Sentencing Law and Policy

A final take on a record-setting federal corruption sentence

This Roll Call article, whic is headlined "Jefferson’s Sentence Is a Record-Setter," provides some post-game commentary on this past Friday's federal sentencing of William Jefferson.  Here are a few highlights:

A freezer full of cash made ex-Rep. William Jefferson a national punch line, and a federal judge on Friday made him a record-holder: The 13-year prison sentence given to the Louisiana Democrat is the longest ever handed down to a former Member of Congress....

Ex-Rep. Duke Cunningham (R-Calif.), who pleaded guilty in March 2006 to accepting more than $2.4 million in bribes from defense contractors, as well as tax evasion and fraud, is serving an eight-year, four-month sentence in a federal penitentiary in Tucson, Ariz.  Prior to Jefferson’s sentencing, Cunningham had the distinction of receiving the longest prison term for a former lawmaker. He is scheduled to be released in June 2013.

At least three other former House Members have also completed their terms of incarceration in federal prisons in the past year or so, including ex-Reps. Jim Traficant (D-Ohio), Bob Ney (R-Ohio) and Frank Ballance (D-N.C.)....

In court documents, [defense lawyers] cited a litany of other previously incarcerated lawmakers, part of an effort to limit Jefferson’s term to no more than 10 years.... [But] federal prosecutors recommended Jefferson receive a prison term of up to 33 years, asserting his “crimes against the people of the United States were exceptional in their sheer number, length, and breadth.”

In addition to all its political dimensions, this case also spotlights the distorting nature of the federal sentencing guidelines and post-Booker sentencing statistics.  Though Jefferson received a record-setting long sentence and is now scheduled to be incarcerated until he turns 75-years-old, his sentence will be recorded as a below-guideline Booker variance in which the judge gave a sentence less than half as long as what was recommended by the guidelines.  In other words, in a post-Booker world with inflated federal sentencing guidelines, even a record-long sentence is coded as very lenient.

Florida state judge reduces homicide sentence based on "battered spouse syndrome"

This notable local sentencing story, which is headlined "Davie woman gets five-year sentence for fatal shooting: Woman gets 5 years for killing man who abused her," reports on a sentencing reduction a judge granted based on "battered spouse syndrome."  Here are the details:

Physically, sexually and emotionally dominated by a hulking man who gave her drugs in exchange for sex, Lisa Marie Romero's breaking point came when he threatened her three children's safety.

Romero, 39, shot Frank Don Alvarez, 61, in the back of the head with a rifle and left him dead, face down in an industrial area north of Davie Boulevard near Interstate 95, on Nov. 17, 2006.

Finding that Romero suffered from battered spouse syndrome, Broward Circuit Judge Ilona Holmes on Thursday cast aside sentencing guidelines that called for a 10- to 30-year sentence and sent Romero to prison for five years.

Incensed by the light sentence, Alvarez's son, John, 44, stormed out of the courtroom. "Put it this way, I will get my justice when she gets out of prison," he said, pacing in the courthouse hallway. "She will find out."

He had not yet heard that the judge also gave Romero credit for the nearly three years she had spent in jail awaiting trial. Prison will be followed by 10 years of probation.

Influenced by opinions from two psychologists who found that Alvarez abused Romero, state prosecutor Al Ribas downgraded a charge of first-degree murder to manslaughter with a firearm. In September, Romero pleaded guilty to that charge.

Effective commentary complaining about undue leniency for drunk drivers

This column in the Baltimore Sun, which is headlined "Not just 'liberals' to blame for drunk-driving tragedies," echoes the complains I have long had about our collective failure to be more effective in sentencing drunk drivers.  Here are snippets:

Liberal, conservative, moderate — judge, lawyer, defendant or next of kin, or state legislator — it doesn't matter.  When it comes to drunken driving in Maryland, and most of this country, we are almost all enablers.

Here's a number to consider: 25,120. That's the number of Marylanders who had three or more convictions for driving while intoxicated as of April 2008.  Mothers Against Drunk Driving came up with that figure, based on statistics from 20 states and the District of Columbia compiled last year by the National Highway Traffic Safety Administration....  Assuming most of them still drive — and that's a fairly safe assumption in this state, and one that MADD makes — that's a huge number of potential dangerous encounters for any of the rest of us who drive....

From what I've seen over the years — following drunk-driving and auto manslaughter cases in my own newspaper, and actually sitting in city and suburban courtrooms as defendants appear before judges — coddling of drunken drivers cuts across society.  It has not been liberalism at work in the making of laws and the setting of sentencing guidelines.  If anything, a libertarian philosophy has defied efforts to restrict those who drink and drive, from hard-core punishment (heavy fines and long jail sentences) to outright prohibitions on future driving....

We don't take the zero-tolerance approach.  You can get caught drinking while driving in Maryland and still drive a motor vehicle — if not immediately during a license suspension, then certainly in the near future.  Driving a motor vehicle is a privilege, but many view it as a right, or a right with a few inconvenient conditions once in a while.

Even the measure that many agree would be effective — requiring use of an ignition interlock device, a dashboard Breathalyzer that keeps a car from starting if the driver isn't sober — presumes that someone established as a danger will be allowed to drive again.  That's the reality, and I accept it. We don't have one-time loser laws for drunken drivers and probably never will.

So requiring the device would seem to make sense.  Eleven states made interlocks mandatory. Virginia, supposedly far more conservative than Maryland, mandated the devices for people who have had two convictions.... In Annapolis last winter, a similar requirement passed a Senate convinced of its potential effectiveness. But the measure never got out of a House of Delegates committee chaired by Joe Vallario, who in his other life is (can you guess?) a defense attorney.

Some related posts on sentencing drunk drivers:

• New York Times editorial calls for ignition locks for all drunk drivers
• State judge makes pitch for ignition locks for drunk drivers
• "Car breath tests for 1st-time DUI offenders?"
• Shouldn't we be much, much tougher with drunk drivers?
• Tougher (but still not tough enough?) on DUI
• Getting tougher on drunk driving
• Why do we worry so much more about sex offenders than drunk drivers?
• Technology versus toughness to combat drunk driving
• Undue leniency for drunk drivers?
• More discussion of leniency for drunk drivers
• Is capital punishment for drunk driving morally required?
• More examples of undue leniency shown to repeat drunk drivers
• "Some Coloradans drive until they kill" 

New York Times editorial calls for ignition locks for all drunk drivers

This morning's New York Times has this new editorial headlined "Progress on Drunken Driving."  Here are excerpts:

An enlightened measure signed this month by California’s Republican governor, Arnold Schwarzenegger, will require those convicted of drunken driving — including first-time offenders — to install special devices that prevent cars from operating if the driver is drunk.  The large pilot program, which covers the 14 million people living in Los Angeles, Sacramento and two other counties, adds important momentum to the national campaign by Mothers Against Drunk Driving to expand the use of the life-saving technology.

Mandating the ignition-interlock devices for all drunken-driving offenders is smart safety policy. Once installed, the vehicle will not start until the driver first blows into the device and registers an alcohol level below the legal limit. Offenders who commute to work by car can keep their jobs, but they cannot drink and drive....

There are 11 states that require both first offenders and repeaters to use ignition-interlock devices for an assigned period. Most programs were enacted in the past two years, and the data are still building. But for California, where recidivists make up more than a quarter of annual drunken-driving arrests, the dramatic results logged in New Mexico are encouraging.  Between 2004 and 2008, New Mexico experienced a 65 percent drop in drunken-driving recidivism.  Drunken-driving fatalities in the state dropped 35 percent.

California’s large-scale embrace of interlocks should help embolden lawmakers in states like New York, where similar proposals face predictable, shortsighted opposition from the alcohol industry. Congress should also take action by conditioning federal highway money on requiring ignition interlocks for all convicted drunken-driving offenders.

Like the NY Times, I am a big fan of this technocorrections approach to tackling the pernicious problems of drunk driving.  I hope that there will be continued positive results in jurisdictions like New Mexico that have been at the forefront of this form of technocorrections.

Some related posts on sentencing drunk drivers:

• State judge makes pitch for ignition locks for drunk drivers
• "Car breath tests for 1st-time DUI offenders?"
• Shouldn't we be much, much tougher with drunk drivers?
• Tougher (but still not tough enough?) on DUI
• Getting tougher on drunk driving
• Why do we worry so much more about sex offenders than drunk drivers?
• Technology versus toughness to combat drunk driving
• Undue leniency for drunk drivers?
• More discussion of leniency for drunk drivers
• Is capital punishment for drunk driving morally required?
• More examples of undue leniency shown to repeat drunk drivers
• "Some Coloradans drive until they kill" 

Georgia carries out uneventful lethal injection execution

As reported in this local article, headlined "State executes pizza store killer," Georgia officials appeared to have no problem with a lethal injection protocol last night.  Here are the basics:

Condemned inmate Mark McClain was killed by lethal injection at 7:24 p.m. Tuesday in Jackson....

McClain did not issue a final statement.  When asked if he wanted a prayer said for him, he replied, "No, I'm fine."  He lay expressionless and made no eye contact with the attorneys, prison officials and members of the media who witnessed his execution.  As his death drew near McClain's ruddy complexion turned pale. His body lunged forward slightly as the potassium chloride raced through his veins, but otherwise his passing was quiet.  His execution, unlike most, kept to schedule....

McClain was sentenced to death by a Richmond County jury for the 1994 murder of the Domino's Pizza store manager. Brown, 28, was shot once in the chest for the $130 in his till.

McClain was at peace with his fate, said attorney Brian Kammer.  "Mark had become a person of deep religious faith, and he had a sense of equanimity through this whole process,"Kammer said. "He had hoped common sense would prevail."  McClain acknowledged shooting Brown, but claimed it was unintentional. Jurors sided with the prosecution, who labeled McClain an experienced criminal who "preferred to kill."...

McClain was the third person executed in Georgia this year and the 45th put to death since 1983, when the state resumed executions after the U.S. Supreme Court ruled them to be constitutional.

Georgia juries convicted 55 people of committing a murder during an armed robbery in 1995, the year McClain was sentenced.  Prosecutors sought the death penalty in 16 of those cases, but McClain was the only one condemned to die.  "It's a crime that would not garner the death penalty these days," Kammer said.

"Prison Time or Restitution?: Sentencing for fraud often a balancing act"

The title of this post is the headline of this article from my local paper, which raises some classic hard questions in the sentencing of economic crimes.  Here are snippets from an interesting and effective piece:

It's unlikely that Melanie Chen's victims will ever recoup the thousands of dollars they lost to her cancer hoax.  A Delaware County Common Pleas judge sentenced Chen on Tuesday to eight years in prison for swindling her in-laws and other relatives and friends out of $792,191 after convincing them that her husband, Phylip, 38, had cancer.

Chen, 30, of Columbus, also was ordered to pay full restitution, but Assistant Prosecutor Bill Owen knows from experience that probably won't happen. The money is long gone....

Chen's victims have conflicting emotions, which isn't unusual in fraud cases, Owen said. Some are more concerned with recovering the stolen money than with punishment, while others seem satisfied that Chen is in prison.  Phylip Chen also faces criminal charges and awaits a trial scheduled for Oct. 27. "It's just very difficult for a victim of an economic crime to ever feel any closure," Owen said.

Sentencing criminals convicted of fraud is a balancing act.  Judges often impose a prison term for financial crimes, especially if the case involves multiple victims, said David Diroll, executive director of the Ohio Criminal Sentencing Commission.  "The dilemma the courts have is, on one hand you have many people bothered by this and outraged that they've been scammed," Diroll said.  "You weigh that against whether sending someone to prison gives them any meaningful shot at restitution."

Before deciding on a sentence, judges consider the loss to victims and the criminal's ability to pay what they owe, Diroll said.  They also consider the person's background, education and employment history.  That's why punishments vary from court to court and judge to judge, even for similar crimes.  Sometimes, judges suspend prison sentences or grant early release from prison so that restitution can be collected sooner.

A state tax agent fired in February for theft recently was ordered to repay the $67,657 she stole from taxpayers over 14 months.  Franklin County Common Pleas Judge Laurel A. Beatty suspended a five-year prison term for Lisa M. Finnell, 41, and ordered her to complete five years of probation instead.  "I told her I preferred her making payments to the taxpayers of Ohio than sitting in a prison cell," Beatty said after Finnell's sentencing on Sept. 30.

But in many cases, the defendant doesn't have the means to pay restitution, particularly when it's a very large amount, said Mark Schweikert, executive director of the Ohio Judicial Conference and a retired judge.  "Each case is unique and has its own set of facts, and each offender has their own set of circumstances," Schweikert said.  "That's why we have judges and not computers making those decisions."

Because prison time imposes lots of tangible costs while providing few tangible benefits to either victims or society, I am always inclined to favor significant economic sanctions for economic crimes.  Specifically, I think both restitution and fines paid to a general victim compensation fund should be regular part of sentencing for all economic crimes. 

My broader hope is that, if and when economic crime victims start seeing efforts by prosecutors and judges to make them whole, these victims will start actively advocating punishments that enhance the chance of successful offender reentry (which should increase the ability of an offender to make restiution) rather than just urging longer prison terms (which generally decreases an offenders economic productivity). 

Should domestic violence offenders have to register like sex offenders?

The question in this post is prompted by this interesting story out of New York.  The piece is headlined, "NY Lawmaker Pushes For Domestic Violence Registry: Domestic Abuse Offenders Would Have To Sign Up Similar To What's Required Of Sex Offenders."  Here are some details:

A Long Island woman is recounting the terror she and her daughter endured at the hands of her ex-husband. This as efforts are underway to create an online registry of domestic violence offenders, just like sex offenders. The Suffolk County woman and her daughter, who have asked to remain unidentified, are in hiding from her ex-husband, who police say was previously arrested for domestic violence and weapons possession.

"My ex-husband he would go into rage. He put a knife to my throat, he spit on me, he choked me, many times in front of my daughter; he would lock us in the closet, also the psychological abuse," she told CBS 2. "Currently my ex-husband is online, on every single dating site. Women are looking at his profile. He indicates he is a physician. He indicates how much money he makes."

As easily as one finds an online date, there could be a way to find out if that prospective mate has a violent history. Suffolk County Legislator DuWayne Gregory (D-Amityville) wants to create an online registry of the county's domestic violence offenders. "They'll be outed, and the community and the world will know this is the thing they do behind closed doors," said Gregory.

Gregory compares his Suffolk County legislation to the sex offender registry. It would include an offender's name, address, and photograph, creating a shame-factor for abusers. "It's going to save lives and keep people out of danger. That"s why we are pushing it 100 percent," he said.

CBS 2 spoke with several coalitions against domestic violence who called the bill "well-intentioned," but concerned it could backfire. "The primary concern is about the victim's confidentiality," said Ruth Reynolds of the Suffolk Co. Victims Information Bureau and Family Violence Center....

Still, the victim we spoke with, for one, urges lawmakers to adopt the measure. "This is why I speak out, because there should be a registry to indicate their offenses," she said.

The full Legislature will not act on the bill before November because the sponsor, Legislator Gregory, wants to add a provision that would leave it up to a judge to decide how long each domestic violence predator would be named on the registry.

Because I am generally a fan of criminal justice transparency and often fear that expressed concerns about privacy are overstated, I generally favor the notion of having all serious criminal offenders subject to basic registration requirements.  (I am troubled, however, by criminal laws that threaten severe punishments for a failure to keep a registration updated forever.) 

The key to sound registry requirements, in my view, is ensuring that these registries are accurate and can include information about the age of a conviction and true nature of the offense conduct.  (This recent commentary at The Atlantic, titled "Too Much Information, Not Enough Common Sense," speaks to some of these concerns.)  I wonder if any public policy or law reform groups are working on model criminal registry legislation.  A well-considered basic model for all these types of law would like be a real contribution to sentencing law and policy.

How might we punish "semi-voluntary acts"?

The question of this post is prompted by this new paper from Professor Deborah Denno that I just saw on SSRN.  The title of this paper is "Consciousness and Culpability in American Criminal Law," and here is the abstract:

American law requires a voluntary act or omission before assigning criminal liability. The law also presumes that an individual who is unconscious, such as a sleepwalker, is incapable of a voluntary act. For some criminal defendants in the United States this all-or-nothing approach to the voluntary act requirement can mean the difference between unqualified acquittal if they are found to have acted involuntarily, lengthy institutionalization if they are found to be insane, and incarceration or even the death penalty if their acts are found to be voluntary. In contrast to the law’s dual dichotomies of voluntary/involuntary and conscious/unconscious, modern neuroscientific research indicates that the boundaries between our conscious and unconscious states are permeable, dynamic, and interactive. To enable the law to join science in a more nuanced and just view of the human mind, this article proposes that, in addition to voluntary and involuntary acts, the criminal law recognize a third category — semi-voluntary acts.

I am inclined, even without having a chance to read the whole paper, to embrace this proposed third category of semi-voluntary acts as a way to describe some wrongful behavior for criminal law purposes.  But that then just requires turning to the really hard question of how semi-voluntary acts ought to be punished.  Should perhaps alternative sentences or technocorrections or other novel punishment be the presumptive response to this new category of consciousness and culpability?

Long obstruction sentence for executive who lied about terminal illness

This local Boston Herald story, which is headlined "Big lie lands executive in prison: Former Biopure officer gets 3 years," suggests that a federal judge impose an above-guideline sentence on a white-collar scoundral who told what some might consider one of the worst kinds or tall tales.  Here are the details:

An ex-biotech executive’s sick ploy to avoid a federal lawsuit by lying about having terminal cancer was slapped with a longer-than-expected stretch in the slammer.

Howard P. Richman, 57, the former head of regulatory affairs at Biopure Corp. in Cambridge, was sentenced to three years in prison and ordered to pay a $50,000 fine for obstruction of justice, federal prosecutors announced yesterday.

U.S. District Court Chief Judge Mark Wolf’s sentence was harsher than federal guidelines and went beyond prosecutors’ recommendation for a 21-month prison term.  Ian Gold, Richman’s defense attorney, had requested a 15-month prison term....

Richman pleaded guilty in March to lying to Judge Patti Saris, who presided over a Securities and Exchange Commission suit accusing Biopure of misleading investors about its synthetic blood product Hemopure.

The Texas resident deceived his own lawyers by posing on the phone as a doctor, and produced a phony affidavit that claimed his chance of surviving colon cancer was, at best, 15 percent.  “To any human who has experienced serious illness in their own life or family, Richman’s conduct is appalling,” Assistant U.S. Attorney James Dowden wrote in a sentencing memorandum. “Quite simply, his lies are deserving of society’s condemnation and of serious criminal punishment.”

Based on the cancer claims, Saris halted the SEC’s case against Richman in July 2007.  The ruse apparently unraveled two months later when his attorneys abruptly withdrew from the civil case.

Justice Scalia again seems to be the federal defendant's best friend in ACCA argument

Anyone who really follows the Supreme Court's criminal justice work should already know that the usual, knee-jerk labels and expectations concerning liberal/conservative voting patterns, though often holding true in capital cases and police practice cases, almost never hold true in the context of constitutional trial procedure and federal criminal statutory interpretation cases.  The latest data point on this front can be found in the full transcript of oral argument in Johnson v. US (08-6925), which is available at this link. 

Johnson is yet another Supreme Court case requiring the Justices to try to make sense of which prior state crimes suffice to trigger the 15-year mandatory minimum sentencing terms of the Armed Career Criminal Act (ACCA).  Though not an easy read, the Johnson transcript reveals Justice Scalia making a significant and sustained effort to provide a pro-defendant reading of the statute.  In notable contrast, Justice Breyer seems to be comfortable with a broader reading of the ACCA statute, though it is not entirely clear how he will vote in the case (especially since last term Justice Breyer thoughtfully suggested that the rule of lenity should apply with special force in cases involving mandatory minimum sentencing provisions).

There are other tea leaves worth reading for real ACCA junkies in the Johnson transcript, though it is hard to come away from the transcript without agreeing with Justice Alito's well-articulated view in an earlier ACCA case that Congress need to fix via a new statute the very messy and opaque jurisprudence that the Supreme Court's ACCA decision have now produced.

"Parents in prayer death get probation, some jail"

The title of this post is the headline of this AP article reporting on a notable sentencing decision in Wisconsin state court.  Here are the basics:

A judge has sentenced a Wisconsin couple to 10 years probation and 30 days a year in jail for the next six years for praying instead of seeking medical care for their dying 11-year-old daughter.

Marathon County Circuit Judge Vincent Howard sentenced Dale and Leilani Neumann on Tuesday. The jail terms were stayed pending appeals by the couple of their convictions for second-degree reckless homicide in March 2008 death of their daughter, Madeline Neumann.

The girl died of complications from undiagnosed diabetes on the floor of the family's home while people around her prayed. Someone called 911 after she stopped breathing.

Okay, all you wanna-be sentencing judges: is this outcome similar to the sentence you might have given?

Justices troubled by constitutionality of "animal porn" federal criminal statute

This report from SCOTUSblog, titled "Analysis: Animal cruelty law in trouble," confirms my instinct that many Justices would have deep concerns about the federal criminal law that  prohibit what I like to call "animal porn."  Here is the start of Lyle Denniston's report on today's oral argument in US v. Stevens:

Congress’ attempt ten years ago to ban animal cruelty, by banning video and other depictions of it, had its first constitutional test in the Supreme Court Tuesday, and appeared to have failed.  Despite efforts by an Obama Administration lawyer to show that Congress wrote carefully and narrowly, most of the Justices strongly implied that the law probably goes too far — or at least was so vague that no one can know just what is illegal.  Only one Justice, Samuel A. Alito, Jr., seemed tempted to support the law as is.

The full transcript of oral argument in United States v. Stevens (08-769) is available here.

Iowa Supreme Court finds 25-year sentence for statutory rape questionable under state constitution

A helpful reader alerted me to a fascinating new opinion from the Supreme Court of Iowa in State v. Bruegger, No. 07–0352 (Iowa Oct. 2, 2009) (available here). Here is how today's must-read starts:

In this case, we are confronted with a claim by a defendant convicted of statutory rape that a twenty-five-year prison sentence amounts to cruel and unusual punishment.  His term of incarceration was substantially lengthened based upon a prior incident of sexual misconduct committed by the defendant as a juvenile.  For the reasons expressed below, we vacate the sentencing order of the district court and remand for further proceedings.

The majority opinion provides a terrific review of a whole array of constitutional issues and closes this way:

[W]e note that Bruegger has committed a serious crime for which the legislature may impose a serious penalty. We do not view statutory rape as a victimless crime in light of the risk of disease, pregnancy, and serious psychological harm that can result from even apparently consensual sexual activity involving adults and adolescents. Nor do we believe that Bruegger’s conduct as a juvenile is irrelevant to sentencing. Our sole concern here is whether, under the facts and circumstances, a mandatory sentence of 21.25 years is “off the charts.” We, therefore, vacate the sentencing order of the district court and remand the case for a new sentencing hearing to allow Bruegger and the State to present evidence as to the constitutionality of section 901A.2(3) as applied to the defendant.

The dissenters believe that the majority has gone to far, as evidenced by this opening paragraph of the dissenting opinion authored by one judge:

While the majority opinion is thoughtful and compelling, I refrain from joining in it because sentencing parameters is an area of the law for which courts are required to give great deference to the policies of the legislature as written into sentencing statutes.  The individual-assessment approach introduced by the majority in this case will only permit the courts to substitute their judgment for that of the legislature in cases to follow.  This approach is contrary to the principles of judicial restraint and separation of powers.

Split Ohio Supreme Court upholds criminal punishment for DUI arrestee refusing chemical test

As detailed in this official press release, this morning the Supreme Court of Ohio "upheld as constitutional a state law that imposes 10 additional days of mandatory jail time on a driver with a prior DUI conviction if that person refuses to take a chemical test after being arrested for a subsequent DUI violation."  The majority opinion in the 4-3 ruling in State v. Hoover, No. 2009-Ohio-4993 (Ohio Sept. 30, 2009) (available here), starts this way:

In this case, we consider the constitutionality of R.C. 4511.19(A)(2), which requires the imposition of criminal penalties upon certain persons who refuse to consent to chemical testing upon being arrested for operating a motor vehicle while under the influence of alcohol or a drug of abuse (“DUI”).  We hold that R.C. 4511.19(A)(2) does not violate the Fourth Amendment to the United States Constitution or Section 14, Article I of the Ohio Constitution.

The dissenting opinion starts this way:

The majority’s interpretation of R.C. 4511.19(A)(2) signals a fork in the road.  R.C. 4511.19(A)(2) veers from the traditional administrative punishment for refusal to consent to a chemical test upon an arrest for DUI and goes down a separate path, beyond the regulation of licensing; for certain DUI arrestees, R.C. 4511.19(A)(2) criminalizes the refusal to take a chemical test.  Since imposing a criminal penalty for refusing to consent infringes on a suspect’s rights under Section 14, Article I of the Ohio Constitution and the Fourth Amendment to the United States Constitution, I dissent.

Seeking First Amendment and feminist perspectives on an escort's sentence

This new federal sentencing story out of California, which is headlined "Stanford Law School grad turned call girl sentenced to home detention," has so many interesting and comment-worthy dimensions.  First, the basics:

A Stanford Law School graduate was sentenced Monday on a federal tax conviction related to running a high-priced call girl service, punishment that includes restrictions on her ability to keep advertising as an escort while she's on probation.

During a hearing in San Jose federal court, U.S. District Judge James Ware concluded he needed to impose those restrictions on Cristina Warthen after federal prosecutors disclosed she's continued to advertise herself on the Internet as a high-priced escort, even as she awaited sentencing on federal tax evasion charges related to her days as an upscale prostitute named "Brazil."

Warthen gained notoriety when she was busted as a jet-setting call girl who sold her services to pay off her Stanford Law School debts.  She got her law degree from Stanford in May 2001, but quickly began to run a steamy Web site with offers to jet off for liaisons with clients in cities around the country, including New York, Chicago and Washington, D.C. She eventually pleaded guilty to failing to pay taxes on more than $133,000 she earned as a prostitute in 2003.

Under a plea deal with the government, Warthen was sentenced Monday to one year of home detention with an electronic monitoring device and three years of probation.  She also has to pay the government a total of about $243,000, less than the original $313,000 set out in her original plea arrangement.

Federal prosecutors agreed to the lower amount when Warthen demonstrated she could not pay it after her recent divorce from David Warthen, the co-founder of the online search engine Ask Jeeves, now known as Ask.com.  Court papers show the once-wealthy Web entrepreneur's finances were decimated by last year's stock market collapse, and he could not provide more money to his now-ex-wife, who says she's unemployed.

But Ware was dismayed to learn from federal prosecutors and probation officials that Warthen has continued to advertise her escort services as she has awaited sentencing. Assistant U.S. Attorney David Callaway told the judge Warthen has posted ads on the Internet offering "companionship" for $2,000 a night. "We all know that's a wink and nod and what she really is advertising is high end prostitution," Callaway said in court.

Warthen, who has been temporarily living in Seattle with her mother, has placed an escort ad on the Web. The image of her face is blurred in photographs on the Web ad, which boasts of a graduate degree from an "Ivy League university." Brian Getz, Warthen's attorney, objected to the government's request, saying she is a "law abiding citizen" who has a free speech right to advertise escort services as long as she's not breaking prostitution laws.  But Ware, noting that her sentence is already "lenient," was unmoved.

Now, a few First Amendment and feminist musings.  Because I am not a First Amendment scholar, I am not even sure of the basic doctrines that surround government prohibitions on forms of advertising/speech that might a form of illegal solicitation.  But I wonder if this kind of prohibition on internet advertising of guns or viagra would have been imposed on a male defendant who pleaded guilty to evading taxes for prior illegal sales of guns or prescription drugs.

"Immigration Prosecutions at Record Levels in FY 2009"

The title of this post is the headline of this new data item from the folks at the Transactional Records Access Clearinghouse (TRAC). Here is how the report starts:

The latest available data from the Justice Department show that during the first nine months of FY 2009 the government reported 67,994 new immigration prosecutions. If this activity continues at the same pace, the annual total of prosecutions will be 90,659 for this fiscal year.  According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this estimate is up 14.1 percent over the past fiscal year when the number of prosecutions totaled 79,431.

The comparisons of the number of defendants charged with immigration-related offenses are based on case-by-case information obtained by TRAC under the Freedom of Information Act from the Executive Office for United States Attorneys.

These numbers ought to bring a smile to Lou Dobbs and others who are often calling for tougher enforcement of immigration laws.  Whether it amounts to change we can believe in is, of course, a distinct question.   

Blogger being prosecuted for threatening judges gets transfer and restricted bail

This new article from the National Law Journal, which is headlined "Blogger Charged With Threatening 7th Circuit Judges Gets Home Confinement," reports on the latest developments in a notable federal criminal case:

U.S. District Judge Donald Walter has ordered the release of Internet blogger and Web talk show host Hal Turner, who was arrested in June for declaring in an online posting that three Chicago-based federal judges "deserve to be killed."

Turner is on his way back to his home state of New Jersey after Walter decided in a Wednesday conference call meeting with lawyers that Turner could be released under "strict conditions," including a prohibition on his speaking to the media, home confinement and electronic monitoring, said Michael Oroczo, who represents Turner. He said his client was currently in the U.S. Marshal Service's custody in Oklahoma City as he's being transferred to New Jersey....

The release order by Walter, a U.S. district judge from Western Louisiana who was assigned the case to avoid potential bias, runs counter to a decision made last month by Chicago-based U.S. Magistrate Judge Martin Ashman, who found that Turner should remain in custody until his trial. It's not clear if a bond amount was set for the release.

Turner was charged by the U.S. Attorney's Office in Chicago with threatening to assault and murder three judges in retaliation for a June 2 decision they made. In a Web posting the same day, Turner called the 7th Circuit ruling, which declined to overturn laws banning handguns in Chicago and a nearby suburb, an "outrage" and said that the judges behind the decision "deserve to be killed." The judges who decided the case were Chief Judge Frank Easterbrook, Judge Richard Posner and Judge William Bauer. In a second posting on June 3, Turner provided the names, work addresses, phone numbers and photos of the judges.

Walter last week also allowed Turner's case to be transferred to the Eastern District of New York, granting his request for a change of venue from Chicago to Brooklyn. Walter granted the venue change partly because he agreed the defendant would have a harder time getting a fair trial in Chicago where there was significant media coverage of the 2005 murder of U.S. District Judge Joan Lefkow's mother and husband.

Turner said in his postings that federal judges in Chicago hadn't gotten "the hint" from those killings. "Memories are not so short as to erase the event from the public mind," Walter wrote in a Sept. 8 decision. "On balance, it is this court's opinion that granting the motion would best serve, not only justice, but the appearance of justice.

If you ever wondered what might happen if you sold balg eagle feathers...

this new Justice Department official press release, titled "Arizona Man Sentenced for Selling Bald Eagle Feathers," provides an answer:

Cedric E. Salabye of Dilkon, Ariz., was sentenced Friday in federal court in Phoenix for selling 11 bald eagle tail feathers, the Justice Department announced today.  Salabye pleaded guilty on April 23, 2009, to one count of a federal indictment charging him with selling eagle feathers in violation of the Bald and Golden Eagle Protection Act.  Judge David G. Campbell of the U.S. District Court for the District of Arizona sentenced Salabye to five years of probation, six months of home confinement and 150 hours of community service.

At the time Salabye committed the violation in 2006, the bald eagle was listed as threatened under the Endangered Species Act.  The bald eagle was removed from protection under the federal Endangered Species Act in 2007.  However, two other federal laws still provide protection for the bald eagle — the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act.

Eagles and other protected migratory birds are viewed as sacred in many Native American cultures and the feathers of the birds are central to religious and spiritual Native American customs.  By law, enrolled members of federally recognized Native American tribes are entitled to obtain permits to possess eagle parts for religious purposes, but federal law strictly prohibits the sale of bald and golden eagles or their feathers and parts under any circumstance.  The U.S. Fish and Wildlife Service operates the National Eagle Repository, which collects eagles that die naturally, by accident or other means, to supply enrolled members of federally recognized tribes with eagle parts for religious use.

"The buying and selling of the feathers of bald eagles, our nation’s symbol, is illegal and those who choose to ignore those laws will be prosecuted," said John C. Cruden, Acting Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division.

Sex offender driven to drink and drive by registration requirement

This little local story, headlined "Police: Pa. man drove drunk to Megan's Law meeting," is both funny and not-so-funny.  Here are the basics:

A convicted child sex offender has been charged with drunken driving because he allegedly showed up intoxicated when he registered under Megan's Law at a western Pennsylvania state police barracks.

State police in Greensburg say 37-year-old Jerry Cignetti, of Bradenville, showed up drunk on Friday.  Court records show he was convicted in Westmoreland County in 1998 for the indecent assault of a child under 13.  He was paroled but had to register as a sex offender once his sentence was completed.

The 1L Crim Law teacher in me is wondering if this might be the basis for an interesting (though surely losing) claim of necessity.

"Commission asks: Is a crime worse if a child sees it?"

The title of this post is the headline of this interesting local article from Virginia.  Here are the details:

If Matthew R. Nash is convicted of this summer's Virginia Beach carjacking, he could get additional prison time for the mere fact that a toddler in the back seat became a witness to the event.  Some judges have begun tacking on additional months or years of prison time when a crime occurs in the presence of a child, even though there's nothing in sentencing guidelines that requires it.

The state is now trying to figure out how often crimes occur in front of children in anticipation of possible legislation to require additional incarceration if children witness crimes.  For the study, the Virginia Criminal Sentencing Commission asked commonwealth's attorneys to supply data on crimes committed in the presence of children, but it has been slow going....

The commission embarked on the study, believed to be one of the first in the country, after getting increased reports of judges imposing greater sentences in crimes that occur in front of children. The commission wants to determine exactly how often it happens. "I think it's part of a whole package that's presented when sentencing a defendant," Suffolk Commonwealth's Attorney Phil Ferguson said. "If you're committing a crime in front of children, then you're teaching children that it's OK to commit criminal acts."

Defense attorneys typically object to such sentencing enhancements because it's not an aggravating factor under the state's sentencing guidelines.  Norfolk attorney James Broccoletti said he's seeing it more often, particularly in drug cases.  He said he had a murder case several years ago in which a jury and judge imposed additional time for the defendant, Ericka Parks, because she shot and killed another woman in front of the victim's baby.  He called the 25-year prison term "extremely harsh." "It does have an impact," he said.

So, dear readers, here is the question to start the work week:  should sentencing guideline systems formally include a sentencing enhancement for committing a crime in front of a juvenile?