the Term's oral arguments involved criminal justice issue.  The highest-profile and perhaps most consequential of these cases was argued today  concerning the public corruption verdict against former Virginia Gov Bob McDonnell.  Thanks to the always great folks at SCOTUSblog, I can link here to two posts about the McDonnell and to single post on the two other cases heard yesterday:

April 27, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Former House speaker gets black hole of federal prison for 15 months after sentencing supernova

In this post yesterday, I explained why I called today's sentencing of former House Speaker Dennis Hastert a sentencing supernova. Today, this ABC News piece reports on the sentencing events and outcome in federal court this morning:

Former Speaker of the House John Dennis Hastert was sentenced today in federal court to 15 months in prison and two years of supervised release after he faced one of his accusers, who identified himself publicly for the first time as Scott Cross, a former Yorkville High School wrestling student.

Cross, who was until now identified in court documents only as “Individual D,” took the stand and introduced himself as a father, husband and businessman. Cross described his abuse by Hastert as “his darkest secret as he [Hastert] became more powerful.”

Hastert has also been required to comply with a sex offender treatment program. The sentence follows an almost year-long hush money case hinging on payments Hastert made to a student he allegedly sexually abused while acting as a wrestling coach at Yorkville High School in Illinois.

Cross said Hastert had "offered massages" to him in order to help him lose weight. He went on to describe a one-time incident when he was 17, saying Hastert "grabbed my penis and began to rub me. Stunned, I pulled up my shorts and ran out of the locker room.” Cross said he decided to testify after Hastert and his defense team reached out to his brother, Illinois politician Tom Cross, for a letter of support. Tom Cross served in the Illinois House of Representatives for 22 years. Scott Cross was on the varsity wrestling team at Yorkville High School when Hastert was a coach in the 1970s.

Using a walker, Hastert approached the judge. “I am deeply ashamed to be standing here today,” he said. “I know I am here because I mistreated some of my athletes that I coached. ... I want to apologize to the boys I mistreated. I was wrong and I accept that.” Judge Durkin referred to Hastert as a "serial child molester" while delivering the sentence.

The man formerly second in line for the presidency was wheeled into court this morning by attendants. In a January court filing, Hastert’s lawyers revealed that the former speaker’s health had rapidly declined following a stroke and a blood infection, and that he now needed “assistance for most daily activities.” Hastert technically faced a maximum penalty of five years.

Dozens of Hastert’s supporters have written letters to the judge asking for mercy, including former Republican Congressional leader Tom Delay, who called Hastert “a man of integrity. He loves and respects his fellow man.” CIA Director Porter Goss called Hastert “a rock solid guy with center-of-the country values.”

Hastert pleaded guilty in October to violating bank laws in connection with paying out hush money over the years allegedly to one of his victims, and in April his defense team made a filing publicly acknowledging the “harm” he caused to “others” for “misconduct that occurred decades ago.”

April 27, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8)