It seems broadly agreed that the purpose of the law was, "to provide higher penalties for polygamists 'who sexually assault their purported spouses.'" But read literally, the law enhances the punishment for sexual assault by any married person, regardless of the assaulter's relationship with the victim (except when the victim is the assaulter's spouse), simply because married people can't marry anyone else.
And indeed, in Estes v. State (decided yesterday by the Texas Court of Criminal Appeals), prosecutors, judges, and a jury applied the law precisely in this way: Estes' conviction for having sex with an under-16-year-old friend of his son's was upgraded to a first-degree felony just because he was married. An appellate court concluded that there was no rational basis for punishing married abusers more than unmarried abusers, but the majority on the Court of Criminal Appeals — Texas's highest court for criminal cases — disagreed...
[This case is] a reminder that statutes are often interpreted as they are written, and not as the drafters may have intended. We should all keep that in mind when we're asked to accept a broadly written statute on the grounds that the objectors are being too literal and that "courts and prosecutors obviously won't read it that broadly. Sometimes statutes are indeed read narrowly, in keeping with their well-known purpose; but sometimes they are not....
Finally, the statute as read by the court would also impose a lower penalty for a married person's raping the person's spouse (since that would still be a second-degree sexual assault) than for the married person's raping someone else (since that would be a first-degree sexual assault). I don't think this was the result of any deliberate judgment by legislators that spousal rape is a lesser crime (the statute expressly excludes consensual marital sex from the statutory rape provision, but that exclusion doesn't cover the forcible rape provision); I don't think any of this was the result of any deliberate judgment by legislators. But that appears to be the outcome.
Second-degree felonies, by the way, call for a minimum sentence of 2 years in prison and a maximum of 20; first-degree felonies, call for a minimum of 5 years and a maximum of 99.
Saturday, October 20, 2018
Paul Manafort seemingly poised to get "senior discount" at upcoming sentencing
This new NBC News piece, headlined "Paul Manafort's health and age could help shorten his sentence," reports on the notable recent court appearance of a former presidential campaign manager and highlights how it could impact his upcoming sentencing. The piece is authored by Danny Cevallos, an MSNBC legal analyst, and here are excerpts:
Former Trump campaign manager Paul Manafort appeared in a Virginia federal court Friday in a wheelchair, missing his right shoe, and appearing visibly grayer. His legal team advised Judge T.S. Ellis that Manafort was dealing with “significant” health issues related to his confinement, and asked the court to expedite his sentencing so that he could be transferred to a facility better equipped to take care of him.
There’s no question that incarceration has negative health effects. It’s also likely part of a wise strategy for Manafort’s defense team to make these health issues known to the judge well in advance of the sentencing hearing. Manafort’s age and infirmity can bolster a defense argument to the judge for a significant reduction in his sentence.
Federal judges are permitted to consider a defendant’s advanced age and health issues in order to impose fair punishment and provide essential medical care. Following an amendment to the Federal Sentencing Guidelines in 2010, the defendant’s age and physical condition, including his physique, may be relevant in reducing a sentence. However, this is only if the condition is unusual and distinguishable from other cases. An extraordinary physical impairment or a seriously infirm defendant can justify granting home detention as a less costly option than imprisonment. The guidelines permit the court to consider alternative forms of incarceration for such an offender if those alternatives are “equally efficient” as prison.
It’s not clear what health condition confined Manafort to a wheelchair with only one shoe on Friday. The court may consider a defendant’s need for medical care when fashioning a sentence. Courts have considered a variety of conditions during sentencing that can affect the feet, including diabetes, and gout. Still, Manafort’s defense team should be prepared to show that these ailments are extraordinary, and they cannot be treated adequately by the Bureau of Prisons.
The Department of Justice has recognized that the aging process accelerates for prisoners. Elderly prisoners such as Manafort are more vulnerable to predators. They require special physical accommodations in a place that is not designed for special accommodation. According to the DOJ, the annual cost of incarcerating elderly prisoners has risen to an average of $60,000 to $70,000 for each elderly inmate compared with about $27,000 for others in the general population....
Elderly defendants are substantially less likely than younger offenders to commit new crimes after they are released. The U.S. Sentencing Commission reported that over an eight-year period, only 13.4 percent of offenders age 65 or older were rearrested compared to 67.6 percent of offenders younger than age 21 when they were released. Of course, expect the prosecutors to point out that after he was originally charged and out on release, Manafort committed new obstruction crimes by trying to influence witnesses. The government will surely counter that Manafort is one of those rare older offenders who is likely to commit new crimes — because he already did.
I am pleased this piece highlights the (too-often-ignored) 2010 revisions to the USSG policy statements concerning age and physical impairments as a possible relevant basis for a departure from the applicable guidelines. But, as federal practitioners know, the guideline policy statements about departures are often ignored because judges have broad general authority to vary based on statutory 3553(a) factors regardless of what the guidelines say. And, not to be forgotten, as reported in this prior post, Manafort's plea agreement caps his sentencing exposure at 10 years, but includes a calculation of his estimated "Sentencing Guidelines range [at] 210 months to 262 months' imprisonment."
Some prior related posts:
- Appreciating ugly sentencing realities facing Paul Manafort and Rick Gates after federal indictment
- Paul Manafort has bail revoked ... and has not (yet) gotten rescued from jail by Prez Trump's clemency pen
- Paul Manafort found guilty of 8 of 18 counts ... and now faces real possibility of spending many years in federal prison
- Reported sentencing details in Paul Manafort's plea deal to wrap up his various federal prosecutions
- Paul Manafort's DC plea agreement has a calculated guideline range of 17.5 to 22 years (though he can only get 10)
Friday, October 19, 2018
Rastafarian musician gets eight-year sentence after being found with 2.89 pounds of marijuana in car
I sometimes see reporters and others suggest that personal marijuana possession and use has already become essentially de facto legal throughout the country. This story of a sentencing in Mississippi this week, headlined "Jamaican-born musician sentenced to 8 years in prison for marijuana he legally obtained," puts the lie to this suggestion. Here are the details:
A Jamaican-born musician convicted of drug trafficking in Madison County for marijuana he said he obtained legally in Oregon for his personal use received an eight-year prison sentence without parole Monday. Madison County Circuit Judge William Chapman said Patrick Beadle, 46, of Oregon, faced a maximum 40 years in prison after a jury convicted him in July under the state's drug trafficking law.
Beadle, who performs under the name BlackFire, was charged with drug trafficking, although he said the marijuana he had with him was for his personal use and was obtained legally in Oregon where medical marijuana was legalized in 1998. Oregon voters approved recreational use of marijuana in 2014. Prosecutors admitted there was no evidence to prove Beadle was trafficking in drugs other than the amount of marijuana, 2.89 pounds, and that it was concealed in his vehicle.
Chapman departed from giving Beadle the 10 to 40 years under the drug trafficking law, but he wouldn't reduce it to simple possession because he said the jury convicted Beadle under the drug trafficking law. Chapman said Beadle would have to serve the eight year sentence day-for-day since the law doesn't allow for parole or probation....
Patrick Beadle said he has a medical marijuana card from Oregon to treat chronic pain in both knees where cartilage has worn down from his years of playing college basketball. Marijuana use is also common among Rastafarians.
Beadle said he was traveling March 8, 2017, southbound on I-55 after entering Madison County and at about 10 a.m., he was pulled over on I-55 near Canton by a Madison County deputy for the alleged traffic violation of crossing over the fog line, the painted line on the side of a roadway. He disputes the deputy's assertion that he crossed over the fog line. He said his dreadlocks and out-of-state auto tag made him a target for racial profiling....
In the Beadle case, then-Deputy Joseph Mangino found no large sums of money, drug paraphernalia or weight measuring scale to substantiate the trafficking charge. "This is not the typical defendant you see. "He is not a drug dealer," said Randy Harris, who was Beadle's trial attorney.
This lengthy (pre-sentencing) article from another local paper provides a few more details and some context about this disconcerting case:
Beadle was southbound on I-55 and had crossed from Yazoo into Madison County. A few seconds later, a Madison County sheriff’s deputy pulled him over. A search of Beadle’s car revealed 2.8 pounds of marijuana.
Following a trial in July, a jury took 25 minutes to find him guilty of charges that could land him in prison for up to 40 years without parole. Beadle, who is African American, and his allies say the fact that he was pulled over is a clear case of racial profiling while law enforcement officials maintain that a traffic violation led to the stop....
In Madison County, drug dispositions between 2013 and 2017 -- that is, drug charges settled in those years -- neared 1,000, based on data provided by the Administrative Office of Courts. Of those total charges, only two people were found guilty by a jury as Beadle was, Mississippi Today found. Out of all the drug dispositions, about three in five were faced by African Americans.
That discrepancy goes up when looking only at guilty pleas. The majority of defendants pled guilty to over 600 charges in Madison County during that timeframe. About 66 percent of those individuals were black -- though black people make up only 38 percent of the county’s population -- while 32 percent were white.
October 19, 2018 in Drug Offense Sentencing, Examples of "over-punishment", Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Race, Class, and Gender | Permalink | Comments (5)
Thursday, October 18, 2018
Remarkable sentencing where district judge decided crooked cops needed more punishment than federal prosecutors sought
This local article from Florida reports on a sentencing in a remarkable federal case under the headline "Ex-Biscayne Park officers get year in prison for roles in framing black teen in crimes." Here are the details from the start of the article:
By helping the feds make a case against a corrupt ex-Biscayne Park police chief, two convicted former officers were hoping to avoid prison time for their roles in framing a black teenager with a string of burglaries. Instead, Charlie Dayoub and Raul Fernandez were handcuffed and led by U.S. Marshals into custody on Tuesday after U.S. District Judge K. Michael Moore sentenced them to the maximum: one year in prison for the false arrests.
As family members cried in disbelief, Moore chastised federal prosecutors for agreeing to recommend eight months of home confinement for Dayoub and one year of probation for Fernandez based on their grand jury testimony and other assistance in helping target former Chief Raimundo Atesiano, who had pressured officers in the mostly white suburban town to pin property crimes on people of color. He pleaded guilty last month. “It would have been a slap on the wrist, and it would have sent entirely the wrong message — particularly to the minority community,” Moore told Assistant U.S. Attorney Harry Wallace. “To think that they can come into court and get a slap on the wrist is insulting to the men and women in law enforcement.”
Moore challenged the prosecutor about his recommendation of leniency for the two defendants, who pleaded guilty in August to depriving a 16-year-old of his civil rights after framing him for four unsolved burglaries in 2013 at the direction of the ex-chief, Atesiano. The misdemeanor conviction carried up to one year in prison, while under the plea agreement prosecutors dropped a more serious civil rights conspiracy charge with a maximum 10-year sentence.
Wallace said his decision allowed the U.S. Attorney’s Office to use testimony by Dayoub and Fernandez to compel Atesiano to plead guilty to the felony civil rights conspiracy. “We were faced with a Hobson’s choice,” Wallace told the judge. But Moore, who accused the prosecutors of “sentencing manipulation,” rejected Wallace’s argument. The judge said had the prosecutors gone to trial against the ex-chief and the two officers, it would have been a “slam dunk.”
The sentencing outcome was a shock to everyone in the courtroom, especially the defendants, who were expecting leniency because the prosecutors joined their defense attorneys in support of no prison time. The reason: The two former Biscayne Park police officers testified before a federal grand jury about how the department’s ex-chief pressured them to arrest people of color and others for crimes they did not commit in the leafy bedroom community north of Miami.
Dayoub, 38, and Fernandez, 62, testified that Atesiano’s goal was to achieve a 100 percent burglary clearance rate, even if it meant pinning unsolved break-ins on people who were innocent victims, according to newly filed court records. Atesiano, 52, and another former Biscayne Park officer, Guillermo Ravelo, 37, already pleaded guilty to conspiring to violate the civil rights of innocent victims by falsely arresting them. Ravelo faces up to 10 years at his sentencing on Thursday, while Atesiano faces similar punishment in November.
UPDATE: This new Justice Department press release discusses the underlying crimes in detail while announcing that today "former Biscayne Park Police Officer Guillermo Ravelo was sentenced to 27 months incarceration for conspiracy to deprive a person of his civil rights and deprivation of civil rights under color of law."
Tuesday, October 09, 2018
Justice Kavanaugh joins the ACCA fray in his first set of SCOTUS arguments
As noted in this prior post, a new Supreme Court, due to the addition of new Justice Brett Kavanaugh, got started working this morning by hearing two cases concerning the application of the Armed Career Criminal Act. Via SCOTUSblog, I see the oral argument transcript in Stokeling v. United States is available on at this link and the transcript in United States v. Stitt is at this link. Helpfully, this additional post from SCOTUSblog provides these highlights:
In Stokeling v. United States, about whether a state robbery offense that includes “as an element” the common-law requirement of overcoming “victim resistance” is categorically a “violent felony” under the ACCA.
This argument has some moments that even young spectators seem to enjoy, such as when Roberts describes having his law clerks try to pull a dollar bill out of his hand while he held tight. (This was in response to an argument in the petitioner’s merits brief that “robbery can … occur where the offender does no more than grab cash from someone’s closed fist, tearing the bill without touching the person.”)
“It tears easily if you go like this,” Roberts says to Brenda Bryn, the lawyer for petitioner Denard Stokeling, motioning as if to tear a bill in half. “But if you’re really tugging on it … it requires a lot of force, more than you might think.”
Justice Sonia Sotomayor asks about whether a “ordinary pinch” can involve sufficient force to break the law. And to demonstrate, she pinches her neighbor on her right, Justice Neil Gorsuch. At that moment, he is lifting his coffee mug for a sip, and his wide-eyed reaction to being pinched suggests a mix of bemusement and mild alarm.
Whenever a justice asks a question, Kavanaugh looks down the bench at his colleague. He sometimes dons his reading glasses, and he jots notes. We cannot see whether he has his trademark Sharpie marker.
At 10:25 a.m., Kavanaugh has his first question, asking Bryn about her arguments relating to a 2010 Supreme Court ACCA decision, Curtis Johnson v. United States. “In Curtis Johnson, you rely heavily on the general statements of the court, but the application of those general statements was to something very specific: Battery and a mere tap on the shoulder,” Kavanaugh says to Bryn. “And all Curtis Johnson seemed to hold was that that was excluded. So why don’t we follow what Curtis Johnson seemed to do in applying those general statements to the specific statute at issue here and why wouldn’t that then encompass the Florida statute, which requires more than, say, a tap on the shoulder?”
In the second argument, for the consolidated cases of United States v. Stitt and United States v. Sims, the question is whether burglary of “a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as ‘burglary’” under the ACCA. Kennedy apparently decides that one hour of argument about the ACCA is enough, and he slips out at the break between the two arguments.
The Stitt and Sims argument will lead to questions about cars with mattresses, homeless people living in their cars in New York and Washington, and unoccupied recreational vehicles and campers.
Alito tells Erica Ross, an assistant to the solicitor general arguing that burglary of an unoccupied mobile structure should count as a strike under the ACCA, that the court has “made one royal mess” of its interpretations of the federal statute. Ross says that is something the court may need to think about in “some case,” but “I apologize … for continuing to bring us back to this case.” This simple point really tickles Justice Clarence Thomas for some reason, and he laughs heartily for several seconds.
Kavanaugh asks more questions in this second argument, though he also loses a couple of what I call “faceoffs” — when two justices battle for the floor, continuing to speak until one relents. He defers to Justice Ruth Bader Ginsburg at one point, and to Kagan at another. (Although the rule of thumb is that a junior justice ought to defer to a senior colleague in such situations, that rule is not always observed.)
Kavanaugh will have several extended colloquies, appearing more at ease with each one. Several times, Jeffrey Fisher of Stanford Law School, the court-appointed lawyer for the respondents in the second case, begins his answer by saying, “Well, Justice Kavanaugh, …” It is in those tiny moments that the reality sinks in that Brett Kavanaugh of Maryland is now an associate justice of the Supreme Court of the United States.
Monday, October 08, 2018
First cases for a new SCOTUS: two more efforts to sort out ACCA uncertainty with old criminal history
A new Supreme Court, due to the addition of new Justice Brett Kavanaugh, will get to work on old convictions by considering Tuesday morning the latest possible twists in an ever-twisting jurisprudence concerning the application of the Armed Career Criminal Act. The latest ACCA fun comes in the form of oral arguments in Stokeling v. United States and United States v. Stitt. Here are the basics on these cases via SCOTUSblog coverage:
Stokeling Issue: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.
Stitt Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).
Thursday, October 04, 2018
En banc Eleventh Circuit finds way to uphold key clause of § 924(c) mandatory-minimum statute against vagueness challenge
If you cannot get enough of debates over federal statutory interpretation and modern "crime-of-violence" vagueness jurisprudence, the Eleventh Circuit today has delivered for you over 150 pages of excitement in the form of an en banc ruling in Ovalles v. US, No. 17-10172 (11th Cir. Oct. 4, 2018) (available here). Here is part of the start of the majority opinion:
The question before us is whether one of the key provisions of an important federal criminal statute, 18 U.S.C. § 924(c), is unconstitutionally vague. As relevant to our purposes, § 924(c) makes it a federal offense — punishable by a term of imprisonment ranging from five years to life — for any person to use, carry, or possess a firearm in connection with a “crime of violence.” 18 U.S.C. § 924(c)(1)(A). The provision challenged here — § 924(c)(3)’s “residual clause” — defines the term “crime of violence” to mean a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Id. § 924(c)(3)(B).
This case is in some respects a successor to Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), in which the Supreme Court invalidated similarly-worded residual clauses on vagueness grounds. In the wake of those decisions, all here seem to agree that if § 924(c)(3)’s residual clause is interpreted to require determination of the crime-of-violence issue using what (in court-speak) has come be called the “categorical approach,” the clause is doomed.... In both Johnson and Dimaya, the Court concluded that application of a standard that requires a reviewing court “to ‘imagine’ an ‘idealized ordinary case of the crime’” rendered the challenged clauses impermissibly vague. Dimaya, 138 S. Ct. at 1214 (quoting Johnson, 135 S. Ct. at 2557–58).
On the flip side, Johnson and Dimaya also make clear — and it is common ground here — that if § 924(c)(3)’s residual clause is instead interpreted to incorporate what we’ll call a “conduct-based approach” to the crime-of-violence determination, then the provision is not unconstitutionally vague. As its name suggests, the conduct-based approach, in stark contrast to the categorical, focuses not on formal legal definitions and hypothetical “ordinary case[s],” but rather on the real-world facts of the defendant’s offense — i.e., how the defendant actually went about committing the crime in question....
The obvious (and decisive) question, then: Which is it here — categorical or conduct-based? Because we find ourselves at this fork in the interpretive road — the categorical approach imperiling § 924(c)(3)’s residual clause, a conduct-based reading saving it—we invoke the canon of “constitutional doubt.” Pursuant to that “elementary rule,” the Supreme Court has long held, “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.” Hooper v. California, 155 U.S. 648, 657 (1895)....
Joining the Second Circuit, which recently came to the same conclusion, see United States v. Barrett, __ F.3d ___, 2018 WL 4288566 (2d Cir. Sept. 10, 2018), we find that § 924(c)(3)(B) can be read to embody the conduct-based approach — and therefore, under the constitutional-doubt canon, that it must be. Accordingly, we hold that § 924(c)(3)(B) prescribes a conduct-based approach, pursuant to which the crime-of-violence determination should be made by reference to the actual facts and circumstances underlying a defendant’s offense.
The rest of the majority opinion runs less than 50 pages, followed by more than 100 pages of concurrences and dissents that cannot be readily summarized. But Judge William Pryor's concurrence, which garners a number of addition votes, gets off to this start which I really appreciate and applaud:
How did we ever reach the point where this Court, sitting en banc, must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of violence? It’s nuts. And Congress needs to act to end this ongoing judicial charade.
I join the majority opinion in full, but I write separately to explain why our resolution of this appeal forecasts how Congress should address the vexing issue of how to punish violent recidivists under laws like the Armed Career Criminal Act: by restoring the traditional role of the jury. The caselaw about how to punish recidivists has confounded the federal courts for decades and has made the resolution of this appeal tricky, but our decision also suggests a way out of the mess. Although our decision involves a contemporaneous crime and not a prior conviction, our conclusion that a jury may make findings about a defendant’s violent conduct applies with equal force to recidivist statutes. Indeed, the modern abandonment of the jury’s traditional role of making findings about prior convictions has created more problems than it has solved.
October 4, 2018 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (5)
Wednesday, October 03, 2018
"Reclassified: State Drug Law Reforms to Reduce Felony Convictions and Increase Second Chances"
The title of this post is the title of this notable new issue brief authored by Brian Elderbroom and Julia Durnan from the Urban Institute. Here is how it gets started and part of its conclusion:
Recognizing the harm caused by felony convictions and the importance of targeting limited correctional resources more efficiently, state policymakers and voters have made key adjustments to their drug laws in recent years. Beginning in 2014 with Proposition 47 in California, five states have reclassified all drug possession from a felony to a misdemeanor. Following the California referendum, legislation in Utah (House Bill 348 in 2015), Connecticut (House Bill 7104 in 2015), and Alaska (Senate Bill 91 in 2016) passed with overwhelming bipartisan majorities, and Oklahoma voters in 2016 reclassified drug possession through a ballot initiative (State Question 780) with nearly 60 percent support.
The reforms that have been passed in recent years share three critical details: convictions for simple drug possession up to the third conviction are classified as misdemeanors, people convicted of drug possession are ineligible for state prison sentences, and these changes apply to virtually all controlled substances. This brief explores the policy details of reclassification, the potential impact of the reforms, and lessons for other states looking to adopt similar changes to their drug laws....
Reclassifying drug possession from a felony to a misdemeanor can reduce the negative impacts imposed on people and communities by felony convictions, reduce imprisonment of people convicted of drug possession, and redirect limited resources to treatment and prevention without negatively impacting public safety.
The five states that have reclassified drug possession represent a wide range of political beliefs and reclassification has broad bipartisan support across the country. Governors from the Republican, Democratic, and Independent parties have signed reclassification legislation, and voters approved reclassification at the ballot in states as diverse as California and Oklahoma. State profiles in the appendix of this report provide more detail on these reforms, including the definition for drug possession, criminal penalties, projected or actual impacts, and reinvestment funding.
But reclassifying drug possession is only one step that states can take to reduce incarceration and reallocate prison spending to less costly and more effective options. Lessons from the states that have reclassified drug possession, and research on the wide gap between state funding of behavioral health programs and treatment needs, suggest the need for a significant shift in how states deal with substance abuse and approach drug policy.
Monday, October 01, 2018
California reduces reach of its broad felony-murder law, and provides for retroactive sentence reductions accordingly
In my Criminal Law class, we just finished a unit on mens rea and are about to start on homicide laws. This interesting legal news out of California, headlined "California sets new limits on who can be charged with felony murder," comes at a very convenient time for me. Much more importantly, the law might mean less time in prison for others who got convicted of murder despite having no intent to kill. Here are the basic details:
Gov. Jerry Brown signed legislation on Sunday that limits who can be prosecuted for felony murder to those who commit or intend to commit a killing. The new law, which goes into effect on Jan. 1, scales back California’s current felony murder rule, which allows defendants to be convicted of first-degree murder if a victim dies during the commission of a felony — even if the defendant did not intend to kill, or did not know a homicide took place.
For defendants facing prosecution for the crime, the new law could mean a shot at less time in prison. Hundreds of inmates serving time will be able to petition the court for a reduced sentence.
The new felony murder law, a bipartisan proposal co-authored by Sen. Nancy Skinner (D-Berkeley) and Sen. Joel Anderson (R-Alpine), is among a series of criminal justice policies enacted under the Brown administration to reduce the numbers of those incarcerated, and give prisoners more chances of early release and services to better prepare them to enter society. State lawmakers this legislative session also eliminated the use of money bail and reduced punishment for teens under 15.
Defense lawyers and other supporters say the new prosecution standards requiring proof of intent will make the state’s felony murder law similar to how prosecutors charge other crimes. Cases in which an officer was killed will not be subject to the new law, which goes into effect on Jan. 1. But law enforcement groups opposed the changes, arguing it could lead to more violent people on the streets....
Lawmakers who supported Senate Bill 1437 called the state’s felony murder law archaic and blamed it for disproportionately long sentences imposed on people who did not kill anyone. A 2018 survey that found 72% of women serving a life sentence for felony murder in California did not commit the homicide. The average age of people charged and sentenced under the statute was 20, according to the report from the Anti-Recidivism Coalition and Restore Justice, a nonprofit that helps offenders reenter society....
On Sunday, Skinner called the law a historic and reasonable fix, bringing California in line with other states such as Arkansas, Kentucky, Hawaii, Massachusetts and Michigan that have narrowed the scope of their felony murder rules. “California’s murder statute irrationally treated people who did not commit murder the same as those who did,” she said in a statement released Sunday. “SB 1437 makes clear there is a distinction, reserving the harshest punishment to those who directly participate in the death.”
Tuesday, September 25, 2018
"Safe Injection Sites and the Federal 'Crack House' Statute"
Alex Kreit, who I am lucky to have time to hang out with this semester as he serves as the first Visiting Professor at The Ohio State University's new Drug Enforcement and Policy Center, has this new paper now posted on SSRN that has the same title as the title of this post. Here its abstract:
Safe injection sites have become the next battlefield in the conflict between state and federal drug laws. A safe injection site is a place where injection drug users can self-administer drugs in a controlled environment under medical supervision. They have been operating in other countries, including Canada, for decades and a wealth of evidence suggests that they can help to reduce overdose deaths. To date, however, no U.S. city or state has sanctioned a safe injection site. Until recently, safe injection sites were politically untenable, seen as a form of surrender in the war on drugs. This dynamic has changed over the past few years as prominent politicians from both parties have called for an end to the drug war and the opioid epidemic has grown increasingly dire.
Efforts to start a safe injection site are currently underway in at least 13 cities and states. Four cities — New York, Philadelphia, San Francisco, and Seattle — have gone so far as to announce plans to open an injection site. There is just one small problem. They appear to violate the federal “crack house” statute, which makes it a crime to maintain a drug involved premises. The Department of Justice has not yet taken a formal position on safe injection sites. But in a New York Times editorial, Deputy Attorney General Rod Rosenstein threatened that “cities and states should expect the Department of Justice to meet the opening of any injection site with swift and aggressive action.”
Surprisingly, this looming conflict has gone almost entirely overlooked by legal academics. Meanwhile, the public debate has assumed that the status of safe injection sites under federal law is clear. In this article, I argue that assumption is wrong. Despite the crack house statute, an obscure provision of the federal Controlled Substances Act (CSA) might allow states and localities to establish government-run safe injection sites. Buried in the CSA is a statute that immunizes state and local officials who violate federal drug laws in the course of “the enforcement of any law or municipal ordinance relating to controlled substances.” This provision was almost surely intended to protect state and local police officers who possess and distribute drugs in connection with undercover operations. But, I argue, the text of the immunity provision and the little caselaw that exists interpreting it suggests it could shield government-run safe injection sites from federal interference.
Monday, September 24, 2018
Details on not yet complete sentencing of Bill Cosby
The sentencing of Bill Cosby following his conviction on three state charges in Pennsylvania got started today, but did not reach a conclusion. This lengthy New York Times article, headlined "Bill Cosby Sentencing: Psychologist Says Threat to Women Remains," reports on what transpired. Here are excerpts:
In the first of two days of hearings to determine Bill Cosby’s sentence for sexual assault, a psychologist for a state panel testified that Mr. Cosby deserved to be categorized as a “sexually violent predator” because he had a personality disorder that pushed him to have sex with nonconsenting partners.
The finding by the psychologist for Pennsylvania’s Sexual Offenders Assessment Board can be a factor in sentencing and in the conditions imposed on a person found to be a predator, both in prison and afterward. But the final decision rests with Judge Steven T. O’Neill who is presiding over the hearing that could end Tuesday with one of the world’s best-known entertainers entering a prison cell.
Mr. Cosby’s lawyer, Joseph P. Green, had argued that Mr. Cosby’s age, 81, and legal blindness meant he was no risk, especially since there have been no new allegations of sexual abuse leveled against him since 2004. “How’s he going to meet these people?” said Mr. Green. “There is no reasonable prospect that an 81-year-old blind man is likely to reoffend.”
But the psychologist, Kristen F. Dudley, said she did not believe the disorder had dissipated with age. “It is possible that he has already met someone who could be a future victim,” she said. She said that, while Mr. Cosby had declined to meet with her, she was able to draw that conclusion by going through “boxes of documents,” including transcripts from Mr. Cosby’s two trials, one of which ended in April with his conviction on three counts of aggravated indecent assault. Mr. Cosby was convicted of drugging and assaulting Andrea Constand, a former Temple University employee for whom he emerged as a mentor....
Mr. Cosby’s team said its expert witness could not testify until Tuesday, so Judge O’Neill agreed to wait until then to make a decision on the predator determination and Mr. Cosby’s sentence. If the judge agrees with the board’s psychological assessment, Mr. Cosby would be required to have routine counseling for the rest of his life, and even if not sentenced to prison, he would be required to report monthly to the police.
Mr. Cosby’s legal team had objected to the whole discussion, asserting that the legality of the state’s predator determination process is questionable because, among other things, it does not use the “beyond reasonable” doubt formula for findings in criminal cases. “The statute is unconstitutional,” said Mr. Green, but the judge found otherwise.
Mr. Cosby had faced a maximum 30-year prison term, 10 years for each of three counts of aggravated indecent assault he was convicted of. But Judge O’Neill chose on Monday to merge the counts, as allowed when they stem from the same event. In this case, they originated with an encounter in January 2004 when, Ms. Constand said, Mr. Cosby sexually assaulted her after giving her pills that made her drift in and out of consciousness.
In their remarks, prosecutors asked Judge O’Neill to sentence Mr. Cosby to a five- to 10-year term. “By deterring this type of conduct with a sentence that is appropriate will say that you can no longer get away with this,” the district attorney, Kevin R. Steele, told the court....
Mr. Green argued in favor of house arrest, saying Mr. Cosby is a danger to no one and that the court must be careful not to allow public opinion to affect its decision-making. “In this case we rely on you to make sure that that public advocacy doesn’t affect the application of the rule of law,” he said, adding later, “It’s your obligation to make sure that the sentencing decision is not affected by all that noise.”
Judge O’Neill will also have to consider state guidelines that recommend, but do not mandate, appropriate sentence ranges. Those guidelines, which account for any previous criminal record (Mr. Cosby has none), the seriousness of his offense, and mitigating and aggravating factors, suggest a range of about 10 months to four years. (Sentences in Pennsylvania are given as a range of a minimum and a maximum. Inmates with good behavior may be eligible for parole when they have reached the minimum.)...
Ms. Constand, who now works as a massage therapist in Canada, spoke only briefly as her victim’s impact statement had already been incorporated into the record. “The jury heard me,” she said, “Mr. Cosby heard me and now all I am asking for is justice as the court sees fit.”... Though dozens of other women have accused Mr. Cosby of drugging and sexually assaulting them, Judge O’Neill rejected a prosecution request to allow any of them to provide their accounts at the hearing.
Mr. Cosby’s defense team chose not to present additional witnesses to discuss, for example, Mr. Cosby’s character or any good works. But in his remarks, Mr. Green emphasized what he called Mr. Cosby’s youth of hardship and racism, his time in the United States Navy and discussed his educational achievements....
Mr. Cosby’s lawyers have filed several motions suggesting that they will file an appeal that challenges the judge’s rulings and even the judge’s personal integrity. A key question for Tuesday will be whether Mr. Cosby is allowed to remain out on bail while he pursues those appeals, a process that could take years.
His lawyers will argue that he is not a flight risk, and that he is not likely to commit another crime. But if Judge O’Neill were to permit him to stay at home, the judge would surely face bitter criticism from the many female accusers eager for closure this week. “I don’t think the judge will let him out on appeal; he has had his freedom for a long time,” said Barbara Ashcroft, a former prosecutor.
Prior related posts:
- You be the state judge: what sentence for Bill Cosby for conviction on three counts of aggravated indecent assault?
- "Why Bill Cosby may not spend any time in prison"
- "Are Elderly Criminals Punished Differently Than Younger Offenders?"
- "Will Bill Cosby’s Trip From America’s Dad to Sex Offender End in Prison?"
US Sentencing Commission releases new report on application of mandatory minimum penalties specific to federal identity theft offenses
Via email, I learned that the US Sentencing Commission has released another big report as part of its terrific series of recent reports diving into the application of federal mandatory minimum sentencing provisions. This latest report is titled "Mandatory Minimum Penalties for Federal Identity Theft Offenses," and its basic coverage and key findings are outlined on this USSC webpage. Here are excepts from the summary:
This publication examines the application of mandatory minimum penalties specific to identity theft offenses. Using fiscal year 2016 data, this publication includes analyses of 18 U.S.C. § 1028A, which provides for a two-year mandatory minimum penalty, as compared to identity theft offenses that do not carry mandatory minimum penalties, as well as the impact of these offenses on the Federal Bureau of Prisons (BOP) population....
Mandatory minimum penalties for identity theft offenses are applied less often in the federal system compared to other mandatory minimum penalties.
Offenders convicted under section 1028A comprised only 1.6 percent (n=978) of federal offenders sentenced in fiscal year 2016....
The percentage of identity theft offenders convicted under section 1028A has steadily increased, more than doubling from 21.9 percent in fiscal year 2006 to 53.4 percent in fiscal year 2016. This percentage is more than ten percentage points higher than reported in the Commissions 2011 Mandatory Minimum Report, when it was 42.6 percent....
Sentences imposed pursuant to section 1028A are longer than sentences imposed for identity theft offenses not carrying a mandatory minimum penalty.
In fiscal year 2016, the average sentence length for offenders convicted of at least one count under section 1028A was more than double the average sentence length for offenders convicted of an identity theft offense not carrying a mandatory minimum penalty (51 months compared to 22 months)....
In addition, other charging and plea decisions also play a role in the application and impact of identity theft mandatory minimum penalties....
The average sentence for offenders who were convicted under section 1028A and another statute was more than double the average sentence for offenders convicted only under section 1028A (54 months compared to 22 months)....
The section 1028A mandatory minimum penalty impacts Black offenders more than any other racial group.
Black offenders were convicted under section 1028A at a higher rate than any other racial group. In fiscal year 2016, Black offenders represented 49.8 percent of all identity theft offenders, yet accounted for 58.7 percent of offenders convicted under section 1028A....
Black offenders were also convicted under section 1028A at the highest rate when considering identity theft offenders within each racial group. In fiscal year 2016, a majority (63.1%) of Black identity theft offenders were convicted under section 1028A, which was higher than the rate for White offenders (47.8%), Other Race offenders (42.0%), and Hispanic offenders (41.1%).
Black offenders were also most likely to be convicted of multiple counts under section 1028A, comprising 58.5 percent of such offenders, followed by White offenders (25.5%), Hispanic offenders (13.2%), and Other Race offenders (2.8%).
Because I do not follow this area of federal sentencing all that closely, I do not know just what to make of the racial data reported here. But I must admit to being persistently discouraged by criminal justice data that persistently shows more application of our toughest penalties against persons of color.
September 24, 2018 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)
Thursday, September 20, 2018
"Will Bill Cosby’s Trip From America’s Dad to Sex Offender End in Prison?"
The title of this post is the headline of this lengthy New York Times review of the high-profile sentencing set to take place at the start of next week. The article includes some original analysis of Pennsylvania sentencing outcomes, and here are some excepts that should be of interest to sentencing fans:
When Bill Cosby arrives at the Montgomery County Courthouse next week to be sentenced for sexual assault, he will find out whether prison is the final stop on his descent from beloved entertainer to disgraced felon. But the judge making that decision, Steven T. O’Neill, will confront his own personal pressures, weighty expectations and knotty legal challenges. Chief among them: What to do with an 81-year-old sex offender who could become one of the most famous Americans ever to enter a cell?
At a time when the country is finally reckoning with a culture of predatory sexual abuse by powerful men, Judge O’Neill is likely to survey a courtroom in Norristown, Pa., that is filled with many of the dozens of women who say Mr. Cosby drugged and assaulted not just Andrea Constand, but them, too. A large number of these women expect a long prison sentence, one that will put an exclamation mark on the first major conviction of the #MeToo era.
“My wound was greatly healed by the guilty verdict in the spring,” said Lili Bernard, an actress who says that Mr. Cosby drugged and raped her in the early 1990s. “But to see him in handcuffs, that would be like, ‘Wow.’ We, the victims, deserve that.”
Prosecutors have said they will push for the maximum 30-year prison term: 10 years on each of three counts of aggravated indecent assault. But Mr. Cosby’s lawyers are sure to fight that, depicting him as a frail old man with failing vision, incapable of assaulting another woman or surviving a long sentence.
And Judge O’Neill will have to consider state guidelines that recommend, but do not mandate, appropriate sentence ranges. A New York Times analysis of Pennsylvania court data for the past five years found that offenders convicted of crimes similar to Mr. Cosby’s often did not receive the maximum penalty, but were more typically given sentences of two to five years....
Mr. Cosby’s spokesman, Andrew Wyatt, confirmed that Mr. Cosby would appeal his conviction, but declined to specify on what grounds.... Mr. Wyatt said Mr. Cosby would ask to remain free on bail, post-sentencing, while he pursues his appeal, a process that could take years. If Judge O’Neill were to allow that, he would surely face criticism from the many female accusers looking to find closure in the case.
“We will all feel very let down by that,” said Victoria Valentino, a former model for Playboy who says Mr. Cosby drugged and raped her in Los Angeles in 1969....
Testimony concerning prior alleged crimes is only allowed in Pennsylvania, as in other states, if, among other conditions, it demonstrates a signature pattern of abuse. But its inclusion is extremely rare, and Judge O’Neill never explained why he allowed the five additional women to testify in the trial this year after allowing only one additional accuser to speak at Mr. Cosby’s first trial in 2017. That ended in a mistrial after the jury failed to reach a verdict. “The No. 1 issue is definitely that big change, of letting in those additional complainants in the case,” said Shan Wu, a former sex-crimes prosecutor in Washington. “I am sure that Cosby’s team are licking their chops.”
Experts say judges are often more lenient about bail in cases where the appeal issues are viewed as strong. “When someone has a legitimate issue,” said Brian Jacobs, a former federal prosecutor in New York who has studied the topic, “and there’s an argument that certain evidence should not have been allowed that could reduce the chance of a conviction at retrial, then there is an interest in allowing that person to stay out on bail.”
Mr. Cosby, who has denied sexually abusing any of the women, is currently free on $1 million bail, though he is confined to his suburban Philadelphia home and has to wear a GPS monitoring device. After Mr. Cosby’s conviction, prosecutors had immediately asked for his bail to be revoked, but Judge O’Neill said he did not view Mr. Cosby as a flight risk, one of the criteria weighed in such a decision. Legal experts said it was generally uncommon in Pennsylvania for offenders to be allowed to remain free on bail, pending appeal, after a judge had sentenced them to incarceration.
Mr. Cosby was convicted on these three counts: penetration with lack of consent, penetration of the victim while she was unconscious, and penetration after administering an intoxicant. The New York Times reviewed state sentencing data for 121 cases over the past five years in which the most serious conviction was for at least one of those three counts. Mr. Cosby is far older than all of the others convicted. Their median age was 36, though in a few cases, the offender was in his late 60s.
A vast majority of the offenders also received fewer than 10 years, with a median sentence of two to five. But there were several cases in which judges gave maximum sentences of 20 years or more to offenders who had been convicted on multiple counts of aggravated indecent assault, or a single count in tandem with other, lesser crimes.
In some of those cases, the judge eschewed a common practice of making multiple sentences concurrent and instead ruled that they be served consecutively. In another case, the person qualified for a more severe sentence because he was viewed as a repeat offender under Pennsylvania’s sex offender laws.
Mr. Cosby had never before been convicted of a crime, and his team is expected to argue that his three counts should be merged into a single count, a decision that would mean that he would face a prison term of no more than 10 years.
Prosecutors have asked that an unspecified number of women who have accused Mr. Cosby of sexually assaulting them be allowed to testify at the sentencing hearing, a move that one of Mr. Cosby’s lawyers, Joseph P. Greene Jr., is trying to block. But Ms. Constand will certainly be allowed to speak at the hearing, as will Mr. Cosby, if he so chooses. The person being sentenced usually has the last word.
Mr. Jacobs, the former federal prosecutor, said that even if none of the other women were allowed to speak, he had to believe that the number of accusers who say Mr. Cosby preyed on them for decades would be an important factor in Judge O’Neill’s thinking. One purpose of sentencing in such a high-profile case can be to send a message that might deter others, he said. “The judge would have to be conscious of the fact that this is one of the earliest sentences in the Me Too era,” Mr. Jacobs said.
Judge O’Neill declined to comment for this article. But Dennis McAndrews, a Pennsylvania lawyer who has known the judge since they attended Villanova University School of Law together, said he did not expect Judge O’Neill to have any problem navigating the maze of factors in this sentencing. “He has been a judge for 14 years,” Mr. McAndrews said, “and in terms of experience and temperament, he has got all the tools necessary to assimilate and synthesize every piece of information that will come before him.”
Prior related posts:
- You be the state judge: what sentence for Bill Cosby for conviction on three counts of aggravated indecent assault?
- "Why Bill Cosby may not spend any time in prison"
- "Are Elderly Criminals Punished Differently Than Younger Offenders?"
Sunday, September 16, 2018
"A Defense of Modern Risk-Based Sentencing"
The title of this post is the title of this new paper authored by Christopher Slobogin now available via SSRN. Here is its abstract:
In theory, accurate assessments of offender risk can save money, promote efficient allocation of correctional resources, and better protect the public. In pursuit of these goals, some jurisdictions have begun using structured means of assessing relative risk. This article briefly describes modern risk assessment instruments, the reasons why they might be preferred over traditional means of assessing risk, and three principles — the fit, validity and fairness principles — that should govern their use. It then contends that, when limited by these or similar principles, criminal justice dispositions can justifiably be based on assessments of risk, despite concerns about their reliability, consistency and legitimacy.
Inaccuracy and disparity is as prevalent in desert-based sentencing as it is in risk-based sentencing. More importantly, desert-based sentencing is not as consistent with, and risk-based sentencing is not as inimical to, autonomy and dignity values as is commonly thought. The overall goal of these arguments is to defend modern risk-based sentencing against abolitionist proposals that could do more harm than good, both to offenders and to a punishment system that, at least in the United States, is obscenely harsh.
Friday, September 07, 2018
US House passes broad rewrite of the federal definition of "crime of violence" without any hearings
While a number of seemingly popular federal sentencing reform bills and marijuana reform bills have waited years for a vote in one or another chamber of Congress, the "Community Safety and Security Act of 2018," H.R. 6691, was passed through the US House of Representatives this morning barely a week after its introduction. This new Reason piece provides some details under a full headline that captures the essentials: "House Passes Bill to Reclassify Dozens of Offenses as 'Crimes of Violence': Opponents say the bill, rushed to the floor without a hearing, would dangerously expand what's considered an 'aggravated offense'":
Republicans in the House passed a bill this morning that would reclassify dozens of federal crimes as "crimes of violence," making them deportable offenses under immigration law. Criminal justice advocacy groups say the bill, rushed to the floor without a single hearing, is unnecessary, is overbroad, and will intensify the problem of overcriminalization.
The Community Safety and Security Act of 2018, H.R. 6691, passed the House by a largely party-line vote of 247–152. Among the crimes that it would make violent offenses are burglary, fleeing, and coercion through fraud.
"Groups on the right and the left are deeply concerned about the bad policy in this bill and the unfair process through which it came to the floor," Holly Harris, the executive director of the U.S. Justice Action Network, said in a statement to Reason. "At a time when we have bipartisan support for criminal justice reforms that will safely reduce incarceration and better prioritize public safety, passing a bill that does just the opposite makes no sense at all."
In April, the Supreme Court ruled in Sessions v. Dimaya that the definition of a "crime of violence" used for federal immigration law — conviction under which can lead to deportation proceedings — was unconstitutionally vague. House Republicans crafted the bill, they say, in response to the Supreme Court's recommendations in that case. But the criminal justice reform advocacy group FAMM warned that the bill "would label seemingly nonviolent offenses such as burglary of an unoccupied home and fleeing as violent offenses."...
The bill was also opposed by the House Liberty Caucus, which released a statement saying that the legislation "expands unconstitutional federal crimes and provides grossly disproportionate consequences for nonviolent offenses."...
Rep. Karen Handel (R-Ga.) claims the bill is urgently needed to keep, as its name suggests, communities safe from violent crime. "We don't have the privilege to squabble over hypotheticals that have no bearing on the application of this law," Handel said on the House floor. "I can assure my colleagues this bill is not overly broad. It's not a dangerous overexpansion. Instead, it's a carefully crafted response to the Supreme Court's recommendations."
Democrats and criminal justice groups also objected to the speed at which the bill sailed to the House floor. It was introduced just a week ago and did not have a single hearing or markup prior to today's vote. The House Liberty Caucus calls the process "farcical."
In a tweet, Jason Pye, the vice president of legislative affairs at the libertarian-leaning group FreedomWorks, writes: "In my view, this bill is mostly politics. I agree that Dimaya requires a fix, but this bill has flaws that could have, and should have, been worked out in committee markup. It's shameful that this bill was handled this way."
Especially because the definition of "crime of violence" under federal law matters in lots of arenas beyond immigration, I am hopeful that the Senate will take a more careful and deliberative approach to this issue than has the House. I am also amazed at how quickly complicate legislation can be moved through part of the legislative process when there is a political will to do so (even when it is unclear whose political will is in operation).
Tuesday, September 04, 2018
Federal district court finds Louisiana LWOP sentence for low-level recidivist unconstitutionally excessive under Eighth Amendment (and local DA will not appeal to Fifth Circuit)
A helpful reader made sure I did not miss this local press report, headlined "Judge orders release or resentencing of St. Tammany man serving life for burglary," discussing a notable ruling from the federal district court in New Orleans. Here are the basics:
When he went before a judge in 2010, Patrick Matthews was a 22-year-old father of two who had a criminal record but had never spent a day in prison. But to the office of former north shore District Attorney Walter Reed, he was a hardened criminal who deserved a life sentence as a habitual offender for the crime of simple burglary. Matthews received that sentence with no chance at parole in a state where “life means life.”
Eight years later, Reed is a convicted federal felon, though his case is on appeal. The Legislature has changed the law so that no one could receive a sentence like Matthews’ today, but Matthews himself, now 31, remains behind bars at a prison in St. Gabriel.
On Wednesday, however, U.S. District Judge Nannette Jolivette Brown said Matthews’ life sentence violates the U.S. Constitution’s ban on “cruel and unusual” punishment. She ordered him to be resentenced to a lesser term or released within 120 days.
Current 22nd Judicial District Attorney Warren Montgomery’s office is not appealing Brown’s decision, although prosecutors could still seek to keep him in prison for several years more. Attorney Justin Harrell said his client’s family is ecstatic. “At least there’ll be an end to it, as opposed to that indefinite life sentence,” Harrell said.
Although the federal court ruling hinged on the specific facts of Matthews’ case, it is in line with a larger shift in the past decade away from Louisiana’s strict mandatory minimum sentences. In 2013, the American Civil Liberties Union estimated that 429 people in Louisiana were serving sentences of life without possibility of parole for nonviolent offenses — more than in any other state. Criminal justice reform advocates like the ACLU singled out Matthews as an egregious example of the state’s penchant for sending people away for life for nonviolent offenses.
The Legislature changed the habitual offender law in 2017 to make it less strict. However, those changes did not affect sentences already in place. With his appeals in state court exhausted, Matthews had only the federal courts to ask for mercy.
Brown agreed to adopt the recommendation of Magistrate Judge Janis van Meerveld, who acknowledged that it was rare for the federal courts to weigh in on a state sentence. However, Meerveld said, Matthews presented an unusual case.... Meerveld said she had “no hesitation in finding that a sentence of life imprisonment without the possibility of parole for a youthful, drug-addicted offender guilty of nothing more than two clusters of minor, nonviolent property crimes crosses the line from merely harsh to grossly disproportionate.”
Prosecutors under both Reed's and Montgomery’s administrations consistently opposed Matthews’ appeals, but lately their stance has changed. In a short brief filed in July, Assistant District Attorney Matthew Caplan replied to a question from the judge as to whether the sentence was grossly disproportionate. “It appears that way,” he said.
As this press account reveals, US District Judge Nannette Jolivette Brown granted relief on "Matthews' excessive sentence claim" on the basis of the recommendation of US Magistrate Judge Janis van Meerveld. Judge van Meerveld wrote an extended opinion explaining her recommendation in Matthews v. Cain, No. 2:15-cv-00430-NJB (E.D. La. Aug. 13, 2018), and that opinion can be downloaded below (and merits a full read). Here are some key passages therein (emphasis in original):
Of course, the mere fact that a sentence is harsh does not mean that it is disproportionate. Nevertheless, the undersigned has no hesitation in finding that a sentence of life imprisonment without the possibility of parole for a youthful, drug-addicted offender guilty of nothing more than two clusters of minor, nonviolent property crimes crosses the line from merely harsh to grossly disproportionate. As one scholar has noted: “[T]here is no uglier disproportionality than a man, guilty of a minor crime, banished to a cage for the remainder of his life.” Craig S. Lerner, Who’s Really Sentenced to Life Without Parole?: Searching for the “Ugly Disproportionalities” in the American Criminal Justice System, 2015 Wis. L. Rev. 789, 793 (2015) (footnote omitted)....
[A]at the time Matthews was sentenced, Louisiana law punished a wide swath of fourth offenders identically, regardless of the nature of their criminal histories. Accordingly, a fourth offender with a history of nonviolent property crimes, such as Matthews, was treated no differently than a fourth offender with a history of violent crimes and/or serious sex offenses. However, the impropriety of equating such disparate offenders was so apparent that the state has now abandoned that practice. In fact, as Matthews noted and the respondent did not dispute, an individual with Matthews’ criminal history would not even be eligible for a life sentence as a habitual offender under current Louisiana law.
The undersigned therefore finds that an interjurisdictional comparative analysis likewise supports a conclusion that Matthews’ sentence is unconstitutionally excessive. It must be noted that this conclusion neither calls into question the general constitutionality of Louisiana’s habitual offender law nor impugns the state’s decision to employ a harsher recidivist sentencing structure than those employed by the vast majority of its sister states. Rather, it is simply a recognition that even among the minority of states that vigorously punish recidivism, a sentence of life imprisonment without parole for a young, drug-addicted, nonviolent, sporadic burglar who had never been sentenced to a single day in prison for his prior offenses is such an anomaly as to be unconstitutional.
Sunday, September 02, 2018
Did the Buffalo Bills cause the Oklahoma City bombing?
The quite silly question in the title of this post is prompted by this remarkable new Politico Magazine piece headlined "How Football Fed Timothy McVeigh’s Despair: The Oklahoma City bomber was once a promising young Gulf War veteran. His slide into isolation and extremism happened to dovetail with the fate of his beloved Buffalo Bills." For a host of reasons, I recommend the full Politico piece (which comes from a book by Sam Anderson), which provides context for this closing excerpt from the article:
Just four weeks after that disastrous Super Bowl loss [by the Bills in 1993], McVeigh found and latched onto the cause that would define the rest of his life. A group of citizens in Waco, Texas — a religious cult called the Branch Davidians — had refused to surrender its weapons to the federal government. A standoff ensued, and McVeigh became obsessed. He read and watched everything he could, then loaded his car with anti-government pamphlets and bumper stickers (“When guns are outlawed, I will become an outlaw”) and drove down to see the action firsthand.
He sold his paraphernalia to other militants and gave interviews to the news media in support of the persecuted. When, some weeks later, the Waco situation went terribly wrong — the FBI set fire to the compound, killing almost everyone inside — McVeigh watched the news footage and wept. That injustice became the core of his case against the United States government. Revenge became his life’s mission.
I am not saying that Timothy McVeigh bombed Oklahoma City in 1995 because the Buffalo Bills lost four Super Bowls in a row. (They made it back in 1994 and — incredibly — lost that one too, cementing their reputation as the greatest losers in NFL history.) Such a claim would be absurd. Human motives are incalculably complex. But that Buffalo heartbreak was one of the many shadows that fell across McVeigh’s life between his unstable childhood and his perpetration of mass murder in Oklahoma City.
The almost unbelievable failure of the Bills, and the civic pain it caused, amplified his native pain. After McVeigh returned from the Gulf War, his Bills fandom was one of the few positive social networks he was able to plug back into, one of the most powerful, stable, visceral communities to which he unquestionably belonged. Its failure was devastating, to him and to everyone else in the area. To this day, even well-adjusted Buffalonians walk around imagining alternate lives in which their team actually won four Super Bowls in a row, becoming arguably the greatest team in NFL history, putting the city on the map in a way it otherwise never could have dreamed of.
Or at least won one Super Bowl, securing a happy little foothold in history. Instead, that 1990s Bills team is remembered as a tragic joke. It’s easy to pretend that sports doesn’t matter in real life, but for many millions of people, it does. It matters profoundly, every day. After Super Bowl XXVII, Timothy McVeigh went looking for somewhere else to be, something else to do — something bigger, more meaningful, more real. Reality had failed him, in so many ways, so he went off to pursue his own fantasy of justice, very far from Buffalo.
Criminal justice fans know that, among other echoes, the Oklahoma City bombing played a key role in federal habeas reforms that still matter profoundly every day to just about everyone serving long prison terms. But beyond spotlighting one legal echo of the worst home-grown terror mass murder of modern history, I thought this article serves as an interesting and important reminder that the roots of evil and violent behavior are often quite varied and unpredictable.
Wednesday, August 29, 2018
Texas jury hands down 15-year prison term after convicting police officer of murder for shooting unarmed teen
As reported by CNN here under the headline "Ex-officer sentenced to 15 years in Texas teen's shooting death," a Texas jury that handed down a notable murder conviction yesterday followed up today with a notable sentencing determination. Here are some details:
A former Texas police officer was sentenced to 15 years in prison Wednesday for the shooting death of an unarmed black teen last year in the Dallas suburbs.
A jury convicted former Balch Springs Officer Roy Oliver, 38, of murder on Tuesday for killing 15-year-old Jordan Edwards. Jurors returned to court Wednesday for his sentencing, where prosecutors sought at least 60 years, while the defense argued for 20 years or less.
Dallas County District Attorney Faith Johnson called Oliver a "killer in blue" who violated his oath to protect citizens. Her colleague, Michael Snipes, made the reference to Mr. Hyde, the violent side of Dr. Jekyll in Robert Louis Stevenson's novella. Defense attorney Bob Gill argued that his client, who fired into a vehicle carrying Edwards had to decide quickly how best to protect his partner.
The rare guilty verdict in the trial of a police officer stunned relatives, prompting gasps and sobs in the courtroom. Most police-involved shooting deaths, such as Philando Castile in Minnesota and Alton Sterling in Louisiana, have ended in acquittals or no charges despite national protests condemning police brutality. "We don't want another parent to have to go through what this family has had to deal with," Jordan's family attorney, Daryl Washington, said on Tuesday. "This case is not just about Jordan. It's about Tamir Rice, it's about Walter Scott, it's about Alton Sterling, it's about every African-American... who have been killed and who have not gotten justice."...
Convictions such as Oliver's are still a rarity mostly because when an officer says the person flashed a gun or made a sudden move, jurors tend to side with them, said Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law. "At the end of day, officers in their badge and uniform enjoy the benefit of the doubt," Clarke said last year....
Few police officers face trial in shooting deaths, and even fewer are convicted. In December, former South Carolina officer Michael Slager was sentenced to 20 years in federal prison in the 2015 shooting death of Walter Scott. Slager's 2016 state murder trial ended in a mistrial.
Thursday, August 23, 2018
Reality Winner's agreed-upon (and record-long and below-guideline) 63 month sentence for leaking classified information becomes a reality
In this post a few months ago, I wondered about how Reality Winner, the former Air Force linguist prosecuted for leaking classified information, came to an agreement with federal prosecutors that fixed her federal sentence at 63 months in prison." This local article, headlined "Reality Winner receives record-setting prison sentence," reports on the sentencing promised in this plea agreement becoming a reality. Here are some details:
Reality Winner on Thursday received a record-setting prison sentence — five years and three months behind bars — for leaking a top-secret government report about Russian meddling in the 2016 election. “I sincerely apologize and take full responsibility for my actions,” the former National Security Agency contractor told Chief U.S. District Court Judge J. Randal Hall in a federal court in Augusta. “In particular, I want to apologize to my family.”
Bobby Christine, U.S. attorney for the Southern District of Georgia, told reporters after the sentence hearing that the government had determined Winner’s actions “caused exceptionally grave damage to U.S. national security.”
“That harm,” he said, “included but was not limited to impairing the ability of the United States to acquire foreign intelligence information similar to the information disclosed.”
“Make no mistake, this was not a victimless crime,” he also said. “Winner’s purposeful violation put our nation’s security at risk, not in a speculative way or hypothetical way but in a very real way, a very direct way.”
Like the judge in the case, Christine said Winner’s sentence is meant to serve as a deterrent. “Winner will serve a term of incarceration that will give pause to others who are entrusted with our country’s sensitive national security information and would consider compromising it,” he said. “Anyone else who may think of committing such an egregious and damaging wrong should think both of the prison sentence imposed today and the very real damage done.”
Winner faced up to 10 years in prison for her crime. But her plea deal with prosecutors called for her to serve five years and three months behind bars. That is longer than anyone else has been sentenced for an “unauthorized disclosure to the media,” federal prosecutors said in a court filing this month. Both Winner’s attorneys and the prosecutors urged Hall to agree to the sentence spelled out in her plea deal.
“The government advises the court that despite the agreed-upon sentence being below the applicable guidelines range, it would be the longest sentence served by a federal defendant for an unauthorized disclosure to the media,” the prosecutors said in their court filing.
The prosecutors added avoiding a trial would prevent them from having to reveal sensitive government information in court. “The agreement reflects a fair resolution of the defendant’s criminal culpability, especially when balanced against the further harm to the national security that would likely result from a trial,” the prosecutors said.
The prosecutors also cited several other similar federal cases in which defendants received shorter prison sentences. In 2013, former FBI bomb technician Donald Sachtleben was sentenced to 43 months in prison for leaking classified information to the Associated Press about a foiled bomb plot in Yemen. That same year, former CIA officer John Kiriakou was given a 30-month sentence for revealing to a freelance journalist the identity of an undercover CIA agent. Two years later, former CIA officer Jeffrey Sterling got a 42-month sentence for leaking to The New York Times classified information about a secret operation to disrupt Iran’s nuclear weapons program.
Winner, 26, the prosecutors said, mailed a copy of a NSA document to The Intercept, an online publication. The Intercept published an article based on the report, saying Russian military intelligence sent spear-phishing emails to more than 100 local election officials and launched a cyberattack against a Florida-based voting software supplier that contracts in eight states.
The Press Freedom Defense Fund, which provides legal support to journalists and whistleblowers and is a program of The Intercept’s parent company, called Winner’s sentence “completely unjust.” “Demonstrating her passion for her country, she heroically — at great personal risk — alerted fellow Americans to vital information that Russia had tampered with the 2016 U.S. elections,” said the Press Freedom Defense Fund, which helped with the appeal of whistleblower Chelsea Manning, a former soldier convicted of violating the Espionage Act. “Her selfless act makes her a true patriot, not a criminal.”
Prior related post:
Tuesday, August 21, 2018
"Punishing Criminals for Their Conduct: A Return to Reason for the Armed Career Criminal Act"
The title of this post is the title of this timely new paper now available via SSRN authored by Sheldon Evans. Here is the abstract:
For over twenty-five years, the Armed Career Criminal Act has produced inconsistent results and has taxed judicial economy perhaps more than any other federal sentencing mechanism. This recidivist sentencing enhancement is meant to punish habitual criminals based on their numerous past crimes, but the Supreme Court’s application of the Act too often allows habitual criminals to escape the intended enhancement on a legal technicality. This comes as a result of the Court’s categorical approach, which punishes habitual criminal offenders based on the statutory elements of their past crimes rather than the conduct of their past crimes.
In an effort to find solutions for this ailing doctrine, this Article analyzes how states have structured their own recidivist sentencing laws to avoid the same problems wreaking havoc in the federal courts. Of all the state approaches, a conduct-based approach is most promising because of its practical application and ideological consistency. Moreover, the many roadblocks articulated by the Court over the years that have supposedly prevented it from taking a conduct-based approach are overcome after considering the constitutional and practical sentencing landscape.
Monday, August 20, 2018
Texas jury convicts doctor of raping incapacitated patient ... then sentences him to probation for 10 years
It is sometimes assumed that having juries impose sentences will produce harsher outcomes, but a recent rape case from Texas provides an example of a jury imposing only a non-prison sentence after returning a guilty verdict in a rape case. This Houston Chronicle story, headlined "Many surprised at sentence for ex-Baylor doctor who raped a Houston hospital patient." Here are some of the details:
When a former Houston doctor was sentenced to probation Friday for raping an incapacitated patient at a county hospital, the punishment surprised defense attorneys, disappointed law enforcement, elicited concern from a rape victims advocacy group and sparked outrage on social media.
The doctor, who has been stripped of his license, admitted during the trial that he had sexual contact with the woman during the night shift at Ben Taub Hospital in 2013, but told jurors it was consensual. Although he was not assigned to her case, he slipped into her room anyway after he noticed her breast implants....
The jury five women and seven men sentenced Dr. Shafeeq Sheikh, a former Baylor College of Medicine resident, to 10 years on probation for raping the patient while she was tethered to machines and receiving treatment for an acute asthma attack.
The jurors found Sheikh guilty Thursday after deliberating for 14 hours over two days. The conviction means Sheikh, 46, must be a registered for the rest of his life as a sex offender. Jurors recommended the 10-year probated sentence for the doctor and suspension of a $10,000 fine after deliberations on Friday, recommendations that visiting Senior District Judge Terry L. Flenniken was required by law to follow.
During argument for the sentencing phase of the trial Friday, Assistant District Attorney Lauren Reeder asked jurors to keep in mind that Sheikh exploited his access to harm a vulnerable person. “He sought her out. He chose her to prey on,” Reeder said, noting that Sheikh checked the woman’s chart and knew exactly what medicines she had been prescribed. “You know he’s the type of man who would go in multiple times, testing the waters, seeing how far he could go and get back to his normal business after that.”...
Sheikh’s defense lawyer, Stanley Schneider, asked the jury to have mercy on a man whose wife and children had suffered greatly from his actions and who had been punishing himself for five years for this one shameful, erratic act. He said he hoped they would sentence Sheikh, who has no prior felonies, to probation. “The dreams of a man, the childhood dream to become a doctor, were shattered by his conduct. He destroyed his own dreams,” Schneider said. “What he has done to himself and his family is punishment. They are serving his sentence with him. His children are serving his sentence with him.”...
Prosecutors respect the process that rendered the result, said Dane Schiller, a spokesman for District Attorney Kim Ogg. “After being presented all the evidence, the jury convicted this man of rape and decided that he should be sentenced to 10 years of probation,” Schiller said. “The jury voted on behalf of the community to determine his sentence, and although prosecutors sought prison time, we respect this process, and the jury’s decision, which carries with it a lifetime of registering as a sex offender.”...
Both the victim, who is now 32, and the former doctor took the stand during the eight-day trial, providing contradictory accounts of what happened the night of Nov. 2, 2013. The victim said a doctor came to her bedside in the dark and began touching her breasts during a chest exam. She said she was weak, sore and confused, and tried to summon a nurse with the call button. The man returned two more times, and raped her without using a condom.
Sheikh said the patient took his hand and placed it on her breasts. He was intrigued by her breast implants and returned to her room again. At this point, he testified, she began touching his genitals and demonstrated with her body language that she wanted to have sex with him. He said he knew it was a breach of his marriage vows and the Hippocratic oath, but he succumbed to his impulse. He told jurors he understood that it was consensual sex....
One factor that could have impacted what some saw as a lenient sentence was the testimony from his wife, brother and family friends, who spoke about his vital role as the father of four children. Attorney Paul Schiffer, a former prosecutor who has devoted more than four decades to defending people charged with sex offenses, said he thought Sheikh was fortunate. “Defendants who take the stand and deny they’re guilty statistically are in a worse position to get probation,” Schiffer said. “But various factors, including their history while on bond and the impact incarceration could have on their own children can be a significant factor.”
He and Kiernan, who also defends people accused of rape, said it also may have been the case that jurors had residual doubt about his culpability. Kiernan suggested there was another important factor jurors may have mulled over. “The real question is whether the best interest of the defendant and society are served by sentencing him to the penitentiary,” he said.
In trying to understand this outcome, I wonder if the jury might also have been influenced by the fact that the defendant here is subject to a lifetime on the sex offender registry. (I assume Texas law allows the jury to be informed of this fact; judges certainly know this fact when deciding on a sentence in a serious sex offense case.)
"America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis"
The title of this post is the title of this notable and timely new paper authored by Leo Beletsky and now available via SSRN. Here is its abstract:
Nearing the end of its second decade, the overdose crisis in the United States has gone from bad to worse. Despite the advent of a supposed “public health” approach to this epidemic, progress on scaling up evidence-based prevention and response measures remains slow. Meanwhile, criminal law and its enforcement continue to dominate the arsenal of policies invoked to address the crisis.
This Article examines the surging popularity of one such approach. Now on the books in the majority of U.S. states and federally, drug-induced homicide laws and their analogues implicate dealers in accidental overdose fatalities. By engaging criminal law theory and empirical legal research, I articulate an interdisciplinary instrumentalist critique of these measures in response to the overdose crisis. Data systematically extracted from reports on 263 drug-induced homicide prosecutions informs concerns about facial and as-applied defects. Patterns identified suggest rapid, accelerating diffusion in these prosecutions in many hard-hit jurisdictions; pronounced enforcement and sentencing disparities by race; and broad misclassification of drug-using partners, family members, and others as “dealers.”
Aside from crowding out evidence-based interventions and investments, these prosecutions run at complete cross-purposes to efforts that encourage witnesses to summon lifesaving help during overdose events. This analysis illustrates an urgent opportunity to critically re-assess the architecture and mechanisms of drug control in the U.S., reframing criminal justice reform as a public health imperative vital to improving the response to the worst drug crisis in America’s history.
UPDATE: Over at The Crime Report, this short report discusses this article under the headline "Prosecuting Dealers for Opioid Deaths Called ‘Bad Justice Policy’."
August 20, 2018 in Data on sentencing, Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)
Wednesday, August 15, 2018
Assailing the new expanded mandatory minimum for "career offenders" being pushed by AG Jeff Sessions
As noted in prior posts here and here, earlier this month Attorney General Jeff Sessions gave a big speech advocating for reform to the Armed Career Criminal Act in part as a response to the Supreme Court's 2015 ruling in Johnson finding a part of ACCA vague. Writing at The American Prospect, Manuel Madrid has this new piece unpacking the particulars of this effort. The full headline and subheadline summarizes the themes of the piece: "Jeff Sessions and the Conservative Nostalgia for Harsh Sentencing: A new Republican bill would slap nonviolent criminals with 15-year mandatory minimum sentences. White-collar crimes, property crimes, and drug-related offenses would all count toward being considered a 'career armed criminal'.” Here are some excerpts:
Attorney General Jeff Sessions’s full-court press for more tough-on-crime policies has found a home in Congress. Speaking before a crowd of law enforcement officials and prosecutors ... in Little Rock, Arkansas, Sessions called for legislation to reinstate an aggressive Reagan-era sentencing law that targets repeat offenders....
About an hour before the speech, Republican Senators Orrin Hatch of Utah, Tom Cotton of Arkansas, and Lindsey Graham of South Carolina offered a glimpse into what such a fix would look like with their new bill, the Restoring the Armed Career Criminal Act of 2018. The proposed legislation revises the language in the original act and broadens its scope to avoid possible legal challenges, while extending hefty mandatory minimum prison sentences to violent and nonviolent criminals alike....
While the original act might have been defended on the grounds that it at least attempted to hone in on some violent criminals, the Cotton-Hatch-Graham redux abandons all pretenses of even trying. Under the new bill, nonviolent crimes such as identity theft, fraud, and money laundering could earn a person the label of armed career criminal. And the list goes on: Property crimes like burglary and theft and a score of drug-related crimes would all be on the table.
Before the 2015 Supreme Court decision, about 600 offenders were charged each year under the Armed Career Criminal Act. That number dropped to 265 last year. The change would likely open the floodgates to more mandatory minimum prison sentences, which already disproportionately affect minorities. In 2017, more than half of felons charged with unlawful possession of a firearm were black and almost 20 percent were Hispanic. Only 4.4 percent were charged as armed career criminals....
During his time in the Senate, Sessions, along with Senator Cotton, persuaded other Republicans to join them in torpedoing a bipartisan sentencing reform bill in 2016 which would have shortened existing mandatory minimums and narrowed the scope of drug convictions that triggered them....
The drastic expansion of the Armed Career Criminal Act proposed in the Cotton-Hatch-Graham bill would accelerate the federal government’s backsliding on criminal justice, achieving little more than earning the praise from a minority of conservative politicians nostalgic for the hardline policies of decades past.
Prior related posts:
- "Attorney General Sessions Delivers Remarks Calling for a Legislative Fix to the Armed Career Criminal Act"
- Senators Orrin Hatch and Tom Cotton proposing Johnson fix to expand reach of Armed Career Criminal Act
Tuesday, July 31, 2018
After guilty plea, frat member gets 3 months of house arrest and 27 months of probation for role in hazing death of Penn State pledge
As reported in this AP piece, headlined "Penn State fraternity member gets house arrest in pledge death case," a high-profile college campus tragedy led to a notable state sentencing today in the heart of Pennsylvania. Here are the details:
A Penn State fraternity member who plied a pledge with vodka the night he was fatally injured in a series of falls avoided jail time Tuesday when a judge sentenced him to three months of house arrest.
Ryan Burke, who had pleaded guilty to four counts of hazing and five alcohol violations, apologized to the parents of Tim Piazza, who died in February 2017 after a night of drinking and hazing in the Beta Theta Pi house. Burke said he was “truly sorry” and accepted responsibility for his role in the events that led to Piazza's death from severe head and abdominal injuries he suffered the night he accepted a pledge bid.
Centre County Judge Brian Marshall also gave Burke 27 months of probation, fined him more than $3,000 and ordered 100 hours of community service. “The court was shocked by what happened that night,” Marshall said, adding he was “mindful that there were many involved.”
Burke's defense attorney, Philip Masorti, said afterward he thought the sentence was fair. “This was an accident that nobody wanted to happen,” he told Marshall. “It led to a tragic death.”
Burke, 21, of Scranton, is the only one so far to plead guilty in the case, in which more than two dozen members of the now-closed fraternity face charges. A hearing for some others is planned for next month, and trial for at least some will be in February.
Prosecutor Brian Zarallo with the attorney general's office said Burke took a leading role in what occurred, as he led the fraternity's effort to recruit new members and physically led them into a drinking station “gauntlet” that began a night of heavy drinking that was captured on the building's elaborate video security system. Piazza “didn't know what was waiting for him,” that night, Zarallo said. “The defendant did. The defendant knew exactly what was waiting for him.”
He played a videotape in which a ball cap-wearing Burke could be identified plying the wannabe members with a bottle of 80-proof vodka, and said Burke seemed nonchalant about Piazza's medical condition after he endured a bad fall down the basement steps. Burke “can't be bothered” and left Piazza for others to deal with him, Zarallo said, describing his actions as callous.
“This is a big joke to these people,” Zarallo said, telling the judge that five pledges vomited that night and one other injured an ankle.
Piazza's parents, who have become anti-hazing advocates, recounted the horror of being summoned to the hospital to find their son with a range of visible and very severe injuries, not far from the death that would soon follow.... Jim Piazza credited Burke for pleading guilty, but noted that occurred after a judge ruled there was sufficient evidence to send the case to county court for trial....
When Burke was first charged in November, he also was accused of involuntary manslaughter, aggravated assault, simple assault and reckless endangerment, but the attorney general's office dropped the most serious charges in April and a district judge subsequently dismissed some other counts.
This other local article reports that prosecutors were asking for three months of imprisonment. I suspect that what prosecutors sought for a defendant who played a leading role, as well as the actual sentencing imposed, might have a big impact on the various charges still facing the other two dozen members of the fraternity. It is likely that the sentence given to Burke will end up impacting future plea negotiations as well as any sentences that might be imposed on any defendants convicted after a trial. In tragic incidents like this one in which is it so hard to know just what kind of sentence is "right" in response to unintended harms, I sense it becomes easier for lawyers and judges to gravitate toward sentences already imposed in related cases.
"Why Is It Wrong To Punish Thought?"
The title of this post is the title of this new article posted to SSRN authored by Gabriel Mendlow. Here is its abstract:
It’s a venerable maxim of criminal jurisprudence that the state must never punish people for their mere thoughts — for their beliefs, desires, fantasies, and unexecuted intentions. This maxim is all but unquestioned, yet its true justification is something of a mystery. In this Essay, I argue that each of the prevailing justifications is deficient, and I conclude by proposing a novel one.
The proposed justification captures the widely shared intuition that punishing a person for her mere thoughts isn’t simply disfavored by the balance of reasons but is morally wrongful in itself, an intrinsic (i.e., consequence-independent) injustice to the person punished. The proposed justification also shows how thought’s immunity from punishment relates to a principle of freedom of mind, a linkage often assumed but never explained.
In explaining it here, I argue that thought’s penal immunity springs from the interaction of two principles of broad significance: one familiar but poorly understood, the other seemingly unnoticed. The familiar principle is that persons possess a right of mental integrity, a right to be free from the direct and forcible manipulation of their minds. The unnoticed principle, which I label the Enforceability Constraint, is that the state’s authority to punish transgressions of a given type extends no further than its authority to thwart or disrupt such transgressions using direct compulsive force. Heretofore unexamined, the Enforceability Constraint is in fact a signal feature of our system of criminal administration, governing the scope and limits of the criminal law.
Friday, July 27, 2018
At resentencing, former New York Assembly speaker gets (only?) seven years in federal prison for corruption
As reported here by the New York Post, "Sheldon Silver, the disgraced ex-speaker of the New York state Assembly, was sentenced to seven years in prison — less than the 12 years he was sentenced to previously." Here is the context:
The judge cited the 74-year-old Silver’s advanced age and the substantial monetary penalties she plans to levy, including a $1.75 million fine, in the lower sentence.
Silver was convicted in May — for a second time — of selling his office for $4 million in kickbacks, plus $1 million in profits, tied to two schemes. Before his arrest in 2015, Silver was one of the most powerful men in Albany — along with Gov. Andrew Cuomo and former Senate Majority Leader Dean Skelos.
At his 2016 sentencing, Judge Valerie Caproni — who sentenced him again this time around — ordered him to serve 12 years in prison and to forfeit nearly $5.2 in ill-gotten gains and another $1.75 million in fines. But Silver never served a day in prison because his 2015 conviction was overturned on appeal amid questions about the validity of the jury instructions, which were raised after the US Supreme Court narrowed the definition of bribery.
Silver’s lawyer Michael Feldberg has said he plans to appeal the second verdict as well, saying the feds once again failed to prove that Silver promised anything in return for the lucrative referrals he received....
During Friday’s sentencing, Caproni blasted Albany’s culture of corruption, noting that recent months have all “touched, directly and indirectly, the ‘three men in a room'” — the derisive term used to describe the governor and top leaders of the Senate and Assembly. “This has to stop,” she said. “New York state has to get its act together and do something institutionally to stop corruption.”
Still, she commended Silver for apologizing for his conduct this time around, which he did not do in 2016. “That was a wise decision on Mr. Silver’s part,” she said. “Mr. Silver’s conduct clearly caused discernible harm.” She also remarked on signs of wear and tear. “I feel like visually he’s aged more than the three years that have gone by chronologically,” she said.
Silver also spoke at the sentencing, saying that he is “extremely, extremely remorseful” for having “brought out a great deal of distrust in NY’s government.”
As noted in prior posts linked below, the original 12-year sentence given to Silver was still way below a calculated guideline range of 20+ years. And this time around, the feds were asking for a sentence "substantially in excess" of 10 years. So, Silver probably should feel a bit lucky he did not get an even longer term than seven years. But even with some likely time off for good behavior, Silver now cannot be making any real retirement plans until 2025.
Prior related posts:
- Another prominent elderly corrupt politician presenting dynamic federal sentencing issues
- Former New York Assembly speaker gets lengthy (way-below guideline) federal sentence for corruption
- "Can a criminal be sentenced to run a 'help desk'?"
Monday, July 23, 2018
Spotlighting a remarkably thoughtful federal sentence in a remarkably challenging setting
Over at his blog Simple Justice, Scott H. Greenfield has this terrific new post spotlighting a terrific new sentencing opinion by US District Judge John Kane in US v. Jumaev, No. 12-cr-00033-JLK (D. Col. July 18, 2018) (available here). Because Scott's posting provide effective context and commentary concerning the case and sentencing, I will here just quote the first two paragraphs of Judge Kane's 44-page sentencing decision to clarify the core concern of the opinion:
After his co-defendant Jamshid Muhtorov informed him that the Islamic Jihad Union (IJU) was in need of financial support, Defendant Bakhtiyor Jumaev mailed Mr. Muhtorov $300. Mr. Jumaev wrote only a single check, and the funds never reached the IJU or any other foreign terrorist organization. Mr. Jumaev had no specific plot or plan and did not intend to further any via his contribution. The idea to aid the terrorist organization was proposed and facilitated entirely by Mr. Muhtorov. Indeed, Mr. Jumaev had no direct contact with the members of any terrorist organization. And, significantly, he never committed any act of violence, nor did he advocate for any particular violent act.
Mr. Jumaev now comes before me for sentencing after having been found guilty by a jury of two counts in violation of 18 U.S.C. § 2339B, namely (1) conspiring and (2) attempting to provide material support in the form of $300 to the IJU, a designated foreign terrorist organization. Although his actions certainly are sufficient for the jury to have found him guilty of these two very serious crimes, the above summary illustrates how his guilt rests on far less culpable conduct than that of all other defendants of which I have been made aware who have been convicted under the same statute.
At the risk of turning this matter into a parlor game, I wonder if readers might be inclined to share, before clicking through to the opinion, their predictions as to (a) the defendant's calculated guideline range, (b) the sentence was urged by federal prosecutors, and/or (c) the sentence imposed by Judge Kane. Alternatively, I would also love to hear folks' opinions on just what kind of federal sentence someone should get for simply sending, upon request, a $300 check to support the Islamic Jihad Union.
Thursday, July 19, 2018
Notable GOP Senators talk up mens rea reform while FIRST STEP Act and SRCA languish in their chamber
Senators Chuck Grassley and Orrin Hatch have this notable new commentary in the Washington Examiner under the headline "Mens rea reform and the criminal justice reform constellation." Here are excerpts:
A growing chorus of voices from across the country and political spectrum are calling out for reforms to our nation’s criminal justice system, and rightfully so. Our criminal justice system should be tough but fair. Criminal behavior should be punished, but the punishment should fit the crime. And those we send to prison should be afforded opportunities to participate in programs that prepare them to rejoin society when they complete their sentences.
As Congress works on bills to improve fairness in sentencing and bolster programs to better prepare inmates for life after prison, we should not ignore the root problem of overcriminalization. There are more than 4,500 criminal laws on the books and more regulatory crimes than the Congressional Research Service was able to count. And when many of these crimes are drafted without clear criminal intent requirements, it becomes increasingly easy for unsuspecting Americans to be sent to jail for conduct they had no idea was against the law.
Mens rea reform, in addition to sentencing and prison reform, is an essential part of the criminal justice reform constellation. We can do only so much to improve fairness in our nation’s criminal justice system if we continue to allow individuals to be sent to prison for conduct they did not know was unlawful, even when Congress has not specified that their crimes should be strict liability offenses.
Fairness and justice demand that we clarify our criminal laws. Statutes and regulations that impose criminal penalties should be clearly written so they prevent and punish criminal conduct even as they the safeguard the liberty of the innocent. That’s why it is important that Congress take up and pass the Mens Rea Reform Act of 2018, which we’ve introduced, to improve clarity in existing criminal laws and regulations and encourage greater care when crafting future ones.
Our bill recognizes that the mens rea standard that works for one crime might not be appropriate for another. It improves on past proposals to impose a one-size-fits-all mens rea standard to all laws and regulations that lack such clarity. Instead, it empowers Congress and federal agencies to fill in the gaps with the appropriate level of intent required to constitute a crime. The bill calls on the federal government to identify the criminal statutes and regulations that lack a mens rea requirement. This will allow Congress to clarify the mens rea standard in criminal statutes through the legislative process. The bill then directs federal agencies to put in place a clear mens rea standard for all regulatory crimes through a transparent process that invites public input on what the appropriate mens rea standard should be. Under our bill, agencies have six years to issue new rules to clarify the required level of intent. If the agencies don’t offer this clarification, they won’t be able to enforce the regulation....
We firmly believe that mens rea reform is an important piece of the broader criminal justice reform landscape. Together with the bipartisan Sentencing Reform and Corrections Act, which we both support, the Mens Rea Reform Act will improve fairness and clarity in our criminal justice system.
While I share the Senators affinity for mens rea reform, at this point I am eager to hear any news about any movement in the Senate with respect to the FIRST STEP Act or the Sentencing Reform and Corrections Act. One would hope that the current chair of the Senate Judiciary Committee (Grassley) and a powerful former chair (Hatch) could actually help get some legislation enacted, but the mysteries of government continue to mysterious prevent the passage of legislation that has widespread support in both houses of Congress.
It has now been nearly two months since the FIRST STEP passed the House by a huge margin (details here) and it has now been more than five months since the SRCA passed the Senate Judiciary Committee by a significant margin (details here). Prez Trump has suggested he will sign whatever bill gets delivered to his desk. But as the summer marches on, I am struggling to remain optimistic that the full Senate will get to vote on any of these reform proposals anytime soon. Sigh.
Thursday, July 12, 2018
AG Jeff Sessions "surges" federal war against synthetic opioids in select counties
This new press release from the US Justice Department, headed "Attorney General Jeff Sessions Announces the Formation of Operation Synthetic Opioid Surge (S.O.S.)," reports on a notable new federal front in the modern war on drugs. Here are the details (with my emphasis added):
Attorney General Jeff Sessions today announced Operation Synthetic Opioid Surge (S.O.S.), a new program that seeks to reduce the supply of deadly synthetic opioids in high impact areas and to identify wholesale distribution networks and international and domestic suppliers.
As part of Operation S.O.S., the Department will launch an enforcement surge in ten districts with some of the highest drug overdose death rates. Each participating United States Attorney’s Office (USAO) will choose a specific county and prosecute every readily provable case involving the distribution of fentanyl, fentanyl analogues, and other synthetic opioids, regardless of drug quantity. The surge will involve a coordinated DEA Special Operations Division operation to insure that leads from street-level cases are used to identify larger scale distributors. Operation S.O.S. was inspired by a promising initiative of the United States Attorney’s Office in the Middle District of Florida involving Manatee County, Florida.
"We at the Department of Justice are going to dismantle these deadly fentanyl distribution networks. Simply put, we will be tireless until we reduce the number of overdose deaths in this country. We are going to focus on some of the worst counties for opioid overdose deaths in the United States, working all cases until we have disrupted the supply of these deadly drugs," Attorney General Sessions said. "In 2016, synthetic opioids killed more Americans than any other kind of drug. Three milligrams of fentanyl can be fatal — that's not even enough to cover up Lincoln's face on a penny. Our prosecutors in Manatee County, Florida have shown that prosecuting seemingly small synthetic opioids cases can have a big impact and save lives, and we want to replicate their success in the districts that need it most. Operation S.O.S. — and the new prosecutors who will help carry it out — will help us put more traffickers behind bars and keep the American people safe from the threat of these deadly drugs."...
In Manatee County, a county just south of Tampa with a population of about 320,000, overdoses and deaths skyrocketed in 2015 (780 overdoses/84 opioid related deaths) and 2016 (1,287 overdoses/123 opioid related deaths). In summer of 2016, local law enforcement reported frequent, street-level distribution of fentanyl and carfentanil for the first time.
To combat this crisis, the Middle District of Florida committed to prosecuting every readily provable drug distribution case involving synthetic opioids in Manatee County regardless of drug quantity. The effort resulted in the indictments of forty five traffickers of synthetic opioids. Further, from the last six months of 2016 to the last six months of 2017, overdoses dropped by 77.1% and deaths dropped by 74.2%. Overall, the Manatee County Sheriff’s Office went from responding to 11 overdoses a day to an average now of less than one per day.
I am not at all keen on the idea of federalizing every small local drug case, but these reported data from Manatee County, Florida leads me to understand why AG Sessions might want to try to expand a program that he believes has proven distinctly effective. The Attorney General also delivered this speech in conjunction with the announcement of this new surge. Here is how he described the new initiative:
It’s called Operation Synthetic Opioid Surge — or S.O.S.
I am ordering our prosecutors in 10 districts with some of the highest overdose death rates—including this one—to systematically and relentlessly prosecute every synthetic opioid case. We can weaken these networks, reduce fentanyl availability, and save lives.
We are going to arrest, prosecute, and convict fentanyl dealers and we are going to put them in jail. When it comes to synthetic opioids, there is no such thing as a small case.
Three milligrams of fentanyl can be fatal. That’s equivalent a pinch of salt. It’s not even enough to cover up Lincoln’s face on a penny. Depending on the purity, you could fit more than 1,000 fatal doses of fentanyl in a teaspoon.
I want to be clear about this: we are not focusing on users, but on those supplying them with deadly drugs.
Manatee County, Florida shows that a united and determined effort, focusing on fentanyl dealers, can save lives. Your counterparts in the U.S. Attorney’s Office in the Middle District of Florida tried this strategy in Manatee County, which is just south of Tampa. Like many parts of this country, they had experienced massive increases in opioid deaths in 2015 and 2016.
In response, they began prosecuting synthetic opioid sales, regardless of the amount. They prosecuted 45 synthetic opioids traffickers—and deaths started to go down. From the first six months of 2016 to 2017, overdose deaths dropped by 22 percent. This past January, they had nearly a quarter fewer overdoses as the previous January. The Manatee County Sheriff’s Office went from responding to 11 overdoses a day to an average of one a day. Those are remarkable results.
As you implement this proven strategy, I am sending in reinforcements to help you. Last month, I sent more than 300 new AUSAs to districts across America .... It was the largest prosecutor surge in decades.
Today I am announcing that each of these ten districts where the drug crisis is worst will receive an additional prosecutor. As a former AUSA and U.S. Attorney myself, I know what you can do — and my expectations could not be higher. Our goal is to reduce crime, reduce fentanyl, and to reduce deaths, plain and simple. I believe that this new strategy and these additional prosecutors will have a significant impact.
Will guilty plea and statement, after another baby's death, deter reliance on faith-healing more than prior prison terms for Oregon church members?
The question in the title of this post is prompted by this remarkable local crime and punishment story out of Oregon, headlined "Faith-healing parents plead guilty in death of newborn twin.' Here are some essentials (with a few details emphasized) from a case that highlights the potential limits of traditional punishment to deter when individuals are motivated by an even higher power:
The parents of a twin girl who died hours after a home birth attended by dozens of people from the faith-healing Followers of Christ Church pleaded guilty Monday to negligent homicide and criminal mistreatment. It marked the fifth criminal case in Clackamas County after a child's death in the church community over the last nine years but the first to end in a plea deal. The mother, Sarah Elaine Mitchell, 25, and father, Travis Lee Mitchell, 22, each were sentenced to prison for six years and eight months.
In an unusual development, the Mitchells not only acknowledged their failure to provide necessary medical care for their newborn but also said in a statement read aloud by one of their lawyers that "everyone in the church should always seek adequate medical care for our children.''
Sarah and Travis Mitchell are members of the Followers of Christ, which traces its origin to the Pentecostal movement of the late 19th century. Sarah Mitchell is a granddaughter of the church founder, Walter White. Her father is also named Walter White. Sarah Mitchell's father signed the statement, which will be prominently posted inside the church for all to read, under the terms of the plea agreement....
The guilty pleas came in a Clackamas County courtroom before more than 50 church supporters and Multnomah County Circuit Judge Eric J. Bergstrom, who who helped the parties reach a settlement.... Senior Deputy District Attorney Bryan Brock called the outcome of the case, with the couple accepting responsibility and issuing a public statement, a "landmark resolution."
"These are senseless and avoidable deaths, and we keep asking ourselves what will it take" to convince others in the church to get the right medical care for their children, Brock said. He said he hoped the message will be for church followers to "seek medical attention and prayer. They're not mutually exclusive.''
Sarah Mitchell's lawyer Stephen Houze called the couple "utterly sincere, decent, caring human beings," who have suffered with the loss of one of their children while separated in custody. They have had in-jail visits with their surviving daughter, who is now 16 months old and bonding with each parent, Houze said. She remains in foster care. The parents are accepting responsibility for their actions "knowing a price must be paid," Houze said.
The Mitchells' baby died in the master bedroom at the Oregon City home of Sarah Mitchell's parents. It was the same place where Sarah Mitchell's older sister Shannon Hickman delivered a premature baby boy who died eight hours after birth in September 2009.
The first of the twins, Evylen, was born in a breech position -- bottom first, a significant potential complication -- at 2:30 p.m., weighing only 3 pounds, 8 ounces, nearly two months premature. Twenty-three minutes later, Ginnifer was born at 2:53 p.m., weighing only 3 pounds, 6 ounces. Breathing problems persisted for both newborns but no one called 911 or took the girls to a hospital. At 4:36 p.m., a relative texted others, asking, "R u guys hearing that the second baby is dark and they r wanting prayers?" according to investigators.
Over four hours, Ginnifer fought for her life, trying to take oxygen into her underdeveloped lungs. At 6:05 pm., Travis Mitchell "laid on hands" and the family took turns praying for healing as the baby continued labored breathing and changed colors. Ginnifer died at 7 p.m. that day. "I knew she was dead when she didn't cry out anymore,'' her father said, according to court documents.
Both Sarah and Travis Mitchell admitted in interviews that their daughter's death was just like the Hickman case, Brock wrote in court papers. A jury convicted Hickman and her husband of second-degree manslaughter and they were sentenced to six years and three months in prison for not seeking medical treatment for their son born at 32 weeks. "The Mitchells were more knowledgeable of the risks and consequences to their newborns from having experienced the Hickman case," Brock wrote in court documents.
Also present at the birth were Sarah Mitchell's in-laws, three mid-wife birthing assistants and other family, including Sarah Mitchell's eldest sister, Stephanie Edwards, and her husband, Brian, as well as church members....
"We hope that this office is never again forced to prosecute parents in the Followers of Christ Church for neglecting the medical care of their children," the Clackamas County District Attorney's Office said in a statement. "However, we continue to stand ready to do so if the members of that congregation do not heed the call of this family."
The couple showed no emotion in court. As each stood to be handcuffed by sheriff's deputies before they were led out of the courtroom, Travis Mitchell, a 2014 graduate of Oregon City High School, mouthed "I love you" to his parents. The Mitchells will get credit for the 13 months they've already been in custody and credit for good time served. They'll face three years of post-prison supervision.
I always find stories of parents convicted and imprisoned for allowing their children to die are always heart-wrenching, and I find it almost hard to believe that the same large family would allow two newborns to die in the same room in their house in seemingly the same way only years apart. And, as the title of this post is meant to highlight, it is remarkable to realize that a prior manslaughter conviction with a significant prison term was itself not enough to deter the family from the same sort of criminal behavior the second time around.
For the sake of everyone involved, I sure hope a statement prominently posted inside the church will start leading these church members to see the importance of getting traditional medical care. But I can understand why prosecutors want to stress their willingness to keep prosecuting neglectful parents.
Monday, July 09, 2018
Lots more great new Quick Facts publications from US Sentencing Commission
In this post a few days ago, I praised the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format"). In my prior post, I gave special attention to the new Quick Facts on "Women in the Federal Offender Population," but now I see there are new Quick Facts on just about every major federal sentencing topic based on the USSC's 2017 fiscal year data. Here are just a few of these publications I have been checking out:
Drug Trafficking (July 2018)
Methamphetamine Trafficking (July 2018)
Heroin Trafficking (July 2018)
Marijuana Trafficking (July 2018)
Section 924(c) Offenders (July 2018)
Felon in Possession of a Firearm (July 2018)
Robbery Offenses (July 2018)
Theft, Property Destruction, & Fraud (June 2018)
There are so many big and small stories to notice here, and I find especially interesting the sentence-length and trend data appearing in this document about federal drug sentencing. It shows, inter alia, that despite all the talk about the opioid crisis and enhanced prosecution efforts, in Fiscal Year 2017 there were far more sentencings for methamphetamine trafficking than any other drug and these meth offenders got on average a sentence nearly two years longer than the average heroin dealer sentenced in federal court. Also, of all drug dealers sentenced in federal court in Fiscal Year 2017, roughly three times as many had their guideline range reduced as a minor or minimal participant than had their guideline range increased for having a leadership or supervisory role in a drug offense.
Tuesday, June 26, 2018
So how was it decided Reality Winner should get 63 months for leaking classified information? Does it seem about right?
The questions in the title of this post are prompted by this news out of the federal criminal justice system via the New York Times: "Reality L. Winner, a former Air Force linguist who was the first person prosecuted by the Trump administration on charges of leaking classified information, pleaded guilty on Tuesday as part of an agreement with prosecutors that calls for a sentence of 63 months in prison." Here is more of the particulars and some context:
Ms. Winner, who entered her plea in Federal District Court in Augusta, Ga., was arrested last June and accused of sharing a classified report about Russian interference in the 2016 election with the news media. Ms. Winner, who is now 26, has been jailed since her arrest and wore an orange prison jumpsuit and white sneakers to the hearing. Her decision to plead guilty to one felony count allows the government both to avoid a complex trial that had been scheduled for October and to notch a victory in the Trump administration’s aggressive pursuit of leakers.
“All of my actions I did willfully, meaning I did so of my own free will,” Ms. Winner told Chief Judge J. Randal Hall on Tuesday. Throughout the hearing, Ms. Winner kept her hands behind her back while she answered questions about whether she understood the terms of the plea deal.
Ms. Winner, who was honorably discharged from the Air Force in 2016, was working as a contractor for the National Security Agency when she obtained a copy of a report that described hacks by a Russian intelligence service against local election officials and a company that sold software related to voter registration. The Intercept, an online news outlet that a prosecutor said Ms. Winner admired, published a copy of the top secret report shortly before Ms. Winner’s arrest was made public. The report described two cyberattacks by Russia’s military intelligence unit, the G.R.U. — one in August against a company that sells voter registration-related software and another, a few days before the election, against 122 local election officials.
At a detention hearing last year, the prosecutor, Jennifer G. Solari, said that Ms. Winner had been “mad about some things she had seen in the media, and she wanted to set the facts right.”...
Once rare, leak cases have become much more common in the 21st century, in part because of such electronic trails. Depending on how they are counted, the Obama administration brought nine or 10 leak-related prosecutions — about twice as many as were brought under all previous presidencies combined.
The Justice Department prosecuted Ms. Winner under the Espionage Act, a World War I-era law that criminalizes the unauthorized disclosure of national-security secrets that could be used to harm the United States or aid a foreign adversary. Ms. Winner’s prosecution galvanized transparency advocates, who mounted a publicity campaign in her support that even included a billboard in Augusta, the east Georgia city where Ms. Winner lived at the time of her arrest. They were particularly infuriated by a judge’s ruling that she be held until her trial....
Ms. Winner is the second person known to have reached a plea agreement with the Trump administration to resolve a leak prosecution. A former F.B.I. agent, Terry J. Albury, pleaded guilty in April, but prosecutors in that case have signaled that they will ask that he serve 46 to 57 months in prison.
The Justice Department has brought at least two other leak-related cases under the Trump administration. Earlier this month, James Wolfe, a former Senate Intelligence Committee staffer, was arrested and charged with lying to the F.B.I. about his contacts with reporters, including a Times reporter with whom he had a personal relationship and whose phone records the department secretly seized, during a leak investigation; Mr. Wolfe has not been charged with leaking classified information, however. He has pleaded not guilty. Also this month, Joshua A. Schulte, a former C.I.A. software engineer, with charged with violating the Espionage Act and other laws based on accusations that he sent a stolen archive of documents and electronic tools related to the agency’s hacking operations to WikiLkeas, which dubbed them the Vault 7 leak. Mr. Schulte had already been facing child pornography charges.
A judge must still decide whether to approve her sentence after reviewing a report that prosecutors will present. But prosecutors’ recommendation of more than five years in prison — followed by three years of supervised release — was unusually harsh for a leak case. For most of American history, people accused of leaking to the news media were not prosecuted at all. In the flurry of cases that have arisen during the 21st century, most convicted defendants were sentenced to one to three-and-a-half years.
One — Chelsea Manning, who was convicted at a military court-martial for sending large archives of military and diplomatic documents to WikiLeaks — was sentenced to 35 years in prison, but served only about seven years because President Barack Obama commuted the remainder of her sentence.
As this article suggests, there is not a lot of history of sentences for these kinds of leaks, and arguably the Chelsea Manning case sets a notable benchmark for how high a sentence might go for this kind of illegal leaking. But there are lots of ways to distinguish Manning and Winner, and Winner still seems to be getting a sentence considerably more severe than most modern leakers. That said, if one believes that deterrence considerations are especially important and perhaps effective in this setting, perhaps it is particularly justifiable for federal prosecutors to try to throw the book at the few high-profile leakers who get convicted.
Notably, as this article notes, a federal judge has to decide whether to accept this particular plea deal with its built-in sentence of 63 months. Comments are welcome concerning whether the judge out to have some pause about doing so.
Terrific new Boston University Law Review symposium on "Misdemeanor Machinery"
I recently received in this mail a hard-copy version of the May 2018 issue of the Boston University Law Review devoted entirely to examining misdemeanors in the US criminal justice system. The full title of the symposium, which had a live component late last year, was "Misdemeanor Machinery: The Hidden Heart of the American Criminal Justice System," and the article all looks terrific. This Editors' Foreword sets the tone:
Misdemeanor courts across the nation churn through millions of cases each year. Misdemeanors are understudied by scholars and underreported by the media. While these cases may be less significant than felonies in the eyes of the public, they have far-reaching consequences in the lives of individual defendants. Collateral consequences often far outstrip criminal sanctions and affect defendants’ housing, employment, education, and status in the United States. As Professor Malcolm M. Feeley aptly put it, “the process is the punishment.”
Periodically, attention is drawn to the misdemeanor courts. This tends to occur in times of discontent and unrest. Historically, reform efforts have largely been short-lived or entirely unsuccessful. But in the wake of public attention to misdemeanor practices in Ferguson, Missouri, the time is ripe for reform.
A dedicated group of scholars met at Boston University School of Law to explore the misdemeanor machinery on November 3-4, 2017. The conference featured both scholars and practitioners seeking to define “misdemeanor,” empirically analyze the misdemeanor system in the United States, explore the ramifications of misdemeanor charges, identify ethical concerns, and propose meaningful reform. The pieces in this Symposium Issue represent each of these perspectives and offer thoughtful next steps for research and reform.
And here are links to all the pieces:
How To Think About Criminal Court Reform by Malcom Feeley
The Scale of Misdemeanor Justice by Megan Stevenson and Sandra Mayson
The Innocence Movement and Misdemeanors by Jenny Roberts
The History of Misdemeanor Bail by Shima Baughman
The Prosecutor’s Client Problem by Irene Joe
Proportionality and Other Misdemeanor Myths by Eisha Jain
Toward Misdemeanor Justice: Lessons from New York City by Greg Berman and Julian Adler
Errors in Misdemeanor Adjudication by Samuel Gross
Monday, June 25, 2018
Can we predict how federal immigration crackdowns will impact the modern drug war?
The question in the title of this post is prompted by this USA Today piece headlined "DOJ: Trump's immigration crackdown 'diverting' resources from drug cases." Here are excerpts:
Federal prosecutors warned they were diverting resources from drug-smuggling cases in southern California to handle the flood of immigration charges brought on by the Trump administration’s border crackdown, records obtained by USA TODAY show.
Days after Attorney General Jeff Sessions instructed prosecutors to bring charges against anyone who enters the United States illegally, a Justice Department supervisor in San Diego sent an email to border authorities warning that immigration cases “will occupy substantially more of our resources.” He wrote that the U.S. Attorney’s Office there was “diverting staff, both support and attorneys, accordingly.”...
Sessions last month ordered federal prosecutors along the southwest border to bring criminal charges against every adult caught entering the United States illegally, a “zero tolerance” push meant to deter migrants. Those cases typically are seldom more than symbolic — most of the people who are charged are sentenced to no additional jail time and a $10 fee — but they have served as the legal basis for separating thousands of children from their parents at the border.
The border crackdown has produced a high-speed assembly line of minor cases in federal courts from California to Texas, more than doubling the caseloads there. This month alone, USA TODAY identified more than 4,100 migrants who were charged with minor crimes after crossing into the United States from Mexico.
Kelly Thornton, a spokeswoman for the U.S. Attorney’s Office, said in a statement that the Justice Department “has given our district the necessary resources -- including 10 additional prosecutor positions plus at least five Department of Defense attorneys -- to prosecute all of these crimes.” She said the number of smuggling cases prosecuted there is on track to go up this year. Still, there are signs that border authorities are seeking to prosecute drug smugglers in state courts instead, even though the possible sentences typically are harsher in the federal system.
The District Attorney’s office in San Diego said Friday that the number of cases submitted to them by border authorities had more than doubled since the administration started its border crackdown. Spokeswoman Tanya Sierra said Homeland Security agents referred 96 drug cases to the office between May 21 and June 21, compared to 47 over the same period last year. Most of the cases involved more than a kilogram of drugs, Sierra said.
Meanwhile, the number of people charged in federal court has dropped since the start of the administration’s zero-tolerance push, said Reuben Cahn, the chief federal public defender in San Diego....
USA TODAY examined 2,598 written judgments in border-crossing cases filed in federal courts along the border since mid-May. In nearly 70 percent of those cases, migrants pleaded guilty and immediately received a sentence of time served, meaning they would spend no additional time in jail. Another 13 percent were sentenced to unsupervised probation, including a condition that they not illegally re-enter the United States. In both cases, that meant they would immediately be returned to immigration officials to be processed for deportation, leaving them in essentially the same position as if they had not been prosecuted.
This newspaper analysis highlights just some ripple effects of any significant change in federal prosecutorial priorities: with more resources developed to federal immigration cases, there may be fewer federal drug cases brought; but more cases may be handed over to state authorities. And, in various settings involving non-citizen subject, the results of state or federal prosecution may be impacted by the fact that deportation will follow any conviction.
Friday, June 22, 2018
SCOTUS rules 5-4 against finding Double Jeopardy Clause limits prosecutors over severed trials
The Supreme Court this morning handed down Currier v. Virginia, No. 16-1358 (S. Ct. June 22, 2018) (available here), dealing with the reach of the Double Jeopardy Clause. Here is how Justice Gorsuch's lead opinion gets started (ending with a question that the Court answers "no"):
About to face trial, Michael Currier worried the prosecution would introduce prejudicial but probative evidence against him on one count that could infect the jury’s deliberations on others. To address the problem, he agreed to sever the charges and hold two trials instead of one. But after the first trial finished, Mr. Currier turned around and argued that proceeding with the second would violate his right against double jeopardy. All of which raises the question: can a defendant who agrees to have the charges against him considered in two trials later successfully argue that the second trial offends the Fifth Amendment’s Double Jeopardy Clause?
The dissent authored by Justice Ginsburg and joined by Justices Breyer, Sotomayor and Kagan, starts this way:
Michael Nelson Currier was charged in Virginia state court with (1) breaking and entering, (2) grand larceny, and (3) possessing a firearm after having been convicted of a felony. All three charges arose out of the same criminal episode. Under Virginia practice, unless the prosecutor and the defendant otherwise agree, a trial court must sever a charge of possession of a firearm by a convicted felon from other charges that do not require proof of a prior conviction. Virginia maintains this practice recognizing that evidence of a prior criminal conviction, other than on the offense for which the defendant is being tried, can be highly prejudicial in jury trials.
After trial for breaking and entering and grand larceny, the jury acquitted Currier of both charges. The prosecutor then chose to proceed against Currier on the severed felon-in-possession charge. Currier objected to the second trial on double jeopardy grounds. He argued that the jury acquittals of breaking and entering and grand larceny established definitively and with finality that he had not participated in the alleged criminal episode. Invoking the issue-preclusion component of the double jeopardy ban, Currier urged that in a second trial, the Commonwealth could not introduce evidence of his alleged involvement in breaking and entering and grand larceny, charges on which he had been acquitted. He further maintained that without allowing the prosecution a second chance to prove breaking and entering and grand larceny, the evidence would be insufficient to warrant conviction of the felon-in-possession charge.
I would hold that Currier’s acquiescence in severance of the felon-in-possession charge does not prevent him from raising a plea of issue preclusion based on the jury acquittals of breaking and entering and grand larceny.
Thursday, June 14, 2018
Sixth Circuit panel struggles to figure out Tennessee law to assess Miller challenge in high-profile case
As reported in this local article, headlined "While considering Cyntoia Brown's case, appeals court scrutinizes conflicting sentencing laws," an interesting federal circuit panel struggled during oral argument today to sort through applicable state sentencing law in an interesting Eighth Amendment habeas case. Here are the details:
A federal appeals court seems poised to consult the Tennessee Supreme Court before they rule on the case of Cyntoia Brown, a Nashville woman serving a life sentence in prison for a murder she committed at 16. Brown's attorneys this year appealed to the Sixth Circuit Court of Appeals in Cincinnati, arguing her life sentence was unconstitutional. The U.S. Supreme Court ruled in 2012 that giving juveniles life sentences without parole was cruel and unusual in most cases.
Brown, now 30, has been locked up since 2004, when she was convicted of shooting 43-year-old Nashville real estate agent Johnny Allen. Allen had picked her up at an East Nashville fast food restaurant and drove her to his home. Prosecutors said she committed a cold blooded murder, then robbed Allen before she fled with his car. Advocates for Brown say she was a victim of child sex trafficking who feared for her life, and that her age and fetal alcohol syndrome made it impossible for her to consider the full ramifications of her actions.
Attorneys representing the state have argued the 2012 ruling from the U.S. Supreme Court does not apply in Brown's case because she is not serving a true life sentence. They cite parts of Tennessee law that suggest Brown could be eligible for release after 51 years behind bars. The three-judge panel in Cincinnati suggested at multiple points that if she was serving a 51-year sentence, the U.S. Supreme Court ruling might not apply.
But Brown's attorneys pushed back, citing another section of the law that says "there shall be no release eligibility" for offenders convicted of first degree murder, like she was. Thorny questions on sentencing law in Tennessee dominated the debate on both sides of the oral arguments Thursday morning, which lasted less than an hour....
At multiple points, the judges read directly from contradictory passages in Tennessee code, as they tried to decipher what portions applied to Brown's case. They suggested that they might seek clarification from the Tennessee Supreme Court before moving forward. Judge Joan L. Larsen, who was appointed by President Donald Trump, asked multiple questions about the proper way to do so.
Judge Amul Thapar, another Trump appointee, aggressively questioned the argument from state attorneys that case law had established a way to cherry pick parts of Tennessee sentencing law to apply to Brown while ignoring other parts. Thapar rubbed his face and shook his head while questioning attorneys on dueling sections of the law. "We're trying to guess what Tennessee is doing here," Thapar said, later adding, "The way I read this statute is that she's got life without the possibility of parole."
The Tennessee Court of Criminal Appeals has already sided with the state on this issue, saying that Brown's sentence is not entirely for life. But Brown's attorneys say the Tennessee Court of Appeals issued a conflicting ruling.
Judge Julia Smith Gibbons, who was appointed by former President George W. Bush, said she couldn't believe a Tennessee court hadn't issued a definitive ruling on the appropriate reading of the sentencing law. Gibbons said Brown's case "raises some interesting, tricky issues."
If the panel does ask the Tennessee Supreme Court to clarify sentencing in this case, that court could decide whether or not it would offer an answer. The appeals court would then take the response into consideration while ruling on the broader case. "Can we certify that to the Tennessee Supreme Court and ask them?" Thapar said. "If they're ever going to answer one question that's the one to answer."...
The judges did not address the argument from Brown's attorneys that she should not be held responsible for a premeditated murder at 16 because fetal alcohol syndrome had slowed her mental development.
The pending federal appeal is one of multiple tracks Brown's attorneys are pursuing in their high-profile attempt to get her out of prison. Brown also is asking Gov. Bill Haslam for clemency; the state parole board made conflicting recommendations to the governor after a hearing in May. Brown's previous appeals have been denied. But a surge of interest from news outlets, celebrities and national legal groups has galvanized efforts that are unusual for a case like hers.
Brown was featured in the documentary "Me Facing Life: Cyntoia's Story" by filmmaker Dan Birman. In 2016, a joint reporting project on juvenile sentencing laws by the USA TODAY NETWORK - Tennessee, Dan H. Birman Productions and "Independent Lens" explored Brown's trial and conviction in depth. Then, in 2017, celebrities including Rihanna and Kim Kardashian West called for Brown's release, dramatically increasing the scrutiny of the case. On social media, the hashtag #FreeCyntoiaBrown went viral.
June 14, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)
Wednesday, June 13, 2018
"The Impact of Proposition 47 on Crime and Recidivism"
Proposition 47 continues to be the subject of much debate. The reform — which reduced penalties for certain lower-level drug and property offenses — has undoubtedly played a significant role in California’s recent efforts to prioritize the state’s prison and jail space for higher-level offenders. Prison and jail incarceration levels declined substantially under Prop 47. We also observe sudden drops in arrests and jail bookings.
The reduced reliance on incarceration raised concerns among some observers about Prop 47’s impact on public safety. We find no convincing evidence that violent crime increased as a result of Prop 47. Though there has been a recent uptick in violent crime, this trend appears to have started prior to the reform. Additional factors unrelated to criminal activity — a change by the FBI in 2014 that expanded the definition of rape, and significant under-reporting of violent crimes from 2008 to 2014 by the LAPD — contributed to the observed increase. Excluding violent crime data from the LAPD shows that recent increases in violent crime rates in California were comparable to those of similar states.
Our analysis does find some evidence of Prop 47’s impact on property crime rates, which went up immediately after the law was implemented. This increase has been primarily driven by larceny thefts, particularly thefts from motor vehicles and shoplifting. We find the increase in the larceny theft rate in California to be nearly 9 percent higher than that of similar states. In 2016, reported shoplifting decreased notably, but we do not see signs of a reduction in thefts from motor vehicles. Considering the high costs of incarceration in California, this highlights the need for alternative crime-reducing strategies, consistent with our earlier research assessing the impact of realignment on crime (see Lofstrom and Raphael 2013).
The policy goals of Prop 47 are to reduce contact with the criminal justice system and to reduce recidivism for lower-level drug and property offenders. Our analysis, using detailed data from 12 California counties, shows declines in jail bookings as well as rearrest and reconviction rates under Prop 47. We find the policy change reduced jail bookings for Prop 47 offenses by more than one-third. Prop 47 also lowered the number of people booked into jail by nearly 50,000 in these counties during the year following its passage.
Lower rearrest rates for individuals released after serving sentences for Prop 47 offenses were driven by a reduction in rearrests for drug possession, while lower reconviction rates were driven by a drop in reconvictions for both Prop 47 property and drug offenses. We find evidence that Prop 47 reduced both arrests by law enforcement and convictions resulting from prosecutions by district attorneys. Reduced levels of correctional contact — which may allow for better continuity of employment and improved family and community stability — could be a factor in these lower recidivism rates. However, given the sudden and noticeable decline in arrests after the reform, we are not able to separate the effects of Prop 47 on individual reoffending behavior from its effects on the practices of criminal justice agencies.
Prop 47 aimed to reduce recidivism rates by shifting resources from incarceration to mental health and substance-use treatment for lower-level drug and property offenders. This redirection of state correctional savings to treatment interventions has only recently been allocated, and thus our recidivism analysis does not capture individuals released after the implementation of these programs. A complete assessment of the impacts of Prop 47 will need to account for how increased interventions may affect crime, criminal justice contact, and recidivism, as well as responses by law enforcement to the reform.
Substantial reductions in reoffending as a result of the treatment programs funded by Prop 47 savings seem unlikely as this funding represents a very small share of corrections spending in California. However, the initiative offers opportunities for local agencies to create or expand promising programs. It also requires that these programs be objectively evaluated, in hopes of identifying and scaling up successful interventions. As local agencies and the state learn more about which programs are effective in reducing recidivism, Prop 47 could provide a path toward the use of more cost-effective, evidence-based strategies within the criminal justice system.
One of several far-reaching corrections reforms, Prop 47 further decreased California’s reliance on incarceration: the state’s incarceration rate is now at levels not seen since the early 1990s. Importantly, crime rates remain historically low, comparable to those in the 1960s. While research so far has not revealed convincing evidence that violent crime has risen as a result of reforms, some property crimes have increased. And though Prop 47 reduced recidivism rates for lower-level drug and property offenses, it is not clear to what extent this is driven by reduced reoffending, as law enforcement and prosecutorial changes likely contributed to the declines. To counteract the increases in property crimes like shoplifting and thefts from motor vehicles — and to improve reentry outcomes of released offenders — policymakers and practitioners will need to work together to identify effective programs and policies that will reduce recidivism and maintain public safety
Sunday, June 03, 2018
Lots worth reading on eve of historic recall vote of Califorinia Judge Aaron Persky after his lenient treatment of Brock Turner
Regular readers surely already know a lot of the story and backstory surrounding the controversial sentencing of Brock Turner and the controversial recall campaign against the judge who sentenced him. That recall campaign culminates in a vote this coming Tuesday, and that has prompted another notable round of media coverage. Here are some recent media pieces with varying degrees of depth:
From CNN here, "Will voters bench the judge who gave a 6-month sentence in the Stanford sexual assault case?"
From the Los Angeles Times here, "Vandalism, threats, broken friendships: The heated campaign to recall judge in Brock Turner case"
From Vox here, "Brock Turner was sentenced to 6 months in jail for sexual assault. Now voters may recall the judge."
From HuffPost here, "When the Punishment Feels Like A Crime: Brock Turner's twisted legacy — and a Stanford professor's relentless pursuit of justice."
I would especially encourage readers to find the time to read the lengthy HuffPost piece, which is particularly focused around Stanford Law Professor Michele Dauber's work on the recall campaign. The reporting in the piece stuck me as particularly thoughtful and balanced, and I learned new things big and small about the campaign and her efforts and goals.
Despite all this new reporting, I must note my own sense that there are still lots of angles on this case that are still not getting fully explored. In particular, these articles and others only give passing mention of the fact that Turner was sentenced to a lifetime on the sex offender registry. I have long speculated that this reality — which I believe was mandatory for his convictions — not only may have largely accounted for Judge Persky's short jail sentence, but also may have been a main reason Turner was unwilling to plead guilty and accept responsibility in the way the victim wished. Ever since BuzzFeed published the full courtroom statement of Turner's victim (available here and recommended reading), I have always been struck by this passage: "Had Brock admitted guilt and remorse and offered to settle early on, I would have considered a lighter sentence, respecting his honesty, grateful to be able to move our lives forward. Instead he took the risk of going to trial, added insult to injury and forced me to relive the hurt as details about my personal life and sexual assault were brutally dissected before the public." This passage still has me wondering about what kind of plea had been offered to Turner and whether the prospect of a lifetime on the sex offender registry was central to his decision to go to trial.
The CNN article linked above does make one (possibly overstated) point about the sex offender registry part of his punishment: "That's a penalty so burdensome that if Turner were to have children someday, he wouldn't be able to get near their school." Of course, being on the registry for life means a whole lot more, too. I continue to wonder not only if that reality influenced Judge Persky, but if other judges in California or around the nation regularly adjust their prison terms knowing the severe impact of the collateral consequences of sex offender registration. I hear stories all the time of prosecutors and defense attorneys looking to "charge or plea around" particular crimes that carry sex offender registration or other severe collateral consequences. If these collateral sanctions influence attorneys, surely they influence sentencing judges in various settings in various ways. I would love to see more reporting on this element of the Turner case and Judge Persky's decision-making (recalling that Persky himself has been a state sex crimes prosecuot). But perhaps only a sentencing nerd like me really cares all that much about this part of the story.
In any event, readers can gear up for the recall election also by reviewing a number of prior posts here about the Brock Turner case. I think it is fair to say that in these posts I have expressed various concerns about both the lenient sentence Turner received and about the campaign to recall Judge Persky. Here is just a sampling of the prior posts this case has generated:
- Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
- "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
- Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
- Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
- California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms
- "Race, Privilege, and Recall: Why the misleading campaign against the judge who sentenced Brock Turner will only make our system less fair"
- "Put Away The Pitchforks Against Judge Persky"
- Judicial panel concludes judge committed no misconduct in the sentencing of Brock Turner
- "Brock Turner: Sorting Through the Noise"
- "I was Raped. And I Believe The Brock Turner Sentence Is a Success Story."
June 3, 2018 in Collateral consequences, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (9)
Monday, May 28, 2018
Sad uncertain realities behind ugly headline about child rape sentencing
The headline of this story understandably caught my attention and had me wondering: "California man sentenced to 90 days of house arrest for rape of 5-year-old girl." A bit of digging revealed, via press reports here and here, a bit more of the story behind the story that would seem to partially explain this outcome. Excerpts below come from the two linked pieces, respectively:
A 79-year-old man who pleaded no contest to felony statutory rape of a child was sentenced this week to 90 days' detention and will not have to register as a sex offender. The sentence upset the parents after they gave emotional testimony at the hearing....
Despite the word "rape," the crime did not involve penetration, said Robert Himelblau, supervising deputy district attorney for San Joaquin County. Gregory Davenport, an attorney for Burgess, said the charge is based on a claim by the girl's mother that she saw Burgess stick his hand down her daughter's pants in 2016.
At the hearing, the judge reminded the parents that they thought the plea agreement was fair when it was reached.... Davenport told the Associated Press on Friday that Burgess accepted the plea deal despite being innocent because he is in frail health and wanted to move on with his life. Burgess denies ever touching the child inappropriately. "The whole case was based upon some minor touching that my client denied even occurred," Davenport said....
Lyle Burgess, 79, was sentenced by San Joaquin County Superior Court Judge Ron Northup to either 90 days in an alternative-work program or in-home detention plus five years of informal probation. He does not have to register as a sex offender.
Burgess, who founded Rare Parts Inc. in Stockton in 1981 — an automotive parts manufacturer and distributor — will in all likelihood opt for in-home detention due to his frail physical and mental health, according to defense attorney Gregory Davenport. “My client maintains his innocence,” Davenport said outside the courtroom.
During Wednesday’s sentencing hearing, both parents of the victim gave emotional testimony about what their daughter has been going through, the impact on their family and their dissatisfaction with Burgess’ conviction. The parents’ names are not being used to protect the identity of the minor victim. “Our daughter has been harmed by this man continuously,” the victim’s mother said through tears, describing two incidents she says she witnessed between Burgess and her daughter at Burgess’ cabin in Calaveras County in the fall of 2016.
“I’m incredibly disgusted by his behavior and continuously disgusted by his lies,” she said before describing his sentence as “getting off so easy” and not registering as a sex offender. “I want other kids to be protected by possible future abuse by this man,” she said.
The victim’s father, who has known Burgess for more than two decades, said: “I don’t have too many prized possessions in this world other than my family. (My daughter) will remember this the rest of her life. She sleeps on the floor outside our room.”
Northup told the parents their statements do have an impact but “courts are somewhat limited” in ruling on a negotiated plea and reminded them that at the time it was reached, they felt it was fair.
The parents and the victim recently filed a civil case against Burgess seeking unspecified damages for sexual abuse and intentional infliction of emotional distress.... Davenport, Burgess’s attorney, said: “I believe the allegations are motivated by greed. They are using this instance to try to gain financially.”
I do not know the ins-and-outs of California plea and sentencing procedure, but these articles suggest that the sentence here was largely determined by the terms of a plea deal (and one that the parents of the victim assented to). This other local article, notably, provides this additional (confounding?) account of matters from the prosecutors:
According to the San Joaquin County District Attorney's Office, Burgess' sentence was initiated by the county court because of his age and health. When Burgess was arrested in 2016, he was originally booked on four counts of lewd acts upon a child. The charge was later changed to unlawful sexual intercourse with a minor, though the DA says there were no allegations the girl was "sexually penetrated." Prosecutors say the plea deal was agreed upon by both Burgess and the girl's family.
I do not know what it means for this sentence to have been "initiated by the county court because of his age and health," but I do know it now sounds as if the sentencing judge largely attributes the outcome to the plea deal and the prosecutions largely attribute the plea deal to the sentencing judge. As I see it, sadness persists from every perspective in this case. And I surmise from my Twitter feed that the case is generating anger, too, and I wonder if recall or other campaigns targeting the judge or DAs might be in the offing.
Sunday, May 27, 2018
Examining thoughtfully modern trend to prosecute overdose deaths as homicides
The New York Times has this lengthy new article headline "They Shared Drugs. Someone Died. Does That Make Them Killers?". The subheadline highlights the basic theme of the piece: "Prosecutors are increasingly treating overdose deaths as homicides, but they aren’t just going after dealers. Friends, family and fellow users are going to prison." To its credit, the Times here tried to dig into qualitative and quantitative stories here, and I recommend this piece in full. Regular readers know that I have lamented, such as in prior posts here and here, that reporting on the decision to use homicide laws in overdose cases often fails to note that many states punish unintentional homicide less severely than the feds punish basic drug dealing. Though the Times fails in this regard as well, it still provides the most thoughtful account of what surrounds these cases. Here are excerpts:
As overdose deaths mount, prosecutors are increasingly treating them as homicide scenes and looking to hold someone criminally accountable. Using laws devised to go after drug dealers, they are charging friends, partners and siblings. The accused include young people who shared drugs at a party and a son who gave his mother heroin after her pain medication had been cut off. Many are fellow users, themselves struggling with addiction.
Such cases are becoming more common even as the role of the criminal justice system in combating drug abuse has become hotly contested, and even as many prosecutors — including those who pursue overdose death cases — say they embrace the push to treat addiction as a public health crisis rather than a crime.
Overdose prosecutions, they say, are simply one tool in a box that should include prevention and treatment. But there is no consensus on their purpose. Some believe they will reduce the flow of drugs into their communities, deter drug use or help those with addiction “hit bottom.” To others, the cases are not meant to achieve public policy goals, but as a balm for grieving families or punishment for a callous act. “I look at it in a real micro way,” said Pete Orput, the chief prosecutor in Washington County outside Minneapolis. “You owe me for that dead kid.”
Who owes whom for what is less clear in the case of the Malcolm family in Breckenridge, Colo., where Michael Malcolm’s younger son was charged in the overdose death of his older brother, with whom he shared drugs purchased on the internet. The cost of prosecution and incarceration, Mr. Malcolm said, would have been better spent on addiction treatment that the family could not afford. “It’s kind of like blaming the leaves on the tree, you know?” he said. “What about the roots?”
In 15 states where data was available, The New York Times found more than 1,000 prosecutions or arrests in accidental overdose deaths since 2015. Between 2015 and 2017, the number of cases nearly doubled. Dozens more cases were documented in news reports. In all, overdose prosecutions were found in 36 states, with charges ranging from involuntary manslaughter to first-degree murder. In Minnesota, the number of such cases — sometimes referred to as “murder by overdose” — quadrupled over a decade. Pennsylvania went from 4 cases in 2011 to 171 last year after making it easier to prosecute....
Many of those convicted are serving hard time: A Long Island woman whose best friend texted her from a business trip asking for heroin was sentenced to six years after he died taking the drugs she sent him. A former pipe fitter in Minnesota who shot speedballs with a mother of three got 11 years. A Louisiana man who injected his fiancée — both were addicted, his lawyer said — got life without parole....
The concept of overdose prosecutions took hold after the cocaine-related death in 1986 of Len Bias, the college basketball star, two days after he was drafted by the Boston Celtics. A friend, who called 911 when Mr. Bias collapsed, was accused of providing the cocaine, but was acquitted. Soon after, states began passing so-called Len Bias or “drug delivery resulting in death” laws. Louisiana made it second-degree murder. Pennsylvania created a crime punishable by up to 40 years in prison. Congress passed the sweeping 1986 Anti-Drug Abuse Act, which included a mandatory minimum sentence of 20 years for federal cases in which drugs resulted in death or serious injury.
The Len Bias laws were supposed to go after drug dealers — “greed-soaked mutants,” Howell Heflin of Alabama called them on the Senate floor. But the role of dealer is far less clear cut than lawmakers envisioned. The legal definition of drug dealing, or “distribution,” typically covers behavior that is common for even casual users, including sharing, giving drugs away or getting reimbursed for a buy. Under complicity laws, helping to arrange a deal can be treated the same as dealing....
Despite the high cost of imprisonment — $33,000 a year on average, compared with roughly $5,000 to $7,000 for treating addiction with methadone — new Len Bias laws have begun to appear. Delaware enacted one in 2016, and West Virginia did so last year. In Rhode Island, Attorney General Peter Kilmartin has proposed a mandatory life sentence....
In order to gain a better sense of where defendants fit on the user-dealer continuum, The Times looked to Pennsylvania, where overdose prosecutions have soared since a change in the law in 2011 made it unnecessary to prove that the accused had malice toward the victim. The Times examined drug-related death cases filed in criminal court in the first half of last year — 82 cases in all, with 80 defendants. At least 59 of the accused were drug users themselves, according to police reports, court filings and interviews with law enforcement officials and defense lawyers. Roughly half had a relationship with the victim other than that of dealer. That group included six boyfriends, one girlfriend, a cousin, a brother and a son. A few of those charged had tried to save the victims. (Good Samaritan laws protect those who call for help from drug possession charges, but generally not homicide charges.)...
Overdose prosecutions picked up steam under the Obama administration. In 2015, the National Heroin Task Force recommended that cases against heroin dealers whose drugs proved fatal should be prioritized for three reasons: the product might be particularly potent, the prosecutions would serve as a deterrent, and the attention would educate the public about the “severe harm caused by heroin.”...
Even hard-liners like John Walters, the director of the White House Office of National Drug Control Policy under President George W. Bush, question the use of overdose homicide prosecutions without more systematic proof that they reduce drug use and emergency room visits. “In the absence of that, this is all gestures,” Mr. Walters said.
But many law enforcement officers hope that the cases act as a deterrent. When five people overdosed in two months in Twin Lakes, Wis. (population 6,000), the police charged 10 with reckless homicide. “We kind of want to put a bubble around our community and say we don’t — we’re not going to accept this here,” said Adam Grosz, the chief of police. But one of his detectives, Katie Hall, said that the arrests had little effect on supply and demand: “If we can take one off, well, then they just go to the next one.”
Paradoxically, the punitive approach to overdoses is underpinned by the same rationale as the push to treat addiction as a public health issue. In the prosecutorial worldview, a criminal investigation dignifies victims by treating their deaths as crimes instead of sad inevitabilities. “The analogy for me is the dead prostitute,” Mr. Orput said. “You know, years ago, the cop would look and go, ‘Well, that’s what happens,’ and that’s what they’d say with the junkie: ‘That’s why we don’t do drugs.’”
Some of many prior related posts:
- Noticing how federal drug laws, rather than state homicide laws, are used to severely punish drug distribution resulting in death
- Another look at trend to prosecute some opioid overdose deaths as homicides
- "An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane"
- Distinct approaches to the opioid epidemic
- Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?
- "Heroin, Murder, and the New Front in the War on Drugs"
Thursday, May 24, 2018
Amazing new empirical research in federal sentencing outcomes detailing disparities based on political background
This week brought this amazing new working paper by Alma Cohen and Crystal Yang titled simply "Judicial Politics and Sentencing Decisions." I did not want to blog about the paper until I had a chance to read it, and doing so make me want to now do dozens of blog posts to capture all the issues the paper covers and raises. The paper's simple abstract provides a hint of why the paper is so interesting and provocative:
This paper investigates whether judge political affiliation contributes to racial and gender disparities in sentencing using data on over 500,000 federal defendants linked to sentencing judge. Exploiting random case assignment, we find that Republican-appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.0 fewer months than similar males compared to Democratic-appointed judges, 65 percent of the baseline racial sentence gap and 17 percent of the baseline gender sentence gap, respectively. These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.
Each of these three sentences could alone justify multiple postings on just research particulars: e.g., I believe a database with over 500,000 sentencings might be the largest ever assembled and analyzed; I wonder if the data looks different for Clinton and Obama judges among the Ds, for Nixon and Reagan and others judges among the Rs; I fear many judge characteristics like prior jobs and connections to certain communities are really hard to control for. In other words, just the scope and methods of this research is fascinating.
Moreover and more importantly, there is great richness in the findings of the full paper. For example, the authors find "statistically significant differences in racial gaps in base offense level and final offense level by judge political affiliation." In other word, the authors have discovered worrisome disparities in how guideline ranges are set/calculated, not just in how judges sentence in reaction to a particular guideline range. Some additional notable findings are summarized in this recent WonkBlog piece at the Washington Post headlined "Black defendants receive longer prison terms from Republican-appointed judges, study finds." Here are excerpts:
Federal judges appointed by Republican presidents give black defendants sentences that are, on average, six to seven months longer than the sentences they give to similar white defendants, according to a new working paper from Alma Cohen and Crystal Yang of Harvard Law School. That racial sentencing disparity is about twice as large as the one observed among judges appointed by Democrats, who give black defendants sentences that are three to four months longer than the sentences they give to white defendants with similar histories who commit similar crimes....
They did find, however, that the gap between sentences for black and white defendants was smaller for more-experienced judges than for less-experienced ones. They also found that differences between how Republican and Democratic judges treat black and white defendants grew larger after the Supreme Court's 2005 decision in United States v. Booker, which gave federal judges much more leeway to depart from federal sentencing guidelines.
Importantly, however, they found that growing differences between Democratic and Republican judges in the post-Booker era are due to Democratic judges reducing disparities in how they sentence black and white defendants. Given more discretion, in other words, Democratic judges treated defendants of different races more equally, while Republican judges continued to carry on as they had before.
Cohen and Yang also found one important geographical effect: Black defendants fared particularly poorly in states with high amounts of population-level racial bias, measured here by the percentage of white residents in a given state who believe there should be laws against interracial marriage. These states tend to be clustered in the South, and previous research has shown a similar racial sentencing bias in these states when it comes to capital punishment.
Finally, they also observed an opposite effect in how Democratic and Republican judges treated female defendants: While all judges tended to hand down shorter sentences to women than to men charged with similar crimes, Republican judges were considerably more lenient to women. “Overall, these results indicate that judicial ideology may be a source of the persistent and large racial and gender disparities in the criminal justice system,” Cohen and Yang conclude.
Anyone with any experience in the federal sentencing system knows full well how judicial ideology may be a source of the persistent and large disparities in the operation of the system. But reflecting on my own experiences as a defense attorney and expert in a number of federal sentencing settings, I am eager here to highlight how the impact of judicial ideology may be impacted by the work of other actors involved in the federal sentencing process. I often sense that those judges (perhaps disproportionately Republican Appointees) with an earned reputation as a "by the guideline" type may not consistently receive the same type of mitigating information from probation officers and defense attorneys as do those judges known often to depart or now vary.
If readers are as intrigued and engaged by this new paper as I am, please say so in the comments, and I may try to see if I can encourage some folks to write up some guest-postings about this research.
UPDATE: A helpful reader sent me this link to the full paper in case folks are not able to access it via the NEBR site.
May 24, 2018 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (10)
Sunday, May 20, 2018
US District Judge Bennett explains why meth sentencing guidelines are wrong to treat "drug purity [as] a proxy for culpability"
Long-time readers know that US District Judge Mark Bennett has long made his post-Booker mark with thoughtful opinion explaining why various guidelines ought not merit full respect in light of the purposes of sentencing set forth in 18 USC § 3553(a). Judge Bennett's latest important sentencing work, which a helpful reader made sure I did not miss, comes in US v. Nawanna, No. CR 17-4019-MWB (D. Iowa May 1, 2018) (available here). Like so many of Judge Bennett's opinions, this latest ruling is a must-read for all who follow the federal sentencing system, and it starts and ends this way:
The United States Sentencing Guidelines differentiate between methamphetamine mixture and actual (pure) methamphetamine or "ice." That difference is the primary basis for the defendant's motion for a downward variance. Even though he is a first-time drug offender who has never been in prison, he argues that he faces a "breathtakingly high" Guidelines sentencing range of 360 months to life, where the methamphetamine at issue was treated as actual (pure) methamphetamine or ice. He argues that the harsh methamphetamine Guidelines overstate his culpability and should be rejected on policy grounds. Specifically, his argument, of first impression for me, is that the methamphetamine Guidelines are based on a flawed premise, set out in U.S.S.G. § 2D1.1, cmt. n.27(C), that drug purity is a proxy for culpability.
The prosecution responds that, although I am free to place whatever weight I wish on the various advisory Guidelines, the defendant's advisory Guidelines sentencing range is appropriate in this case, because it reflects the dangerous role the defendant played in dealing pure methamphetamine . Thus, this case requires me, once again, to consider the question of the merits of the advisory Guidelines sentencing range for a defendant convicted of methamphetamine offenses. In United States v. Hayes, 948 F. Supp. 2d 1009 (N.D. Iowa 2013), I followed the lead of two other federal district judges by reducing a methamphetamine defendant's advisory Guidelines sentencing range by one third, on the basis of a policy disagreement with the methamphetamine Guidelines. This sort of variance was for low level, non-violent, addict offenders. This opinion, which supplements my rationale on the record at the defendant's sentencing hearing, explains why I find that a similar reduction, based on a different calculation, is appropriate in this case....
Exercising my discretion to reject the advisory Guidelines sentencing range for methamphetamine offenses on the basis of a policy disagreement, I determined that a downward variance was appropriate in Nawanna's case. The reasons for rejecting the methamphetamine Guidelines, here, were independent of the reasons for rejecting the methamphetamine Guidelines set out in my decision in Hayes. Here, I concluded that the methamphetamine Guidelines are based on a flawed assumption that methamphetamine purity is a proxy for role in the offense, which, like Judge Robert C. Brack of the District of New Mexico, I find "is divorced from reality." Ibarra-Sandoval, 265 F. Supp. 3d at 1255. Nawanna's advisory Guidelines sentencing range of 360 months to life would be greater than necessary to accomplish the purposes of sentencing under 18 U.S.C. § 3553(a). Instead, for the reasons stated, above, and on the record during Nawanna's sentencing hearing, Nawanna should be sentenced to 132 months incarceration.
Saturday, May 19, 2018
Noting the distinctive juve sentencing realities to face the Texas school mass murderer
Yet another horrific school shooting, this time by a juvenile offender, provides yet another need to work through modern sentencing realities facing a mass murderers. This local article reviews the sentencing basics under the headline "The accused Santa Fe shooter will never get the death penalty. Here’s why." Here are excerpts:
The high school junior accused of gunning down 10 students and teachers at a Santa Fe school is facing a capital murder charge - but he’ll never face the death penalty, even in Texas. Some day, he’ll even be eligible for parole.
Though Dimitrios Pagourtzis was charged as an adult and jailed without bond, even if he’s found guilty he can’t be sentenced to death because of a 2005 U.S. Supreme Court ruling. And in the Lone Star State, he can’t be sentenced to life without parole as the result of a 2013 law that banned the practice for minors....
The Santa Fe High School student admitted to the mass shooting that killed 10 and wounded 10 others early Friday, according to court documents. He planted fake explosives and selected his targets so as to spare the students he liked, he later told police.
For an adult, that sort of crime could lead to the death chamber. Murders involving multiple victims can be charged as capital offenses, and for adults that leaves two options: death or life without parole.
At one time, those options were both on the table for teens, too. But then in 2005, Christopher Simmons, a Missouri killer condemned to die, won a landmark case in the Supreme Court. After surveying practices in death penalty states, the justices decided that the national consensus was against executing minors. Only a few states — including Texas — were the outliers still carrying out death sentences for those convicted of crimes committed as minors....
Before the court’s decision, Texas had been the biggest executioner of juvenile offenders, Dunham said. Across the nation, there were 22 convicts executed for crimes committed as juveniles - and more than half of them were in Texas. After the court eliminated the practice, in June 2005 Gov. Rick Perry commuted a slew of death sentences to life, removing 28 prisoners from death row, including 12 from Harris County.
Then in 2012, the Supreme Court took it one step further when the justices struck down mandatory life without parole sentences for juveniles. The following year, Texas legislators passed a law making life with parole — instead of life without parole — the only sentencing option for minors charged with capital crimes. For life sentences where parole is an option, Marzullo said, the first chance at release comes after 40 years in prison.
Whether or not he’s ultimately convicted, the accused Santa Fe shooter will be behind bars for the foreseeable future. During his first court appearance Friday night, a judge opted to hold him without bond. "At the moment he's in solitary confinement," Judge Mark Henry said after the teen's first court appearance Friday evening. "He's going to be here a while."
Because Pagourtzis slaughtered 10 people and injured many more, his case has me wondering about the application of consecutive sentences under Texas laws to potentially extend the period in which a juvenile offender would not be eligible for parole under life sentences. As regular readers know, there is a robust debate in lower courts about whether and how the Supreme Court's announced Eighth Amendment jurisprudence limiting life without parole for juvenile offenders ought to be applied in cases in which a juvenile has committed multiple very serious crimes. That debate may well end up impacting how this latest school shooter gets sentenced.
May 19, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (11)
Monday, May 14, 2018
"Killer Nanny" gets LWOP sentence plus 50 years for murdering kids in her care
Though I am never quite sure how often to blog about individual cases, I sometimes cannot resist reporting on the high-profile sentencing of defendants who get notorious monikers. Today, as reported in this New York Daily News piece, the "Killer Nanny" got sentenced. Here are some details:
The Upper West Side nanny who butchered two helpless children in 2012 was sentenced to life in prison without parole plus 50 years Monday, capping a harrowing story that has gripped the city for nearly six years.
Yoselyn Ortega, 55, was convicted of first-degree murder on April 18 after a heartbreaking two-month trial in Manhattan Supreme Court. The conviction, which carries a mandatory sentence of life without parole, sealed her fate of never seeing the light of day as a free woman.
It provided a much-needed measure of relief for the parents of 6-year-old Lulu and 2-year-old Leo Krim, who were savagely slain in the bathroom of their W. 75th St. home on Oct. 25, 2012, while the mom was out at a swim class with their middle sibling Nessie, then 3.
The children's parents, Kevin Krim, 42, and Marina Krim, issued statements thanking the judge and jurors and the district attorney's office. Marina Krim, 41, went a step further, and called out the "evil defendant" and her "entire family of bad, unethical people." Her husband echoed her sentiments, but dedicated his statement to memories of their two slain children....
At trial, Ortega's lawyer argued she should be found not responsible by reason of mental disease or defect — a bid the jury rejected after weeks of psychiatric testimony from experts on both sides. Ortega stabbed and slashed the adorable children in the rear bathroom of the second-floor apartment of the La Rochelle before plunging a kitchen knife into her own throat in a failed suicide attempt.
She settled her affairs by leaving her important documents for her sister and family heirlooms for her 17-year-old son — which prosecutors argued was proof she was of sound mind when she planned the unthinkable acts of that day.
Assistant District Attorney Stuart Silberg argued she was driven by spite aimed at Marina and rage over her own personal failures. "It was her intention to take their lives and to destroy the family," he said at the sentencing. "This defendant to this day has shown no remorse. She has never shed a tear for these children. Why isn't she in tears now?"
Little Lulu, who desperately tried to defend herself, sustained about 30 knife wounds, many defensive, while her kid brother suffered about five. Ortega cut them both across the throat leaving the tots no chance for survival. "Every stab, every slash — each one had a purpose and that purpose was to end the lives of those children," Silberg argued in summations....
Ortega also cried a little just before the sentence was imposed, framing herself as the real victim. "I'm very sorry for everything that happened, but I hope that no one goes through what I have gone through," she told the court.
Thursday, May 10, 2018
Quirky Texas statute operates to make being married an aggravating factor in sexual assault cases in Texas
In this new post at The Volokh Conspiracy, Eugene Volokh flag a quirky Texas statute that elevates the severity of sexual assaults based simply on the marital status of the offender or the victim. Here is the start and a few other part of a great post:
Oregon Supreme Court upholds 112-year aggregate sentence for juve mass murderer Kip Kinkel
A helpful reader made sure I did not miss the notable Oregon Supreme Court's ruling today in Kinkel v. Persson, 363 Or 1 (Oregon May 10, 2018) (available here). The defendant in this case, Kip Kinkel, is a high-profile juvenile offender because back in 1998, at age 15, he killed his parents and then the next day at his high school shot two classmates and wounded 25 others. The start of the Oregon Supreme Court majority opinion explains the sentencing proceedings and the court's ruling:
Petitioner pled guilty to four counts of murder and 25 counts of attempted murder, as well as pleading no contest to a twenty-sixth count of attempted murder. As part of a plea bargain, petitioner and the state agreed that he would receive concurrent 25-year sentences for the four murders. They also agreed that each side would be free to argue that the mandatory 90-month sentences for each of the attempted murders should run consecutively or concurrently. After a six-day sentencing hearing, the trial court ordered that 50 months of each 90-month sentence for attempted murder would run concurrently but that 40 months of each of those sentences would run consecutively to each other and to the four concurrent 25-year sentences. As a result of that ruling, petitioner’s aggregate sentence totals slightly less than 112 years.
In this post-conviction proceeding, petitioner argues that, because he was a juvenile when he committed his crimes, the Eighth Amendment prohibits the imposition of an aggregate sentence that is the functional equivalent of a life sentence without the possibility of parole. Petitioner’s federal argument entails primarily three issues. The first is whether, as a matter of state law, petitioner’s Eighth Amendment claim is procedurally barred. See ORS 138.550(2) (barring post-conviction petitioners from raising grounds for relief that were or reasonably could have been raised on direct appeal); Verduzco v. State of Oregon, 357 Or 553, 355 P3d 902 (2015) (applying a related statute). If it is, the second issue is whether Montgomery v. Louisiana, ___ US ___, 136 S Ct 718, 193 L Ed 2d 599 (2016), requires this court to reach petitioner’s Eighth Amendment claim despite the existence of that state procedural bar. Third, if petitioner’s Eighth Amendment claim is not procedurally barred, the remaining issue is whether and how Miller v. Alabama, 567 US 460, 132 S Ct 2455, 183 L Ed 2d 407 (2012), applies when a court imposes an aggregate sentence for multiple crimes committed by a juvenile.
As explained below, we hold that, even if ORS 138.550(2) does not pose a procedural bar to petitioner’s Eighth Amendment claim, his claim fails on the merits. More specifically, the issue in Miller was whether the Eighth Amendment prohibited a juvenile from being sentenced to life imprisonment without the possibility of parole for a single homicide. The Court held that such a sentence could be imposed but only if the trial court found that the crime reflected irreparable corruption rather than the transience of youth. The Court did not consider in Miller whether a juvenile who has been convicted of multiple murders and attempted murders, as in this case, may be sentenced to an aggregate consecutive sentence that is the equivalent of life without the possibility of parole. This case thus poses a different issue from the issue in Miller. Beyond that, we conclude that the facts in this case, coupled with the sentencing court’s findings, bring petitioner within the narrow class of juveniles who, as Miller recognized, may be sentenced to life without the possibility of parole.
Tuesday, May 01, 2018
Should Prez Trump grant clemency to former Illinois Gov. Rod Blagojevich?
The question in the title of this post is prompted by this notable new commentary authored by Kristen McQueary for the Chicago Tribune. Here are excerpts:
Former Illinois first lady Patti Blagojevich is back in the spotlight, pulling every lever to convince President Donald Trump to award clemency to her imprisoned husband. In several media interviews, she has tried to build camaraderie with Trump by painting former Gov. Rod Blagojevich as a victim of FBI targeting and an overzealous prosecution.
That is sure to get Trump’s attention. But the better play might be appealing to Trump’s inside knowledge of the swamp — the trading of favors and campaign contributions between politicians and special interest groups. Trump knows it well. He was part of it. “Nobody knows politicians better than I do,” Trump said during a meeting with the Tribune Editorial Board in June 2015, shortly after he announced his candidacy for president. He was in town to speak to the City Club of Chicago and the editorial board invited him to stop by. He did, along with son Donald Jr.
During the meeting, we asked him about Blagojevich, who by then had been in prison for three years. The two had met on the set of “Celebrity Apprentice” in 2010 while the former governor’s corruption case was winding through the courts.
Here’s what Trump said then: “It was good having him on. I found him to be, I can only speak for myself, I found him to be a very nice guy. Not sophisticated. Had little knowledge of computers and things and you know we found that out … We found him to be very nice,” Trump said. “Now, he was under a lot of pressure at that point.
“I think that’s an awfully tough sentence that he got for what supposedly he did,” Trump said. “Because what he did is what politicians do all the time and make deals.”
Boom. What politicians do all the time. That has been the most compelling defense of Blagojevich throughout his controversial arrest, double trial and convictions. The feds placed two bugs and six wiretaps on his home telephone, his campaign office phone and his cellphone, and also bugged his friends and chief of staff. How many other politicians would end up in prison if the government listened to their conversations?
Yes, at two trials Blagojevich was rightfully found guilty on a total of 18 corruption counts for, among other things, trying to trade an Illinois U.S. Senate seat appointment for personal gain. Blagojevich deserved to go to prison. He lied to the FBI about a firewall that he claimed existed between his campaign fund and his government responsibilities. He tried to shake down campaign donors by withholding legislation they sought from state government....
Blagojevich has served six years of a 14-year sentence. Isn’t that enough?
Trump could grant him clemency and consider time served as punishment enough for what Blagojevich plotted. Remember, prosecutors arrested him before any transactions occurred. They got him primarily on intent, not completion. They also indicted Blagojevich’s brother to squeeze him but dropped the charges for the second trial, an admission that perhaps they were overzealous in their pursuits....
Trump knows the swamp. He was the real estate mogul with a fat checkbook before he was president of the United States. Plenty of politicians courted him and vice versa. Will he look sympathetically on a fellow swamp thing? He might. He should.
Some of many older related posts on the Blagojevich case:
- You make the sentencing call: What sentence should Blago get?
- Early buzz that feds think Rod Blagojevich's guideline range is 30 years to life in prison
- Feds asking for prison term of 15 to 20 years for Rod Blagojevich
- "Prison is too good for Blago"
- Bold (and misguided?) prediction of 20-25 years in the federal pen for Blago
- Do would-be white-collar offenders actually "get the message" from long sentences?
- Blagojevich sentencing and the failings (and limits?) of the federal sentencing guidelines
- "Ex-Gov. Rod Blagojevich sentenced to 14 years"
- As federal prosecutors urged, former Gov Blagojevich resentenced to same 14-year prison term despite a few vacated convictions
Thursday, April 26, 2018
You be the state judge: what sentence for Bill Cosby for conviction on three counts of aggravated indecent assault?
This brief CNN report details why there is a new celebrity sentencing watch now:
The jury in Bill Cosby's indecent assault trial found the comedian guilty Thursday of all three counts.
Cosby was convicted on three counts of aggravated indecent assault for drugging and sexually assaulting Andrea Constand in a Philadelphia suburb in 2004. The 80-year-old former comedian faces up to 10 years in prison on each count, but would likely serve them concurrently....
The case against Cosby centered on testimony from Constand, a former employee with Temple University women's basketball team. She testified that Cosby, a powerful trustee at Temple, drugged her and sexually assaulted her when she visited his home to ask for career advice.
Cosby's defense team argued that their interaction was consensual. Constand is a con artist, they argued, who wanted a piece of Cosby's fortune....
Although dozens of women have accused Cosby of sexual misconduct, only Constand's allegations resulted in criminal charges.
The last line of this report highlights one of many reasons that the coming sentencing proceeding for Cosby may prove so interesting. It will be interesting to see whether and how the state will try to bring in evidence of other alleged assaults as "relevant conduct." Because I do not know well Pennsylvania sentencing law and practice, I would be especially eager to hear from PA practitioners about how they expect a forthcoming sentencing to proceed.
Sunday, April 15, 2018
Another federal court reaction to federal sentencing realities of modern drug war
In this post a few weeks ago, I noted an interesting Seventh Circuit ruling which not only explored ineffective assistance of counsel in plea negotiations, but also highlighted how our federal drug laws can functionally operate to turn a seemingly minor crime into an offense carrying a 20-year mandatory minimum. That post generated a lot of thoughtful comments, leading me to think it worthwhile to spotlight another drug war sentencing tale with a different variation in the work of counsel and court.
Specifically, a couple of helpful readers sent me a notable sentencing memorandum and a recently unsealed sentencing opinion in US v. Smith, No. 6:17-cr-147-Orl-31KRS (M.D. Fla. Feb. 27, 2018). In this case, as explained by the sentencing judge, Judge Gregory Presnell, Tyrone Smith faced a huge increase in his sentence range under the career-offender guideline for two prior low-level cocaine sales:
Smith was arrested and charged in Count 2 of the Indictment with distribution of a mixture containing a detectable amount of carfentanil. He pled guilty and appeared before me for sentencing. The PSR (Doc. 80) scored defendant with a base of 24. Subtracting two levels for his minor role in the offense and three levels for his acceptance of responsibility, his guideline score would be 19. With a criminal history score of III, his suggested guideline sentence would be 37-46 months. But the prior state court offenses described above make defendant a career offender as defined by USSG 4B1.1. Application of this enhancement increases defendant’s score from 19-III to 29-VI, resulting in a guideline range of 151-188 months, a 400% increase for selling $120 worth of cocaine ten years ago!
Running through the 3553(a) factors and noting the "growing chorus of federal judges who reject application of the career offender guideline in certain cases," Judge Presnell concluded "that a reasonable sentence in this case is 30 months, which constitutes a modest downward variance from the low end of defendant’s unenhanced guideline score."
I have provided here for downloading counsel's sentencing memorandum for Tyrone Smith as well as Judge Presnell's "Bench Sentencing Opinion":
Monday, April 09, 2018
Guest Post: "Do Two Misdemeanors a Felony Make?"
The question in the title of this post is posed by by North Caroline lawyer Bruce Cunningham to set up his discussion of a notable recent decision from his state's top court. Bruce was kind enough to write up the following for this blog on the ruling:
Last Friday, the North Carolina Supreme Court flirted with, but unfortunately avoided, one of the most important questions impacting modern criminal sentencing; “What is the nature of a prior conviction?” Can it be used as an ‘element’ of a substantive criminal offense?” Or, must its role be confined solely to increasing the level of punishment for a crime, but not the level of the crime itself?”
State v Howell, opinion here, involved a conviction for possessing marijuana, a Class 1 Misdemeanor, which carries up to 4 months in jail. Because the defendant had previously been convicted of the same offense, the Defendant faced being “punished as a Class 1 Felony.” The prosecutor also charged the Def. with being an habitual felon, under the N.C. three strike law.
As a result Howell was sentenced to 29 to 36 months in prison, which was suspended for 36 months on probation. So, Howell’s conduct on the day of the offense exposed him to 4 months in jail, and his prior record earned him the additional 32 months.
The narrow issue presented in Howell related to the “intent of the legislature” concerning whether the phrase “be punished as a class I felony,” is the equivalent of “committed a class I Felony. The N.C Supreme said it was. Because the defendant did not argue a federal constitutional claim, the case will go no further, which leaves open the issue of whether the use of prior convictions as elements of crime passes constitutional muster.
During oral argument in United States v Johnson, both Justice Scalia and Justice Stevens questioned if two misdemeanors can make a felony. Johnson, No 08-6935, Oral argument transcript p. 49 (October 6, 2009). Justice Scalia inquired, “Have we ever approved that, by the way, kicking a misdemeanor up to the felony category simply because of recidivism?”
It appears that in McDonald v Massachusetts, 180 U.S. 311 (1901) not only did the Court address the question, it answered “No”. In McDonald, the Court considered whether habitual felon statutes violated double jeopardy, and stated, “The allegation of previous convictions is not a distinct charge of crimes but is necessary to bring the case within the (habitual felon) statute, and goes to the punishment only.”
There are many felonies in N.C. which are charged because a defendant commits the same misdemeanor twice. Felonious Stalking, Breaking into a Coin Machine, Habitual DWI, Habitual Misdemeanor Assault, etc. There may be other states which have similar “recidivist felonies”
Howell said that it is okay to kick up a misdemeanor to a felony if the legislature intended the elevation of the second misdemeanor. Justice Scalia’s question of whether the notion of two misdemeanors making a felony passes constitutional muster, must await another day.
Friday, April 06, 2018
AG Sessions announces new "zero-tolerance policy" for immigration offenses ... which could mean ... (a lot or no) more fast-track sentencing?
This new Department of Justice press release reports on a notable new announcement from the Attorney General. Here is the substantive heart of the release:
Attorney General Jeff Sessions today notified all U.S. Attorney’s Offices along the Southwest Border of a new “zero-tolerance policy” for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien. The implementation of the Attorney General’s zero-tolerance policy comes as the Department of Homeland Security reported a 203 percent increase in illegal border crossings from March 2017 to March 2018, and a 37 percent increase from February 2018 to March 2018 — the largest month-to-month increase since 2011.
“The situation at our Southwest Border is unacceptable. Congress has failed to pass effective legislation that serves the national interest — that closes dangerous loopholes and fully funds a wall along our southern border. As a result, a crisis has erupted at our Southwest Border that necessitates an escalated effort to prosecute those who choose to illegally cross our border,” said Attorney General Jeff Sessions. “To those who wish to challenge the Trump Administration’s commitment to public safety, national security, and the rule of law, I warn you: illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice. To the Department’s prosecutors, I urge you: promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens. You play a critical part in fulfilling these goals, and I thank you for your continued efforts in seeing to it that our laws — and as a result, our nation — are respected.”...
Today’s zero-tolerance policy further directs each U.S. Attorney’s Office along the Southwest Border (i.e., Southern District of California, District of Arizona, District of New Mexico, Western District of Texas, and the Southern District of Texas) to adopt a policy to prosecute all Department of Homeland Security referrals of section 1325(a) violations, to the extent practicable.
The one-page memo sent from AG Sessions to all federal prosecutors along the Southwest border is available at this link, and the title of this post flags the big follow-up question that I have.
As federal sentencing fans know, the large number of immigration cases historically prosecuted in border districts led to the creation of a special kind of sentencing adjustment (known as a "fast-track" departure) in order to speed case-processing through sentence reductions. If, as this AG Sessions memo suggests, prosecutors on the border are now going to be bringing even more immigration prosecutions, I would expect to see even more "fast-track" departures. But the memo above speaks of bringing the "full prosecutorial powers of the Department of Justice" to those "illegally entering this country." That language would arguably suggest that federal prosecutors ought not anymore be agreeing to lower sentences for offenses under 8 U.S.C. § 1325(a) now that we are to have a "zero-tolerance policy."