Tuesday, June 20, 2017

Seventh Circuit panel again finds below-guideline sentence for abusive police officer unreasonable

Especially because it can sometimes seem that post-Booker reasonableness review of sentences has little bite, it still seems blogworthy whenever a circuit court finds a federal sentence unreasonable.  The work of a Seventh Circuit panel yesterday in US v. Smith, No. 16-2035 (7th Cir. June 19, 2017) (available  here), struck me as doubly blogworthy because it represents the second time the same sentence has been reversed and because the defendant here is an abusive local police officer.  Here is how the opinion gets started:

A jury convicted Terry Joe Smith, a police officer, of violating 18 U.S.C. § 242, by subjecting two men to the intentional use of unreasonable and excessive force, and violating their civil right to be free of such abuse.  The district court sentenced Smith to fourteen months’ imprisonment, less than half the low end of the applicable guidelines range. In the first appeal of the case, we affirmed Smith’s conviction but vacated the sentence and remanded for full resentencing, concluding that the court had failed to justify the below-guidelines sentence. United States v. Smith, 811 F.3d 907 (7th Cir. 2016).  On remand, the court again sentenced Smith to fourteen months’ imprisonment and once more failed to adequately explain or justify the below-guidelines sentence. We again vacate and remand for a complete re-sentencing.

Here are the essential basics from the opinion of the defendant's crime and recommended guideline punishment:

Smith was a police officer employed by the Putnam County Sheriff’s Department.  In two separate incidents, Smith violently assaulted arrestees who were already under control and not actively resisting arrest. At trial, Smith’s fellow police officers testified against him, describing the unwarranted [and brutal] attacks....

Smith’s guidelines range was thirty-three to forty-one months’ imprisonment. Smith was in Criminal History Category I, based on one prior conviction for misdemeanor battery of a three-year-old child and the child’s mother, who was then Smith’s wife.

The lengthy Smith opinion follows with lots of notable and interesting discussion about how the sentencing court justified a sentence of 14 months and why the circuit panel believe this below-guideline sentence was unreasonable even at a second sentencing with additional evidence.  And, as sometimes happens in the post-Booker world, the circuit panel officially ruled the sentence procedurally unreasonable, but it seems pretty clear that the panel was troubled by what it perceived to be a substantively light sentence under these circumstances.

June 20, 2017 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics | Permalink | Comments (6)

Friday, June 16, 2017

You be the juvenile sentencing judge: what sentence for teen guilty of involuntary manslaughter for encouraging suicide?

A high-profile state (bench) trial culminated this morning in a notable involuntary manslaughter conviction in the so-called in texting suicide case.  This Boston Globe article provides the basic details to set up the question in the title of this post:

Michelle Carter, who repeatedly urged her boyfriend to kill himself, was found guilty of involuntary manslaughter Friday by a juvenile court judge, ending an extraordinary trial that explored a virtual relationship between teenagers that ended in a suicide.

Judge Lawrence Moniz delivered his verdict after deliberating for two days in the jury-waived trial in Bristol Juvenile Court where Carter [who was 17 at the time of the offense] was being tried as a youthful offender.  The trial riveted lawyers and the public alike as it delved into the painful interior lives of two teenagers who called themselves boyfriend and girlfriend though they had met in person only a few times....

Bristol prosecutors alleged Carter should still be held accountable for the death of Conrad Roy III even though she was not present when the 18-year-old with prior suicide attempts filled his truck with carbon monoxide on July 12, 2014.  Carter and Roy spoke for 47 minutes as he parked in the parking lot of a Kmart in Fairhaven.  When he told he was too scared and had left the truck, she ordered him to return, according to testimony at her trial. “Get back in,” she allegedly said.

Roy left a suicide note addressed to Carter that was made public during her trial.

Speaking from the bench, Moniz said that he concluded Carter was guilty of involuntary manslaughter, in part, for ordering Roy back into the truck in what she knew was a toxic environment where it would take him 15 minutes to die — and failed to notify anyone as required under Massachusetts law.  “Miss Carter had reason to know that Mr. Roy had followed her instruction and placed himself in the toxic environment of that truck,” Moniz said.  “Knowing that Mr. Roy is in the truck, knowing the condition of the truck. Knowing, or at least having the state of mind that 15 minutes must pass, Miss Carter took no actions … She called no one.  She did not issue a simple additional instruction: Get out of the truck.”

Moniz also said the case was not legally novel since 200 years ago, a state prison inmate was prosecuted for convincing a man facing the death sentence to hang himself in his cell six hours before he was to be executed.  Moniz also noted that Roy had a long and troubled psychiatric history that included multiple suicide attempts — but each time he stopped and sought out help from his family and friends.

Moniz set sentencing for Aug. 3.  She faces up to 20 years in prison if given the maximum sentence for involuntary manslaughter.

I would be shocking if the judge here decided to impose a sentence anywhere near the applicable 20-year max. I am inclined to guess a prison sentence in the range of a year or two will be what the juvenile judge here will be considering. But I have not followed this case and the evidence closely, so I am really judge guessing here based on the nature of the crime and the offender. And I am interested to hear if others have more informed (or uninformed) views on what a fair and effective sentences in this case would look like.

June 16, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (19)

Monday, June 12, 2017

Swift and sensible sentencing justice for high-profile violent crime in Montana

As reported in this local article, headlined "Greg Gianforte gets anger management, community service after admitting he assaulted reporter," a high-profile crime and criminal got a non-prison sentence for a violent crime today.  Here are some of the particulars:

Republican congressman-elect Greg Gianforte will not spend any time in jail after he admitted a charge of misdemeanor assault Monday for “body slamming” a reporter on the eve of his election. “I just want to say I’m sorry,” Gianforte told Ben Jacobs, the reporter for the Guardian that he assaulted in Bozeman at a campaign event about 24 hours before polls closed on May 24.

Gallatin County Justice Court Judge Rick West ordered Gianforte to complete 20 hours of anger management counseling and 40 hours of community service. He was given a deferred six-month jail sentence.  If he does not violate the conditions of his sentence, the charge could be dismissed.

West initially tried to give Gianforte a sentence of four days in jail, converted to two days in a work program.  Work programs, which cut the time of a sentence in half, are not an option in assault cases, however. West said he felt anger management was necessary since Gianforte, who will go to Washington, D.C., under heavy scrutiny, could not handle questions from a single reporter.

Motioning around the courtroom, he said “It’s not a lot of cameras compared to what you’re going to see at the White House.”

"It is not my intent you spend four days in jail," West said to a small courtroom packed with journalists and some other members of the public. "I do not think that would serve the community or the taxpayers." West referenced Gianforte's charitable giving in the Bozeman community and around the state when deliberating the sentence, but also said Gianforte's unprovoked attack overshadowed that....

Jacobs, wearing a suit and new pair of glasses that replaced the ones broken in the attack, read to the court from a prepared statement. He spoke quietly enough the judge had to ask him to speak up. Jacobs described the day of the attack, saying he had entered a room to ask Gianforte a question.  "I was just doing my job," Jacobs said. "Mr. Gianforte's response was to slam me to the floor and start punching me." After the attack, Jacobs said Gianforte then sent an "inflammatory public statement in which he insisted this unprovoked ... attack was somehow my fault," Jacobs said.

When pressed by the judge, Gianforte at first did not give clear details on the assault but later said he grabbed for Jacobs' phone, ended up grabbing his wrists instead and a "scuffle" ensued where both men fell to the ground....  In his apology letter to Jacobs, Gianforte wrote “Notwithstanding anyone’s statement to the contrary, you did not initiate any physical contact with me, and I had no right to assault you.”  Neither Gianforte nor his staff have clarified why a false statement was sent out after the assault....

A handful of protesters were outside the Law and Justice Center after court ended.  They held up signs saying "Lock him up," "Shame" and "Justice vs. White Christian Privilege." Jackie Crandall drove up from Roberts that morning to protest. "I think Greg Gianforte got special treatment," she said.  "If he wasn't rich and powerful, he would be in jail. If he was black, he would be in jail."

As the title of this post suggests, I think a non-prison sentence for this violent crime seems quite sensible for a remorseful first offender who seems unlikely to be on a path to criminality (even though he is on a path to Congress).

June 12, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (9)

Thursday, June 08, 2017

Judge Jack Weinstein talks through general deterrence and gang activity in federal gun sentencing

A helpful reader forwarded to me the latest interesting sentencing opinion authored by US District Judge Jack Weinstein. The full 25-page opinion in US v. Lawrence, No. 16-CR-243 (E.D.N.Y. May 23, 2017), is an interesting read for a lot of reasons, is not readily summarized and is available for download below. Here is how it gets started and ends to provide taste for the full opinion:

Defendant in the instant case pled guilty to a serious crime.  He is either a gang member or on the verge of becoming one.  He recklessly fired an illegally possessed handgun repeatedly down a public street, with the likelihood that a passing pedestrian might be hit: in fact he wounded his companion.

This case presents some of the critical difficulties in federal sentencing. It requires balancing general deterrence (and, relatedly, incapacitation) by a relatively long prison term with specific deterrence (and its other aspect, rehabilitation) by a relatively short term in prison. Both must be considered under section 3553(a)(2)(B) of section [1]8 of the United States Code.  By compromising, and reducing a somewhat draconian sentence (possibly less effective for general deterrence), or increasing the sentence (possibly less effective for rehabilitation), the sentence may risk frustrating either goal.

The subtle weighing of alternatives is made more difficult by the presence of numerous competing vectors (such as family or work or criminal history).  In the present case the court accepted, and acted on, testimony of an expert witness that increasing the length of incarceration does not proportionally increase general or specific deterrence....

The Guidelines do not consider gang membership as a factor in sentencing, except for defendants who are sentenced under 18 U.S.C. § 521 (pertaining to criminal street gangs), where the Guidelines provide for an upward departure. U.S.S.G. § 5K2.18.  Were gang membership a sentencing factor in cases other than those under 18 U.S.C. § 521, courts would give greater weight to this factor.  This court recommends that the Sentencing commission revisit the gang membership problem.

Download Lawrence - Judgment%2c Memo%2c and Order

June 8, 2017 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Friday, June 02, 2017

Former Penn State administrators get a few months in jail for failing to report Sandusky sex crimes leading to child endangerment convictions

As reported in this USA Today article, "former Penn State officials Tim Curley, Gary Schultz and Graham Spanier were all sentenced to jail time Friday for failing to alert authorities to the allegations against ex-football coach Jerry Sandusky, allowing the now-convicted serial predator to continue molesting boys for years." Here is more:

All three were convicted of child endangerment. Schultz, the former university vice president, could serve a minimum of two months in jail and a maximum of 23 months. Curley, the former university athletic director, could serve a minimum of three months in jail and maximum of 23 months. And Spanier, the former university president, could serve a minimum of two months and a maximum of 12 months. All three are also poised to have house arrest after the jail time.

Prosecutors in the case argued that the ex-Penn State staffers failed as leaders and cared more about themselves and the school’s image than protecting the children. Judge John Boccabella in the case called it a “Shakespearean tragedy” and was befuddled by the former administrators lack of action. “These men are good people who made a terrible mistake,” the judge said. “Why no one made a phone call to police … is beyond me. All three ignored the opportunity to put an end to (Sandusky’s) crimes when they had a chance to do so."

“I deeply regret I didn’t intervene more forcefully,” Spanier said, expressing remorse, in reference to Sandusky’s victims. Spanier will appeal a misdemeanor of child endangerment charge that both Schultz and Curley pleaded guilty on.

Curley and Schultz also told the court they were sorry they didn’t do more. “I am very remorseful I did not comprehend the severity of the situation. I sincerely apologize to the victims and to all who were impacted because of my mistake,” Curley said. Said Schultz: “It really sickens me to think I might have played a part in children being hurt. I’m sorry that I didn’t do more, and I apologize to the victims.”

Sandusky is serving a 30 to 60-year prison term after being convicted of sexually abusing 10 boys.

June 2, 2017 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (8)

Wednesday, May 31, 2017

Second Circuit affirms convictions and LWOP sentence for Silk Road creator Ross Ulbricht

The Second Circuit today released a 139-page panel opinion in US v. Ulbricht, No. 15-1815 (2d Cir. May 31, 2017) (available here), which starts this way:

Defendant Ross William Ulbricht appeals from a judgment of conviction and sentence to life imprisonment entered in the United States District Court for the Southern District of New York (Katherine B. Forrest, J.).  A jury convicted Ulbricht of drug trafficking and other crimes associated with his creation and operation of Silk Road, an online marketplace whose users primarily purchased and sold illegal goods and services.  He challenges several aspects of his conviction and sentence, arguing that (1) the district court erred in denying his motion to suppress evidence assertedly obtained in violation of the Fourth Amendment; (2) the district court committed numerous errors that deprived him of his right to a fair trial, and incorrectly denied his motion for a new trial; and (3) his life sentence is both procedurally and substantively unreasonable.  Because we identify no reversible error, we AFFIRM Ulbricht’s conviction and sentence in all respects.

The sentencing discussion covers roughly the last 25 pages of this lengthy unanimous panel opinion, and it includes a number of notable passages while covering a lot of notable ground. Here are just a few highlights of an opinion that sentencing fans and drug policy folks should read in full:

Ulbricht’s only claim of procedural error is that it was improper for the district court to consider six drug-related deaths as relevant to his sentence because there was insufficient information connecting them with drugs purchased on Silk Road.  In terms of our sentencing jurisprudence, Ulbricht claims that the district court relied on clearly erroneous facts in imposing sentence.  We are not persuaded....

[I]t was certainly appropriate for the district court to consider the risk of death from use of drugs in assessing the seriousness of the offense conduct, one of the factors that a judge must consider in imposing sentence.  See 18 U.S.C. § 3553(a)(2)(A).  That appears to be the only way the judge in this case used the evidence of the drug-related deaths. Emotionally wrenching as the statements of the decedents’ parents were, we cannot and do not assume that federal judges are unable to put their sympathies for particular victims to one side and assess the evidence for its rational relationship to the sentencing decision. And here, the record makes clear that the district court did not use the evidence of the drug-related deaths to enhance Ulbricht’s sentence, either as a formal matter under the Guidelines or otherwise....

[W]hile a life sentence for selling drugs alone would give pause, we would be hard put to find such a sentence beyond the bounds of reason for drug crimes of this magnitude. But the facts of this case involve much more than simply facilitating the sale of narcotics. The district court found by a preponderance of the evidence that Ulbricht commissioned at least five murders in the course of protecting Silk Road’s anonymity, a finding that Ulbricht does not challenge in this appeal.  Ulbricht discussed those anticipated murders callously and casually in his journal and in his communications with the purported assassin Redandwhite....

Ulbricht and amici point out that life sentences are rare in the federal system, typically reserved for egregious violent crimes, thus rendering Ulbricht’s sentence substantively unreasonable.  Moreover, according to amici, life sentences are normally imposed in cases where that is the district judge’s only sentencing option.  Thus, they claim that Ulbricht’s life sentence is substantively unreasonable in the context of the federal system, where life sentences are particularly rare for those with no criminal history who are convicted of drug crimes.

We agree with Ulbricht that life sentences are extraordinary and infrequent, which is as it should be.  But the rarity of life sentences does not mean that the imposition of such a sentence in this case is substantively unreasonable under our law.  Each case must be considered on its own facts and in light of all of the circumstances of a particular offense as well as other relevant conduct, which, in this case, includes five attempted murders for hire.  As we have described, the district court carefully considered Ulbricht’s offense, his personal characteristics, and the context for his crimes, recognizing that only exceptional cases justify such a severe sentence. Although we might not have imposed the same sentence ourselves in the first instance, on the facts of this case a life sentence was “within the range of permissible decisions” that the district court could have reached. 

A few prior related posts:

May 31, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (6)

Tuesday, May 30, 2017

Notable new talk of notable new mandatory minimum sentences in Congress

The Hill has this notable new article headlined "GOP pushes new minimum sentencing laws."  Here are excerpts:

The debate over criminal justice reform has taken a head-spinning turn on Capitol Hill.  After months of debate over whether to curb mandatory minimum prison sentences, Republicans are now going in the opposite direction.

A new border security bill includes mandatory minimum sentences for certain immigrants who try to re-enter the country after they’ve already been deported and for people convicted of violent crimes against judges and police officers. The Hill reviewed a draft copy of the legislation, which is still being hammered out by Sen. John Cornyn (Texas), the No. 2 Senate Republican, and House Homeland Security Committee Chairman Michael McCaul (R-Texas).

The legislation includes “Kate’s law,” a measure named for Kathryn Steinle, a 32-year-old woman killed in 2015 by a felon who had been deported but returned to the United States. The law effectively creates a three-strike rule. Immigrants with prior aggravated felony convictions or two prior convictions for illegal re-entry would get a mandatory 5-year sentence.

President Trump repeatedly talked about Steinle during his presidential campaign as he backed policies cracking down on legal and illegal immigration.

The legislation also incorporates Cornyn’s Back the Blue Act, which creates a 30-year mandatory minimum sentence for killing a judge or federal law enforcement officer; a 10-year minimum for assault if the judge or law enforcement officer is seriously injured; a 20-year mandatory minimum if a deadly or dangerous weapon was used in the assault; and a 10-year minimum for fleeing after killing, attempting to kill or conspiring to kill a judge or law enforcement office. The law defines a law enforcement officer as any federally funded public safety officer or judicial officer for a public agency, including firefighters.

The new legislation represents a shift in the battle over mandatory minimum sentences and criminal justice reform more broadly. Over the last several years, momentum for eliminating mandatory sentencing laws gained steam with the backing not only of former President Barack Obama, but also from conservatives such as Sen. Mike Lee (R-Utah) and Charles and David Koch, the conservative GOP mega-donors and political heavyweights.

With the election of Trump, however, there are some signs that things are now moving in a different direction. Trump and Attorney General Jeff Sessions have vowed to empower law enforcement and crack down on illegal immigration....

Cornyn’s work on the new bill appears to represent another shift given his past work on the Sentencing Reform and Corrections Act. That legislation, which Sen. Dick Durbin (D-Ill.) spearheaded alongside Lee and Sen. Chuck Grassley (R-Iowa), called for reducing mandatory minimums for certain drug crimes. Cornyn was one of the first 15 original co-sponsors of that legislation, which never made it to the floor for a vote....

Cornyn said the new legislation is in draft form and still evolving. “We don’t have a final product,” he told The Hill on Thursday. “We’ve been sharing some language with the Department of Homeland Security and the House so there isn’t a final product. I know people like to comment on leaked draft documents, but I don’t find that very productive.”

When asked for his response to claims that provisions in his bill contradict his past support for reform, Cornyn said his bill is not a statement about mandatory minimums generally. “I’m not opposed to all mandatory minimums,” he said. “For example, felons carrying guns, I like the five-year mandatory minimum because it acts as a deterrent and saves lives.”...

Kevin Ring, president of Families Against Mandatory Minimums, said he understands Cornyn's reasoning for supporting minimums for certain crimes. “But just because you support some [mandatory minimums], doesn’t mean you should support the worst,” he said. “These are incredibly broad and expensive.”

Ring claims the provisions in Cornyn’s bill will cause more damage than any good Grassley's and Durbin’s reforms would have done in terms of reducing the prison population. “These are two of the biggest prison expanding proposals we’ve seen combined into one massive bill,” he said. “We can’t possibly build prisons fast enough to keep up with the influx we’d have.”

Without seeing the particulars of the new mandatory minimums (MMs) being developed by Senator Cornyn, I am not yet prepared to weigh in on just how much of an impact they could have on the federal prison population. I am hopeful that the US Sentencing Commission might have an opportunity to analyze the possible impact of any and all new MMs before they come up for a vote in any committees or before the full Congress.

If Senator Cornyn and other GOP members are strongly and aggressively committed to moving forward with new MMs for certain violent offenses and/or repeat immigration offenders, advocates of progressive reforms might be strategically wise to urge adding to any bill parallel provisions that reduce or eliminate MMs for certain nonviolent offenses and/or first-time offenders. Like many advocates of federal sentencing reform, I generally think all forms of mandatory minimums generally do more harm than good. But lengthy mandatory minimums for nonviolent and first offenders seem to me to be especially pernicious, and thus I would urge those troubled by the lemons of new proposed MMs try to find a way to make some sentencing reform lemonade.

May 30, 2017 in Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (5)

Monday, May 29, 2017

"Predicting Sex Offender Recidivism: Using the Federal Post-Conviction Risk Assessment Instrument to Assess the Likelihood of Recidivism Among Federal Sex Offenders"

The title of this post is the title of this new article available via SSRN authored by Thomas Cohen. Here is the abstract:

Sex offenses are among the crimes that provoke serious public concern.  The federal response to the problem of sex offending has resulted in an exponential increase in the number of sex offenders on federal post-conviction supervision; however, relatively few studies have explored whether and how well the actuarial risk instrument currently used by federal probation officers — the federal Post Conviction Risk Assessment instrument or PCRA for short — accurately predicts reoffending behavior among the federal sex offender population.

This study provided an exploration of the PCRA’s capacity to effectively predict subsequent recidivism activity for convicted federal sex offenders.  Results show that the PCRA accurately predicts recidivistic behavior involving the commission of any felony or misdemeanor offenses, violent offenses, and probation revocations for this population. However, the PCRA’s predicative capacities deteriorate when the instrument is used to assess the likelihood of sexual recidivism.  In addition, this study showed that offenders convicted of online child pornography offenses presented some challenges in terms of predicting their reoffending behavior because they manifested lower PCRA risk scores and recidivism rates compared to offenders convicted of other major federal sexual offenses that typically involve more hands-on behavior.

May 29, 2017 in Data on sentencing, Offender Characteristics, Offense Characteristics, Reentry and community supervision | Permalink | Comments (2)

Thursday, May 25, 2017

Deep dive into the deep challenges of sentencing different types of child sex offenders

The Shreveport Times has this detailed five-part series, called Sinister Web, which looks into the modern digital world of child pornography. One article in the series examines case-processing and sentencing issues and challenges in this sad space under the headlined "Different outcomes for child rapists, child pornographers."  Here are excerpts:

Prosecutors face specific challenges when handling contact child sexual abuse cases, which often result in less prison time for those who sexually assault children than for those who possessed or distributed child pornography via the internet.

The conviction rate in U.S. child pornography possession cases is 97 percent, according to the Crimes Against Children Research Center and the Bureau of Justice Statistics. The conviction rate is much lower for offenders who commit hands-on sex crimes against children: 46 percent....

Experts cite multiple reasons for the disparities in sentencing and conviction rates.  One is that young children often are difficult witnesses because they include "fantastical" elements in their testimonies or they cannot give detailed, accurate information to investigators, said Dr. Sharon Cooper. Cooper, a forensic pediatrician who has provided expert testimony in more than 300 cases involving internet and child sexual abuse crimes, also said that forensic interviews of children may not show any physical evidence of abuse, as many children wait years to disclose.

But child sexual abuse images “speak for themselves,” said Lt. Chad Gremillion, a detective with the special victims unit of the Louisiana State Police. “You can’t deny what they are, what the focal point is, the abuse of a video where a four-year-old is being forced to provide oral sex to a male in a home,” Gremillion said.

The need for child victims of sexual abuse to testify at trial also is an issue.  Defense attorneys surveyed by The Times said they often encourage clients to plead guilty to reduced charges to avoid a trial and in exchange for less prison time. Prosecutors and victims’ families often accept those pleas to prevent further trauma to the children involved, said Caddo Parish Assistant District Attorney Monique Metoyer.  Many young children simply are not emotionally equipped to testify in an open courtroom, Metoyer said.... Another difficulty in prosecuting child sexual abuse cases is that victims often know their abusers.  

Another way some say the law is outdated: Those who upload child sexual abuse images to the internet, where they can be accessed by anyone in the world, can be charged under federal law with transporting materials across state lines — even though all they did was click a button on a home computer, said Katherine Gilmer, also a Shreveport defense attorney.  

As happened with Jesse Ward, the police officer who was caught after sharing a single image depicting child sexual abuse with an online undercover agent.  Law enforcement officers also found "more than ten electronic images" of child pornography on a computer hard drive in his home in McDuffie County, Georgia, according to court documents.  Ward initially was charged with three counts: possession, receipt and transportation of child pornography. Two of Ward's charges — receipt and possession of child pornography — were dropped upon the conviction of the third, more serious charge, transporting child pornography.  The transportation charge applied because he had uploaded the image to a network from which users in other states could download it — thus crossing state lines, a distinction that gained his crime federal status.  Ward was sentenced to 20 years.

But those who possess, and do not share, child sexual abuse images also often face stiffer sentences than those who commit contact crimes against children.  Melville resident Russell Guillory was sentenced to 10 years in prison in 2016 for possessing child pornography. The Lafayette man's collection included 75 videos and six images of child sexual abuse — including images depicting penetration of a 2-year-old child.

A judge, in imposing sentence, said that the materials were “especially heinous” and that the “very young children” in the materials “were not in a position of sufficient strength to resist the sexual abuse,” according to court documents. In a letter to the Times, written in April, Guillory said his sentence did not match his crime.  “Even good people make mistakes, but mistakes should never make a person,” Guillory wrote.  “We all have moments of weakness and make mistakes.”...

Unlike many contact sex crimes, child pornography possession and distribution charges carry mandatory minimum sentences, while judges in child sexual contact crimes have more discretion at sentencing. Child pornography crimes carry a mandatory five to 20 years of prison time....

Peter Flowers, a defense attorney in Shreveport, said the law has not been updated to reflect changes brought by the internet and digital photography. He voiced frustration with how the criminal justice system handles those convicted of child pornography offenses, especially because of what he termed “outdated” enhancements. “It used to be that if you amassed 500 pictures, you really had to work hard. Now, it’s just pressing a button. It’s not the same thing,” he said.

Flowers also said undercover stings — in which agents pose online as underage children and then arrest adults who initiate sexual conversations — catch only the “low-hanging fruit.”

“There are some serious child pornographers out in the deep, dark web, and that’s where the real danger is,” he said. “The real deal is much deeper.”

Regardless of prison time, all sex crimes in Louisiana require sex offender registration, which can provide a degree of closure for child victims and their families or destroy an offender’s life forever, depending on whom you talk to. Flowers said registration is a “very serious thing” and “not just about having a sign put in your yard or having a strip across your driver’s license.”  Offenders can’t pick their own children up from school.  Those who live within 1,000 feet of a school, church or a park must sell their homes and move, Flowers said....

Law enforcement officers, for the most part, expressed little sympathy for those convicted of possessing or distributing child pornography.... Corey Bourgeois, lead investigator at the Louisiana Attorney General’s cyber crime lab in Baton Rouge, said the state sentencing guidelines fit the crimes. “You know how you got that image?  Somebody was abused to get that image,” he said.  Metoyer said those who access child sexual abuse images chose to do so. “Even though we’re looking at images of children and you may not see the children in the room with you, these are real children,” Metoyer said.  “This has impacted them for the rest of their lives.”

May 25, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (15)

Wednesday, May 24, 2017

"Ambition and Fruition in Federal Criminal Law: A Case Study"

The title of this post is the title of this interesting and timely new paper by Lauren Ouziel now available via SSRN. Here is the abstract:

This Article explores a recurrent puzzle in federal criminal law: why do the outcomes of a law — who ultimately gets prosecuted, and for what conduct — diverge, sometimes markedly, from lawmakers’ and enforcers’ aims?  This disconnect between law’s ambition and fruition is particularly salient in federal drug enforcement, which has focused on capturing the most high-value offenders — large scale traffickers, violent dealers, and the worst recidivists — yet has imprisoned large numbers of offenders outside these categories.  In this respect, federal drug enforcement is a case study in the ambition/fruition divide.

Among the divide’s contributing factors, I focus here on organizational dynamics in enforcement: the pressures and incentives among and within the organizations that collectively comprise the federal drug enforcement enterprise.  These pressures and incentives operate along three vectors: between the enforcers and the enforced; across and within federal enforcement institutions; and between federal and local enforcers.  Together, they create a system that stymies focus on the most culpable even as it makes apprehending them a principal aim.  This insight carries important implications for reform, both within drug enforcement and outside it.  Changing who, and how many, we prosecute requires attention not only to laws, but also the lower-visibility spaces in which enforcement patterns take root.  In the new political landscape, these lower-visibility spaces are federal criminal justice reform’s next frontier.

May 24, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, May 22, 2017

Minnesota Supreme Court upholds consecutive sentences adding up to 90 years before parole eligibility for juve killer of three

Via this new commentary criticizing the opinion, I just learned of this notable ruling handed down last week by the Minnesota Supreme Court concerning the application of the Supreme Court's Eighth Amendment rulings in Miller and Montgomery. The commentary provides a helpful summary of the ruling and the concerns it might engender for those eager for Miller to have a broad reach:

In 2010, at the age of 16, Mahdi Hassan Ali committed a terrible crime in Minneapolis.  During the course of a store robbery, Ali shot and killed three people.  He was tried as an adult, and a jury found him guilty of two counts of felony murder and one count of first-degree murder.  On the felony murder convictions, the Hennepin County District Court sentenced Ali to two consecutive life sentences with the possibility of release on each after 30 years; on the first-degree murder conviction, Ali was sentenced to mandatory life imprisonment without the possibility of release....

In light of Miller [decided in 2012], the Minnesota Supreme Court overturned Ali’s sentence of mandatory life imprisonment and remanded the case back to the Hennepin County District Court for a new sentence.  On Jan. 6, 2016, Ali was sentenced to three consecutive sentences of life imprisonment with the possibility of release on each after 30 years. The sentences render Ali ineligible for release until he is 106 years old.

Shortly after the district court’s decision, the U.S. Supreme Court issued a new opinion in Montgomery vs. Louisiana, which offered fresh insight into the Miller ruling. Montgomery explained that the court intended Miller to bar all sentences of life without parole, not just mandatory ones, for any but the rarest of juvenile offenders who were permanently incorrigible and unable ever to be reformed....

Notwithstanding these decisions, the Minnesota Supreme Court filed an opinion last week upholding Ali’s sentences of three consecutive life terms.  In an opinion authored by the newly elected Justice Natalie Hudson, the Minnesota court decided that Miller and Montgomery apply only to single sentences of life without parole, refusing to extend the principles articulated in Miller and Montgomery to consecutive sentences that have the same effect.

Rather than requiring a special hearing to determine Ali’s prospects for reform, as Montgomery requires for sentences of life imprisonment without parole, the court decided that consecutive life sentences require no such hearing, even when they will likely result in a juvenile offender’s being imprisoned until death.

Last week’s opinion from the Minnesota Supreme Court will offer state prosecutors a new tool when seeking to imprison children for the duration of their natural lives.  For juvenile offenders convicted of serious offenses, prosecutors will seek lengthy consecutive sentences rather than seeking sentences of life imprisonment without parole.  Under the opinion, this tack will obviate the need for a hearing to determine whether the juvenile is amenable to reform, regardless of the length of the child’s sentence.

Like the author of this commentary, I am troubled whenever it seems courts are embracing formal rather than functional considerations to limit the reach of the Eighth Amendment juvenile sentencing proportionality rules set forth in Graham and Miller and Montgomery.  Still, for reasons the majority opinion in this Ali case stresses, I can understand why many courts have in various settings given constitutional significance in Eighth Amendment analysis to the fact that a defendant has been sentenced to an extreme term for multiple serious crimes rather than just one. Notably, the US Supreme Court has never formally addressed just how multiple-offense, consecutive sentencing should be analyzed under the Eighth Amendment, and this Minnesota case serves to highlight how this is one of a number of Graham and Miller and Montgomery application issues challenging lower courts nationwide.

May 22, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (20)

California struggles over whether all sex offenders can be excluded from Prop 57 parole reforms aimed at non-violent offenders

This new Los Angeles Times article, headlined "Debate over sex offenders moves to court as California undertakes prison parole overhaul," provides an updated on the legal and policy issues surrounding sex offenders in the wake of a California ballot initiative intended to help non-violent offenders get an earlier chance for parole. Here are excerpts:

Los Angeles-based nonprofit is claiming California prison officials have undermined last fall’s ballot measure to overhaul the state’s parole process by excluding sex offenders from consideration for early release. The Alliance for Constitutional Sex Offense Laws, which advocates for the rights of those convicted of sex crimes and their families, says the exemption — written into newly released guidelines to implement Proposition 57 — “impermissibly restricts and impairs the scope” of the initiative.

Those regulations were released in March and won initial approval from state regulators a month later. But the original ballot measure did not exclude inmates convicted of sex crimes from the chance of getting an earlier hearing before the state parole board.

The group filed the lawsuit in late April against the state Department of Corrections and Rehabilitation and its director, Scott Kernan. It argues the new rules are unconstitutional and it asks a judge to order corrections officials to withdraw and repeal them, according to the complaint filed in Sacramento County.

“We want the benefits of Proposition 57 to be provided to people who have been convicted of ‘non-violent’ sex offenses,” said attorney Janice Bellucci, who is representing the alliance and an inmate who brought the case forward. “It is a basic rule of law that regulations cannot be broader than the law that they are implementing.”...

Debate over the treatment of sex offenders under Proposition 57 has simmered since last fall’s campaign season. But at that point, the outcry came from law enforcement officials and prosecutors who argued they did not want to see the ballot measure’s benefits extended to rapists and child molesters.

The sweeping initiative, approved by 65% of voters, gave new power to the State Board of Parole Hearings to grant early release to prisoners whose primary sentences are for crimes not designated as “violent” under California law. It also provided new ways for all inmates to earn time credits toward their sentences for good behavior and for enrolling in certain career, rehabilitation and education programs.

Opponents of Proposition 57 warned that the list of crimes under the violent felony penal code was short and porous, inspiring efforts in the Legislature this session to expand the definition of what constitutes a violent crime under state law. In his January budget proposal, Gov. Jerry Brown attempted to address those concerns, directing the state corrections department to exclude all sex offenders from early parole consideration. The department’s new parole guidelines are expected to receive final approval in the fall after a public comment period. Changes to how inmates can earn credits, which can help reduce their sentences, are already underway, while the new parole eligibility requirements won’t take effect until July.

But the advocacy group that filed the lawsuit wants the state agency to revise its rules. It contends that there was plenty of public debate over sex offenders during the Proposition 57 campaign — and that even then, voters passed the measure.... The lawsuit alleges the new exclusion applies to a whole class of nonviolent offenders, including people charged with crimes where there was no sexual contact with a victim.

As of Dec. 31, the number of inmates in California prisons who would have to register as sex offenders upon release stood at 22,455, less than 20% of the population housed at state prisons. Nearly 18,000 were designated as “violent” offenders, while more than 4,521 were considered “nonviolent,” according to state corrections officials.

Bellucci said those cases could include a diverse group of offenders. In theory, she said, the new regulations could unfairly penalize an 18-year-old convicted of public indecency for streaking in high school, or a 16-year-old sentenced for child pornography after distributing nude photos of herself. “Anybody who has been convicted of a violent offense, like rape, Prop. 57 doesn’t apply to them,” Bellucci said. “We are talking about nonviolent offenses, which includes these non-contact offenses.”

I would be shocked to learn that California has any teenage streakers or sexters imprisoned for lengthy periods now hoping to get early parole. I suspect the more realistic example of the sex offender who might claim to be non-violent and seek early parole are California variations on offenders like Jared Fogle or Anthony Weiner, i.e., older men involved with child pornography or perhaps other kinds of sexual activity with underage persons.  It will be interesting to see if the California courts allow of prohibit these kinds of offenders from being excluded from the reforms of Prop 57.

May 22, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

Saturday, May 20, 2017

"Proportional Mens Rea and the Future of Criminal Code Reform"

The title of this post is the title of this new paper authored by Michael Serota and available via SSRN.  Here is the abstract:

This Essay argues that the principle of proportional mens rea — roughly, the idea that more blameworthy states of mind should be punished more severely, while less blameworthy states of mind should be punished more leniently — is central to the administration of justice, yet has largely been ignored by American criminal justice policies.  I contend that this oversight provides a key justification and source of guidance for future criminal code reform efforts, while explaining how a criminal code reform agenda premised on the principle of proportional mens rea might be realized as a matter of course.

The Essay is comprised of three parts. Part I sets forth the theory of proportional mens rea and criminal legislation animating this Essay.  Part II highlights the extent to which American criminal codes, as well as American sentencing policies more generally, fail to live up to this normative benchmark.  Part III then concludes with a discussion of the two main models of criminal code reform, what I respectively refer to as the thick model and the thin model, through which efforts to better align criminal codes with the principle of proportional mens rea might proceed.

May 20, 2017 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Saturday, May 13, 2017

Former LA Sheriff gets three years in federal prison after obstruction convictions connected to corruption scandal involving county jails

This Los Angeles Times article, headlined "Ex-L.A. County Sheriff Lee Baca sentenced to three years in prison in jail corruption scandal," effectively reports on the final federal sentence handed down late yesterday to a high-profile former law enforcement official. Notably, as discussed below, the defendant here had a much more lenient plea deal rejected, was nearly acquitted at a trial, and ultimately got a prison term 50% longer than what prosecutors recommended.  Here are the details:

Former Los Angeles County Sheriff Lee Baca, once a towering, respected figure in policing, was sentenced Friday to three years in federal prison for his role in a scheme to obstruct an FBI investigation of abuses in county jails, marking an end to a corruption scandal that has roiled the Sheriff’s Department for several years.

U.S. District Judge Percy Anderson announced Baca’s fate in a downtown courtroom filled with loyal supporters on one side and the FBI agents and prosecutors who ensnared him on the other. Baca, 74 and suffering from the early stages of Alzheimer’s disease, showed no emotion as the decision was read. Before issuing the sentence, Anderson, who has dealt unsparingly with the former sheriff throughout his legal battle and last year threw out a plea deal that would have sent Baca to prison for no more than six months, unleashed a scathing rebuke of the man who ran one of the nation’s largest law enforcement agencies for 15 years.

Excoriating Baca’s refusal to accept responsibility for having overseen and condoned the obstruction ploy carried out by subordinates, the judge portrayed him as a man driven by his desire to protect his own reputation and maintain control over the Sheriff’s Department. “Your actions embarrass the thousands of men and women [in the department] who put their lives on the line every day,” Anderson said to Baca. “They were a gross abuse of the trust the public placed in you.”

The prison term, Anderson added, should serve as a deterrent to other public servants. “Blind obedience to a corrupt culture has serious consequences,” he said. “No person, no matter how powerful, no matter his or her title, is above the law.”

Baca was ordered to surrender to federal prison officials by July 25. Although he is expected to ask to remain free on bail while he pursues an appeal, it is an open question whether he will be allowed to do so. Anderson denied the same request from Baca’s second in command, former Undersheriff Paul Tanaka, who was forced to begin his five-year sentence....

In going after Baca, a team of prosecutors headed by Assistant U.S. Atty. Brandon Fox meticulously worked its way up the department’s ranks, charging lower-level figures and members of Baca’s command staff before bringing charges of obstruction of justice, conspiracy and lying against the sheriff himself.

He is the ninth person to be convicted and sentenced to prison as part of what Fox convinced several juries was a cunning conspiracy to interfere with FBI agents as they worked to gather evidence for a grand jury investigation into allegations of widespread abuse by deputies working in county jails run by the sheriff’s department. A 10th conspirator, former sheriff’s Capt. William “Tom” Carey, pleaded guilty in a deal with prosecutors and testified against Baca. Carey is scheduled to be sentenced later this month. Several other deputies were convicted in a series of trials for beating inmates or helping to cover up the abuse....

Baca’s attorney, Nathan Hochman, nearly won Baca an acquittal at a trial late last year by hammering the government for the scarcity of hard evidence tying Baca directly to the obstruction plan. That proceeding ended in a mistrial when the jury deadlocked with all but one juror voting to acquit Baca. For the second trial, however, Fox revamped his case and Anderson issued a string of rulings that hamstrung Hochman. All along, Hochman argued that while Baca was upset by the FBI investigation, he never authorized anything illegal. Tanaka, he said, was the ringleader who carried out the obstruction without Baca’s knowledge.

In giving Baca three years in prison, Anderson struck a middle ground of sorts. Federal sentencing guidelines called for a term of 41 to 51 months. Under normal circumstances, the government would have urged Anderson to come down within that range, Fox wrote in court filings.

But Baca’s age, his diagnosis last year with Alzheimer’s and medical experts’ expectation that his mind will have deteriorated badly within a few years were legitimate mitigating factors in determining his punishment, Fox said. “The interests of justice will not be served by defendant spending many years behind bars in a severely impaired state,” the prosecutor wrote. He recommended that Baca be sentenced to two years in prison.

Hochman, meanwhile, urged Anderson in court papers and again on Friday to spare Baca any time in prison, saying he should instead be confined to his home for a period of time and perform community service. In a lengthy last-ditch bid for leniency, Hochman reviewed Baca’s nearly five decades of service in the sheriff’s department, saying he served “with distinction and honor.”

The true measure of the man, Hochman insisted, was seen in the the education programs he started as sheriff for inmates and at-risk youth. Hochman submitted to Anderson letters from a few hundred of Baca’s supporters, including former Gov. Arnold Schwarzenegger and several local religious leaders. The inevitable toll from Alzheimer’s was another reason to spare him prison, Hochman said. “This diagnosis is a sentence of its own. It is a sentence that will leave him a mere shell of his former self and one that will rob him of the memories of his life,” he wrote in a court filing.

Anderson rejected out of hand the idea that Baca should avoid time in prison. He acknowledged Baca’s lengthy record as a public servant, but said it made his crimes more perplexing. "Mr. Baca's criminal conduct is so at odds with the public image he carefully crafted,” Anderson said. Like old B-movies, "you seem to have your own version of the good cop/bad cop routine … that allowed you to keep your hands clean but did not make you any less culpable.”

While the two-year sentence suggested by the government was not enough in Anderson’s eyes, the judge said he did take Baca’s failing health and career into account. Absent those factors, he said he would have imposed on Baca the same five-year sentence he gave Tanaka.

The sentence deepens the stain already imprinted on Baca’s legacy and the reputation he enjoyed as one of the nation’s most visible and respected reformers in law enforcement. While quirky to the point of being enigmatic, Baca was seen as a champion of progressive ideas, including the need for police to build strong ties to minority communities. He stepped down in 2014 with the department engulfed in the jail scandal.

May 13, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Thursday, May 11, 2017

Interesting report on plea realities impacting severity of sentences for sex trafficking offenses in Massachusetts

I just saw this recent Boston Herald article, headlined "Special Report: Sex traffickers evading tough prison sentences," which highlights the ways and reasons why a new Massachusetts law designed to toughen sentencing outcomes for certain sex offenders may not get consistently applied due to plea practices and related case-processing dynamics.  Here are excerpts:

Accused pimps and sex traffickers who could face decades behind bars under state law are often being allowed to plead down to less time and reduced charges, with more than half of convictions netting minimum sentences or less, according to a Herald review.

The softer sentencing patterns identified by a Herald survey of cases prosecuted by the attorney general and the state’s 11 district attorneys come five years after lawmakers passed a much-ballyhooed sex-trafficking law billed as a get-tough measure on criminals driving the sex trade.  But prosecutors and victim advocates say the sentences highlight the long-standing challenge in bringing complex cases reliant on vulnerable and sometimes reluctant victims.

The law called for sentences of five to 20 years for those convicted of trafficking, and up to life for those who prostitute minors.  But a Herald review of 32 trafficking cases statewide found 21 defendants in a position to serve the minimum five-year sentence or less, with three getting outright probation.  At least 18 times defendants took pleas to reduced charges — avoiding a human-trafficking conviction entirely. The average sentence of all reviewed cases fell between four and five-and-a-half years.  That’s a rate state Sen. Mark Montigny, the bill’s chief sponsor, slammed as “abysmal” — and exactly what he was trying to avoid when he drafted the law.

“Never once in my career have I put a mandatory minimum in a bill, but in trafficking of children, I put one in because I didn’t want to see plea-bargaining down,” said Montigny, who decried what he called a “societal ignorance” around the seriousness of the sex trade. “It’s unbelievable. … Not much has changed. And I’m so disappointed in that.”...

Prosecutors have been able to secure some long sentences under the new law.  Tyshaun McGhee and Sidney McGee, the first defendants convicted under the statute, got sentences of 10-to-15 and 10-to-12 years, respectively, after a Suffolk County jury found them guilty.  Ryan Duntin, who plead guilty in 2015, got a 10-year sentence.

But prosecutors defended their handling of the pleaded, low-sentence cases, noting they face a web of challenges. Frightened witnesses are often battling intense trauma or substance abuse, and sometimes are reluctant to go to trial, which makes scoring a jury conviction difficult.  Other times authorities have initially brought trafficking charges against girlfriends of the pimps, known as “bottoms,” who help recruit and intimidate victims.  But they sometimes are also seen as exploited victims themselves, leading prosecutors to later bring reduced charges.

Other circumstances have played a role. In Suffolk County, one accused trafficker pleaded to receive a four- to five-year sentence after one of his alleged victims died of an overdose before trial, dealing a blow to the case. In Bristol County, prosecutors said they were forced to dismiss one case because the victim wouldn’t cooperate.

Prosecutors are also wary of forcing victims, especially minors, to take the stand and risk re-traumatizing them, said Jake Wark, a spokesman for Suffolk District Attorney Daniel F. Conley. “When you’ve got victims terrified about what might come up when they take the stand ... and they’re on board with a guilty plea and we can get a 10-year or an eight-year sentence, that’s a successful prosecution,” Wark said....

Stephanie Clark, executive director of Amirah, an advocacy group that works with and houses trafficking victims, said she wasn’t surprised traffickers are getting softer sentences, given that cases hinge on victims who may back out.

May 11, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Wednesday, May 10, 2017

"Understanding Recent Spikes and Longer Trends in American Murders"

The title of this post is the title of this timely new paper authored Jeffrey Fagan and Daniel Richman and now available via SSRN. Here is the abstract:

Since 2015, homicide rates have increased in several U.S. cities, while remaining stable in many others. Examining both recent and long-term trends in homicides and other violent crime across major cities, we find no reason to believe that these increases presage a new homicide epidemic, or that we will return to the era of elevated homicide rates that persisted in many U.S. cities over three decades through the mid-1990s. The homicide spikes may be momentary upticks in the two-decade long-term decline, and may also signal a new era of unpredictable and random surges or declines during an otherwise stable period.

We note that the spikes are generally occurring in smaller cities, with the important exception of Chicago. We then look at the neighborhood conditions in high crime areas in three large cities and show how the intersection of aggressive policing tactics and social contexts likely contribute to small areas of elevated homicide rates in otherwise safe cities. In each place, harsh police tactics, social isolation and disadvantage, and unsolved murders contribute to the withdrawal of citizens and police from the co-production of security. This Essay argues for a shift in policing tactics from order maintenance and proactive police contacts—with their potential to produce injustices and indignities—to a focus on homicide investigations, with the promise both of bringing offenders to justice, creating safe spaces for everyday social interactions, and restoring trust in the police.

May 10, 2017 in National and State Crime Data, Offense Characteristics | Permalink | Comments (5)

Tuesday, May 02, 2017

After his guilty plea to a civil rights offense, what federal guideline range and ultimate sentence will Michael Slager face for killing Walter Scott?

As reported in this ABC News piece, "police officer Michael Slager pleaded guilty today to a federal civil rights offense in the shooting death of unarmed black man Walter Scott, bringing a conclusion to the case two years after the police shooting was caught on video by a bystander."  Here are more of the case processing basics: 

Slager pleading guilty to violating Scott's civil rights in federal court this afternoon will end the federal case against him and also resolve the state charges that were still pending after a mistrial was declared in the state murder trial last year. Slager's mother and Scott's mother both wept in court as the 35-year old former cop was led away in handcuffs.

Slager, dressed in a gray suit, said very little, answering "yes" to each of the judge's questions about whether he was aware of the various rights he was surrendering.  Slager's attorney, Andrew Savage, said in a statement before court, "We hope that Michael’s acceptance of responsibility will help the Scott family as they continue to grieve their loss."...

Slager, who is white, was accused of killing Scott, an unarmed black man, at a traffic stop on April 4, 2015, while Slager was an officer with North Charleston's police department.  Video that surfaced shortly after the encounter appears to show the moment Slager fatally shot Scott as he ran away. The video garnered national attention, propelling Slager into the spotlight.  He was fired from the force after the shooting.

Slager was charged in South Carolina with murder and pleaded not guilty.  The case ended in a mistrial in December 2016 and the retrial was expected to take place this year.  The federal trial had been expected to take place later this month.  The Justice Department said in a statement today that, according to documents filed in connection with the guilty plea, Slager "willfully used deadly force on Walter Scott even though it was objectively unreasonable under the circumstances."...

Slager has not yet been sentenced and the sentence is at the discretion of the judge, Wilson said. Slager faces a maximum sentence of life in prison for the federal civil rights violation as well as a potential $250,000 fine, the Department of Justice said.

For those thinking about the sentence that Slager can and will face, the plea agreement put together in the case foreshadows some of the likely guidelines action. Specifically, here is what Section 5 of the plea agreement says (with my emphasis added):

The parties request that the Court apply the United States Sentencing Guidelines (Guidelines) to calculate the applicable sentence and impose a sentence consistent with the Guidelines and 18 U.S.C. § 3553. The defendant agrees to waive all constitutional challenges to the validity of the Guidelines.  The defendant understands and acknowledges that the Court will find, by a preponderance of the evidence, the facts used to determine the offense level and, that in making its findings, the Court may consider any reliable evidence, including hearsay. Nothing in this section prevents the parties from filing objections to the Presentence Report prepared by the United States Probation Office, or from arguing the application of specific sections of the Guidelines.  The parties agree that the Court will determine the final Guideline range.  The parties understand that this Plea Agreement binds the parties only and does not bind the Court. The defendant understands that the government will advocate for the Court to apply the guidelines for Second Degree Murder and Obstruction of Justice, and reserves the right to seek a guidelines sentence, up to and including a sentence of life imprisonment.   The defendant reserves the right to advocate for any sentence he deems appropriate and the right to request a downward departure and/or downward variance.

Based on my understanding of this bolded sentence, it would appear the government will advocate for these basic guideline calculations: base level of 38 (for 2d degree murder) + 2 (for obstruction) - 3 (for acceptance of responsibility) = offense level of at least 37.  (I say "at least" 37 for the offense level because some victim-related or other chapter 3 enhancements might be deemed applicable, and the last part of this bolded sentence hints that the government may think other enhancements are applicable.) 

At offense level 37, Slager as a first offender would be looing at a guideline range of 210 to 262 month (17.5 to 21.8 years).  Arguably, the bolded language would preclude the government from seeking a departure or variance above whatever is determined to be the calculated guideline range.  And one can reasonably expect Slager and his defense team will seek a downward departure or variance, though what exact sentence the defense will seek is an interesting issue to watch as sentencing approaches.

May 2, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (21)

Wednesday, April 26, 2017

Noting reasons for the recent drop in the federal prison population mitigating overcrowding at BOP facilities

The US Courts yesterday posted this notable short piece under the heading "Policy Shifts Reduce Federal Prison Population." The piece details the significant decline in the federal prison population in the last few years and also highlights reasons for it:

A decline in the number of federal prosecutions and in the severity of sentences for drug-related crime in recent years has resulted in a significant drop in the federal prison population, according to statistics from the Judiciary, the U.S. Sentencing Commission (USSC), and the Bureau of Prisons (BOP).

The federal prison population fell from a peak of nearly 219,300 inmates in 2013 to 188,800 in April 2017, a nearly 14 percent reduction, according to BOP statistics.  The decrease reflects a dramatic shift in federal policies away from stiff penalties for drug trafficking and other drug-related offenses in recent years.  It also has mitigated overcrowding at BOP facilities -- the inmate population, once at 37 percent overcapacity, is now at 13 percent overcapacity.

Changes in sentencing guidelines are a major contributor to the inmate population decline.  In 2011, the USSC implemented lower crack cocaine penalties in line with the Fair Sentencing Act passed by Congress the year before.  The new guidelines were made retroactive, which resulted in the release of prisoners who had already served their time under the new guidelines.  Because drug crimes account for nearly a third of all criminal filings in federal courts, changes in drug sentences have a big impact on the federal prison population....  In 2014, the commission took the step of cutting the length of sentences for all drug trafficking offenses, not just crack cocaine.  Sentences were reduced by about 25 percent, and the changes were also made retroactive....

Other factors contributing to the decreasing prisoner population:

• Federal prosecutions for all crimes have declined over the past five years.  Criminal cases were brought against 77,357 defendants in fiscal year 2016, the lowest total since fiscal 1998, according to the Administrative Office of the U.S. Courts.  Last year, 67,742 defendants were convicted and sentenced, compared to 86,201 in 2011, the USSC reports.  However, the trend could slow or reverse in the coming months as new Attorney General Jeff Sessions and the Trump administration step up prosecutions of drug-related crime and immigration offenses.

• Two Supreme Court rulings since 2015 resulted in sentence reductions for about 1,200 inmates.  The court in Johnson v. United States found that one of the definitions of a violent felony under the Armed Career Criminal Act was unconstitutionally vague.  A subsequent high court decision made the Johnson ruling retroactive, which prompted thousands of prisoners to petition for review of their cases.  Many of those cases are still under review by the lower courts.

April 26, 2017 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Monday, April 24, 2017

An empirical dive into federal "Health Care Fraud Sentencing"

The quoted title of this post is the title of this notable new Note authored by Kyle Crawford. Here is the abstract:

Health care fraud convictions are on the rise, but little is known about how health fraud offenders are sentenced.  This Note offers the first comprehensive empirical account of sentencing decisions in health fraud cases based on a new dataset constructed from United States Sentencing Commission data.  This analysis shows that there is a large disparity in how health fraud offenders are sentenced compared to other white collar offenders and general crimes offenders.  Between 2006 and 2014, health fraud offenders received fewer Guidelines-range sentences and more below-Guidelines sentences than other offenders.  This is because: (1) health fraud offenders are older, whiter, more educated, and less likely to have a criminal record than other offenders, which are demographic characteristics associated with lighter sentences; (2) judges are dissatisfied with the loss table, which is used to sentence most health fraud offenders; and (3) judges view the collateral consequences of sentencing health fraud offenders — many of whom are health professionals — as a mitigating factor.

This analysis also shows a stark difference in the number of health fraud cases brought in districts across the country.  The ten districts with the highest proportion of health fraud convictions account for nearly a quarter of all health fraud convictions. In addition, health fraud offenders go to trial more often than other offenders.  This results from the threat of severe collateral consequences — exclusion from Medicare and Medicaid and possible loss of a medical license.  These offenders have a larger incentive to go to trial than other offenders, especially because pleading guilty does not allow health fraud offenders to avoid these collateral consequences.

April 24, 2017 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0)

Tuesday, April 18, 2017

Lies, damned lies, and competing crime statistics from AG Sessions and the Brennan Center

My news feed today brought me to two notable pieces that emphasized modern crime realities in two notably different ways:

The scary crime story comes via this USA Today op-ed authored by Attorney General Jeff Sessions, which begins with this sharp sentence: "Violent crime is surging in American cities."  AG Sessions goes on to say this about current crime realities with a piece focused mostly on policing practices:

In Chicago, arrests have fallen 36% since 2014 to the lowest level in at least 16 years.  Last year, they fell in every major crime category, and they fell in every single district in the city.  To put that in perspective, out of more than 500 non-fatal shootings in early 2016, only seven resulted in any sort of arrest.  That’s 1%. Not surprisingly, as arrest rates plummeted in those years, the murder rate nearly doubled. Meanwhile in Baltimore, while arrests have fallen 45% in the past two years, homicides have risen 78%, and shootings have more than doubled.

Yet amid this plague of violence, too much focus has been placed on a small number of police who are bad actors rather than on criminals.  And too many people believe the solution is to impose consent decrees that discourage the proactive policing that keeps our cities safe....  When proactive policing declines and violent crime rises, minority communities get hit the hardest.  We will not sign consent decrees for political expediency that will cost more lives by handcuffing the police instead of the criminals. Every neighborhood needs to be safe and peaceful.

Our first priority must be to save lives, restore public safety, and bring back the community policing that we know works.  To help achieve those goals, the department, with the help of our federal, state and local law enforcement partners, will focus our efforts on thwarting violent crime, drug trafficking, and gun crime and gang violence.  If combating violent crime and restoring public safety are seen as dramatic reversals, then I fully support such a sea change.

The much more encouraging crime story comes via this new Brennan Center analysis of "Crime Trends: 1990-2016," which is promoted with this reassuring first phrase: "Crime rates have dropped dramatically and remain near historic lows." The Brennan Center analysis goes on to provide these "key findings" of modern crime realities in its executive summary:

Crime has dropped precipitously in the last quarter-century. While crime may fall in some years and rise in others, annual variations are not indicative of long-term trends. While murder rates have increased in some cities, this report finds no evidence that the hard-won public safety gains of the last two and a half decades are being reversed....

The violent crime rate also peaked in 1991 at 716 violent crimes per 100,000, and now stands at 366, about half that rate. However, the violent crime rate, like rates of murder and overall crime, has risen and fallen during this time.  For example, violent crime registered small increases in 2005 and 2006, and then resumed its downward trend.  In 2015, violent crime increased by 2.9 percent nationally and by 2.0 percent in the nation’s 30 largest cities. Preliminary data for 2016 also show a greater increase in the national violent crime rate, up 6.3 percent, and a smaller jump in the 30 largest cities, 2.4 percent. Crime is often driven by local factors, so rates in cities may differ from national averages.

From 1991 to 2016, the murder rate fell by roughly half, from 9.8 killings per 100,000 to 5.3. The murder rate rose last year by an estimated 7.8 percent. With violence at historic lows, modest increases in the murder rate may appear large in percentage terms. Similarly, murder rates in the 30 largest cities increased by 13.2 percent in 2015 and an estimated 14 percent in 2016. These increases were highly concentrated. More than half of the 2015 urban increase (51.8 percent) was caused by just three cities, Baltimore, Chicago, and Washington, D.C. And Chicago alone was responsible for 43.7 percent of the rise in urban murders in 2016....

The data demonstrate that crime rates and trends vary widely from city to city. In New York, for example, crime remains at all-time lows. Other cities, such as Washington, D.C., have seen murder rise and then fall recently, yet the rate is still lower than it was a decade ago. However, there are a small group of cities, such as Chicago, where murder remains persistently high, even by historical standards.

April 18, 2017 in National and State Crime Data, Offense Characteristics | Permalink | Comments (8)

Thursday, April 13, 2017

"Three Reasons Why Virginia May Execute an Innocent Man"

The title of this post is the headline of this notable new commentary authored by LawProf Cara Drinan.  Here are excerpts:

In 2006, a jury convicted Ivan Teleguz of hiring someone to kill Stephanie Sipe, his ex-girlfriend and the mother of his child. Now, more than a decade later, Virginia is scheduled to execute Teleguz on April 25, 2017, and there is substantial evidence suggesting that Teleguz is innocent.

How is that possible in the United States – the land of the free, where a poor person is entitled to legal counsel and a criminal defendant has numerous chances to be heard in court? Actually, it happens with some ease, and in part, it happens because of conscious choices we have made about our legal system. There are at least three reasons for this counter-intuitive reality.

1. Prosecutors, Not Judges or Juries, Resolve Most Criminal Cases in America ...

Teleguz’s case demonstrates this phenomenon well. There was no physical evidence connecting him to the murder of Ms. Sipe; the prosecution’s case was based on the testimony of three witnesses. Since his trial, two of those witnesses have recanted their testimony and have admitted that they lied when they implicated Teleguz in exchange for favorable treatment from the government. The Commonwealth repeatedly told the third witness, Ms. Sipe’s actual killer, that he would face the death penalty unless he “cooperated” with them by agreeing to testify against Teleguz in Ms. Sipe’s murder and sticking to that story. Not surprisingly, he did just that and he is serving out a life sentence while Teleguz faces imminent death.

2. The Myth of the Right to Counsel ...

Teleguz suffered at the hands of a broken system. Counsel in death penalty cases are held to a heightened standard of performance, and as part of that standard, they are expected to conduct extensive, careful investigation to prepare for the sentencing phase of the trial. Teleguz’s trial counsel was far from diligent, and as a result, the jury heard evidence that Teleguz was involved in another arranged murder. This evidence persuaded the jury to vote for the death penalty. Here’s the wrinkle: not only was Teleguz not involved in such a crime, the crime never happened. Years after his trial, that fact came to light, and the government has now acknowledged that the alleged prior murder did not happen. But the jury verdict stands.

3. Not So Appealing Appeals Process ...

Surely, the multi-layered appellate process would ferret out an error of this magnitude and provide a remedy? Not necessarily. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and in the process “gutted the federal writ of habeas corpus, which a federal court can use to order the release of someone wrongly imprisoned.” Today, the American appellate process is an intricate web of procedural rules, and, in fact, "we have purposefully designed our system of appellate review to examine almost everything but factual guilt or innocence."

That might be defensible if we could be confident in the accuracy of our criminal justice system, but we can’t be. Since 1989, there have been more than 2,000 exonerations in the United States.  In 2015 alone, 58 people were exonerated of homicide convictions. Like many of those individuals, Teleguz has consistently maintained his innocence. Today there is new evidence to support that claim that no court has fully examined.

In the next few days, Governor Terry McAuliffe can’t do much about prosecutorial overreach, problems with indigent defense, and the complex appellate process.  But he can recognize that, because of these systemic failures, there is substantial doubt about Teleguz’s guilt. Governor McAuliffe should grant clemency and stop Teleguz’s execution.

This recent AP article, headlined "Conservatives urge Virginia governor to spare inmate's life," highlights that it is not only a law professor urging Gov McAuliffe to act in this capital case.

UPDATE: A commentor has usefully noted that the Fourth Circuit opinion in this case, which is available here, provides a different perspective on this case and Teleguz's claims of innocence.

April 13, 2017 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21)

"Four Decades and Counting: The Continued Failure of the War on Drugs"

The title of this post is the title of this new Policy Analysis from the Cato Institute authored by Christopher Coyne and Abigail Hall. Here is the 28-page document's Executive Summary:

Private individuals and policymakers often utilize prohibition as a means of controlling the sale, manufacture, and consumption of particular goods.  While the Eighteenth Amendment, which was passed and subsequently repealed in the early 20th century, is often regarded as the first major prohibition in the United States, it certainly was not the last.  The War on Drugs, begun under President Richard Nixon, continues to utilize policies of prohibition to achieve a variety of objectives.

Proponents of drug prohibition claim that such policies reduce drug-related crime, decrease drug-related disease and overdose, and are an effective means of disrupting and dismantling organized criminal enterprises.

We analyze the theoretical underpinnings of these claims, using tools and insights from economics, and explore the economics of prohibition and the veracity of proponent claims by analyzing data on overdose deaths, crime, and cartels.  Moreover, we offer additional insights through an analysis of U.S. international drug policy utilizing data from U.S. drug policy in Afghanistan.  While others have examined the effect of prohibition on domestic outcomes, few have asked how these programs impact foreign policy outcomes.

We conclude that prohibition is not only ineffective, but counterproductive, at achieving the goals of policymakers both domestically and abroad.  Given the insights from economics and the available data, we find that the domestic War on Drugs has contributed to an increase in drug overdoses and fostered and sustained the creation of powerful drug cartels. Internationally, we find that prohibition not only fails in its own right, but also actively undermines the goals of the Global War on Terror.

April 13, 2017 in Drug Offense Sentencing, Offense Characteristics, Race, Class, and Gender, Sentencing around the world | Permalink | Comments (4)

Florida judge imposes 100 years in prison for child porn possession for first offender claiming innocence

This local article about a state sentencing in Florida, headlined "Man, 37, sentenced to 100 years for child porn conviction," reports on a remarkably severe sentence handed down yesterday. Here are the details:

A 36-year-old St. Johns County man is looking at spending the rest of his life behind bars after Circuit Court Judge Howard Maltz sentenced him to 100 years in prison Wednesday morning. The sentencing came nearly two months after a jury found Jesse Graham Berben guilty on 20 counts of possession of child pornography at the end of a two-day February trial.

Berben, who maintained his innocence even through his sentencing hearing Wednesday, was arrested by St. Johns County Sheriff’s Office detectives in April 2015 after authorities obtained a search warrant for his Washington Street apartment — where he was living with his father at the time — and finding files containing the pornography on his computer.

His arrest report indicates that Berben denied knowing anything about the files or how they ended up on his computer. While he admitted to having a peer-to-peer file-sharing program that he used to download music, he denied using his computer to keep or download child pornography and said that if such files were found that it must have been compromised in some way.

Berben’s attorney, Tom Cushman, said after the sentencing that his client had maintained his innocence to him from the day that they first met, and that Berben had been offered a plea agreement from the state that would have netted him a prison sentence of about 5 years, “but he refused to plead because he said he was not guilty and he wasn’t going to plead guilty to something he didn’t do and become a registered sex offender with it.”

The sentence he ultimately received was more than four-times the “lowest permissible” sentence Maltz could have handed down based on sentencing guidelines submitted in court Wednesday (the maximum sentence was life in prison). It was also beyond even what Assistant State Attorney Mitch Bishop asked for while standing in for his colleague Chris Ferebee, who prosecuted the case.

Bishop, in his remarks before sentencing, said that the images — most of them movie files — found on Berben’s computer depicted children, some as young as 5-years-old, engaged in various sex acts. He pushed back on the notion, expressed by some, that merely possessing such images is not nearly as bad as carrying out the acts depicted.

“The problem with that is that viewing these images, possessing these images creates a market for someone else to produce them,” he said. “I don’t think that point should be overlooked.” Berben, he argued, not only downloaded the files but kept them in the file sharing program, making them available to others.

Bishop asked Maltz for a sentence that would include the rest of Berben’s “meaningful life,” arguing that someone who is “sexually gratified by” or even “sexually curious” by such images does not possess much “rehabilitative potential.”...

Cushman, citing his client’s 10 years of military service and lack of any criminal record, asked Maltz to consider something far less than Bishop asked for, and pointed out that the sentencing guidelines for the possession of child pornography made his client eligible for a punishment “possibly greater than if he’d actually committed the act.”...

Maltz, though, citing the images seen at the trial, called the case “quite troubling” and said he agreed with the state’s argument against any notion that possession of the images is a victimless crime. “I see little difference in culpability between those who actually sexually abuse and exploit children, and those who encourage and promote the conduct by downloading and sharing videos of such, which I think warrants a significant sentence,” he said.

Maltz sentenced Berben to five years in prison for each of the 20 counts, to be served consecutively. Cushman said Berben plans to appeal the sentence.

I am pretty sure that Florida lacks any general parole provisions, so the defendant in this case is certain to die in prison if his convictions or sentence is not modified on appeal.  Notably, a somewhat similar case from Florida a few years ago, the Vilca case discussed here where an LWOP sentence was imposed for child porn possession, had convictions reversed based on a discovery violation as noted here.  Also, in a similar case from South Dakota, the Bruce case discussed here, the South Dakota Supreme Court found a 100-year prison sentence for child porn possession constitutionally excessive.

It will be interesting to see if this case might get the level of attention that some others involving extreme prison terms sometimes do.  And it will be interesting to see how the Florida courts engage with these matters on appeal. 

April 13, 2017 in Examples of "over-punishment", Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (22)

Tuesday, April 11, 2017

AG Sesssions issues memo to federal prosecutors that "mandates the prioritization of criminal immigration enforcement"

As reported in this press release from the US Justice Department, "Attorney General Jeff Sessions today spoke to Customs and Border Protection personnel at the United States-Mexico border in Nogales, Arizona," and in his remarks the AG "announced that he has issued [this] attached memo to United States Attorneys that mandates the prioritization of criminal immigration enforcement."  Here is more from the press release and the speech it references:

The memo directs federal prosecutors to focus on particular offenses that, if aggressively charged and prosecuted, can help prevent and deter illegal immigration.  Additionally, the Attorney General revealed that the Department of Justice will add 50 more immigration judges to the bench this year and 75 next year. He also highlighted the Department's plan to streamline its hiring of judges, reflecting the dire need to reduce the backlogs in our immigration courts....

[From the AG's speech:]

[T]oday, I am pleased to stand here with you and announce new guidance regarding our commitment to criminal immigration enforcement.  As we speak, I am issuing a document to all federal prosecutors that mandates the prioritization of such enforcement.

Starting today, federal prosecutors are now required to consider for prosecution all of the following offenses:

  • The transportation or harboring of aliens. As you know too well, this is a booming business down here.  No more.  We are going to shut down and jail those who have been profiting off this lawlessness — people smuggling gang members across the border, helping convicted criminals re-enter this country and preying on those who don’t know how dangerous the journey can be.

  • Further, where an alien has unlawfully entered the country, which is a misdemeanor, that alien will now be charged with a felony if they unlawfully enter or attempt enter a second time and certain aggravating circumstances are present.

  • Also, aliens that illegally re-enter the country after prior removal will be referred for felony prosecution — and a priority will be given to such offenses, especially where indicators of gang affiliation, a risk to public safety or criminal history are present.

  • Fourth: where possible, prosecutors are directed to charge criminal aliens with document fraud and aggravated identity theft — the latter carrying a two-year mandatory minimum sentence.

  • Finally, and perhaps most importantly: I have directed that all 94 U.S. Attorneys Offices make the prosecution of assault on a federal law enforcement officer — that’s all of you — a top priority. If someone dares to assault one of our folks in the line of duty, they will do federal time for it.

To ensure that these priorities are implemented, starting today, each U.S. Attorney’s Office, whether on the border or interior, will designate an Assistant United States Attorney as the Border Security Coordinator for their District.  It will be this experienced prosecutor’s job to coordinate the criminal immigration enforcement response for their respective offices.

For those that continue to seek improper and illegal entry into this country, be forewarned: This is a new era.  This is the Trump era.  The lawlessness, the abdication of the duty to enforce our immigration laws and the catch and release practices of old are over.

April 11, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Thursday, April 06, 2017

Federal district judge declares unconstitutional Arizona law requiring defendant to prove lack of sexual intent for contact with child

A helpful reader alerted me to this new Slate article, headlined "Federal Judge Rules Arizona’s Diaper Changing Child Molestation Law Is Unconstitutional," reporting on a notable new federal district court ruling concerning a remarkable Arizona criminal law. The start of the Slate article provides the background and links to relevant rulings:

Last September, the Arizona Supreme Court issued a stunning decision interpreting the state’s child molestation law to criminalize any contact between an adult and a child’s genitals. In a 3–2 decision, the court found that the law encompassed entirely innocent conduct, such as changing or bathing a baby.  Arizona, the court held, could convict an adult for touching an infant’s genitals — which carries a prison sentence of five years — without proving sexual intent.  Instead, under the law, the accused had the burden of proving that he had no sexual intent to a jury and by a preponderance of the evidence.  As the dissenters noted, the ruling turned “parents and other caregivers” in the state into “child molesters or sex abusers under Arizona law.”

Reason, however, has now prevailed. Last week, a federal judge ruled that the Arizona statute, as interpreted by the state Supreme Court, is unconstitutional. In a lengthy decision, U.S. District Judge Neil V. Wake cogently explained why the law violates the Due Process Clause of the 14th Amendment, vindicating the two justices who dissented on those grounds in September.  He also reminded Arizona that parents have a constitutional right to care for their children — a right the state may not interfere with by criminalizing hygienic care.

The basic flaw in the Arizona law is pretty conspicuous. According to the statute, an individual is guilty of child molestation if he “intentionally or knowingly … touch[es] … any part of the genitals, anus or female breast” of a child “under fifteen years of age.”  Notice something strange there?  Despite calling itself a child molestation statute, the law does not require the “touching” to be sexual. Thus, a caregiver who “intentionally or knowingly” touches an infant’s genitals while changing his diaper is clearly guilty of violating the law. No other state save Hawaii does not require sexual intent for a child molestation offense.

Arizona defended its statute by noting that the defendant could still assert “lack of sexual motivation” as an “affirmative defense” at trial — requiring him to prove his benign intent “by a preponderance of the evidence.”  The Arizona Supreme Court was satisfied with this loophole, holding that it rendered the law constitutional.  Wake was not so easily fooled. Under the Due Process Clause, Wake noted, the government carries the burden of proving each element of a crime beyond a reasonable doubt.  Yet the Arizona law shifts the burden onto the defendant, forcing him to disprove “the very thing that makes child molestation child molestation.”

That requirement, Wake explained, “violates the Fourteenth Amendment’s guarantees of due process and of proof of guilt beyond a reasonable doubt.”  Due process does not permit Arizona “to remove the essential wrongfulness in child molestation and place the burden of disproving it upon people engaged in a wide range of acts, the vast majority of which no one could believe the state meant to punish.”  Indeed, Arizona cannot lawfully punish “the vast majority” of conduct swept up by the statute.  The U.S. Supreme Court has found that the Due Process Clause “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”  Therefore, Wake concluded, Arizona may not criminalize “constitutionally protected … innocent conduct” such as “diapering and bathing infants.”

April 6, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (13)

Friday, March 31, 2017

New report spotlights concerns with disabilities and bad lawyering for eight Arkansas condemned scheduled for execution next month

In this post last year, I noted the initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).  And, as regular readers now know, FPP is now regularly producing notable reports and research on the administration of various sentencing systems in various parts of the nation.   The latest timely report from FPP is titled "Prisoners on Arkansas’s Execution List Defined By Mental Illness, Intellectual Disability, and Bad Lawyering," and here is how it gets started:

Since the Supreme Court reinstituted the death penalty in 1976, Arkansas has executed just 27 people.  It has not sent an inmate to the death chamber since 2005.  But beginning on April 17, Arkansas intends to execute an unprecedented eight men in just ten days.

This report examines the cases of those condemned men, and what we found is devastating.  At least five of the eight cases involve a person who appears to suffer from a serious mental illness or intellectual impairment.  One of these men was twenty at the time of the crime, suffered a serious head injury, and has a 70 IQ score.  Another man suffers from paranoid schizophrenia and believes that he is on a mission from God.  He sees both his deceased father and reincarnated dogs around the prison.  A sixth condemned inmate endured shocking sexual and physical abuse–he was burned, beaten, stabbed, and raped, and his mother pimped him out to various adults throughout his preteen and teen years.  In the two remaining cases, there is no evidence to suggest that the attorneys ever conducted even a minimally adequate mitigation investigation to determine if their clients had any illnesses or disabilities.

Across the eight cases, the quality of lawyering that we detected falls short of any reasonable standard of effectiveness–one lawyer was drunk in court, while another struggled with mental illness. Several of the lawyers missed deadlines, failed to visit their clients, and continued on a case despite the appearance of a conflict of interest. Taken together, these cases present a foundational challenge to the legitimacy and integrity of the death penalty in Arkansas.  The Governor should declare a moratorium on executions so these legal deficiencies can be given a closer look, or else the Courts must intervene to stop these executions in order to preserve public confidence in the rule of law.

March 31, 2017 in Death Penalty Reforms, Offense Characteristics, Who Sentences? | Permalink | Comments (7)

Wednesday, March 29, 2017

Notable review of recent ups and downs in federal prosecutions

FT_17.03.23_prosecutions_numberIn this new posting over at the Pew Research Center, John Gramlich has assembled interesting data on federal modern criminal justice realities under the headline "Federal criminal prosecutions fall to lowest level in nearly two decades." Here are highlights:

After peaking in 2011, the number of federal criminal prosecutions has declined for five consecutive years and is now at its lowest level in nearly two decades, according to a Pew Research Center analysis of new data from the federal court system. The decline comes as Attorney General Jeff Sessions has indicated that the Justice Department will reverse the trend and ramp up criminal prosecutions in the years ahead.

Federal prosecutors filed criminal charges against 77,152 defendants in fiscal year 2016, according to the Administrative Office of the U.S. Courts. That’s a decline of 25% since fiscal 2011, when 102,617 defendants were charged, and marks the lowest yearly total since 1997. The data count all defendants charged in U.S. district courts with felonies and serious misdemeanors, as well as some defendants charged with petty offenses. They exclude defendants whose cases were handled by magistrate judges.

Prosecutions for drug, immigration and property offenses – the three most common categories of crime charged by the federal government – all have declined over the past five years. The Justice Department filed drug charges against 24,638 defendants in 2016, down 23% from 2011. It filed immigration charges against 20,762 defendants, down 26%. And it charged 10,712 people with property offenses such as fraud and embezzlement, a 39% decline.

However, prosecutions for other, less frequently charged crime types have increased slightly. For example, prosecutors charged 8,576 defendants with gun crimes in 2016, a 3% increase over 2011 (and a 9% single-year increase over 2015). And they charged 2,897 people with violent crimes such as murder, robbery and assault, a 4% increase from five years earlier.

Several factors may play a role in the decline in federal prosecutions in recent years. One notable shift came in 2013, when then-Attorney General Eric Holder directed federal prosecutors to ensure that each case they bring “serves a substantial federal interest.” In a speech announcing the policy change, Holder said prosecutors “cannot – and should not – bring every case or charge every defendant who stands accused of violating federal law.”

Sessions, who took office as attorney general in February, has indicated that the Justice Department will take a different approach under his leadership. In particular, he has pushed to increase prosecutions for drug- and gun-related offenses as part of a broader plan to reduce violent crime, which rose nationally in 2015 and in the first half of 2016, according to the FBI. (Despite these increases, violent crime remains far below the levels recorded in the 1990s.)...

Since 2001, the Justice Department’s prosecution priorities have changed. Immigration offenses, for instance, comprised just 15% of all prosecutions in 2001; by 2016, they accounted for 27%. During the same period, drug crimes fell from 38% to 32% of all prosecutions, while property crimes declined from 20% to 14%.

Such revisions by the Justice Department are not unusual. In 2013, for example, after two states legalized the recreational use of marijuana, the department announced new charging priorities for offenses involving the drug, which remains illegal under federal law. Federal marijuana prosecutions fell to 5,158 in 2016, down 39% from five years earlier.

March 29, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Friday, March 24, 2017

Former Penn State Prez convicted of single misdemeanor court of child endangerment for role in Sandusky sex offense scandal

As reported in this local article, "Graham B. Spanier, the former Pennsylvania State University president once considered one of the nation’s most prominent college leaders, was convicted Friday of endangering children by failing to act on signs that Jerry Sandusky was a serial sex predator." Here is more (with key sentencing factors highlighted):

After nearly 12 hours of deliberation, the jury of seven women and five men found Spanier guilty of a single misdemeanor count of endangerment. He was acquitted of a second endangerment count, as well as a felony count of conspiracy.

Still, the guilty verdict was a stunning blow to Spanier, 68, who had long proclaimed his innocence, and to his supporters, who had fiercely defended him and accused prosecutors of overreaching and unfairly staining the university. Many, including his wife, Sandra, a Penn State English professor, were in the Dauphin County Courtroom to hear the verdict. Spanier didn't appear to react when the verdict was read in a hushed courtroom.

Prosecutors said he agreed in 2001 with two Penn State administrators at the time, Athletic Director Tim Curley and Vice President Gary Schultz, not to report assistant coach Mike McQueary's claim that Sandusky was caught after hours with a young boy in a campus locker-room shower.

Pennsylvania Attorney General Josh Shapiro, who this year took over the office that spent had nearly a decade investigating and prosecuting the Sandusky case, said the verdict showed no one is above the law. "There are zero excuses when it comes to failing to report the abuse of children to authorities," he said.

Spanier's lawyer, Sam Silver, said they were heartened by the jury's acquittal on two counts and would appeal the guilty verdict on the third. That count had originally been a felony count, but jurors downgraded it to a misdemeanor.

Emails show that the three men knew Sandusky, a longtime assistant to head football coach Joe Paterno, had been investigated by university police after a similar claim in 1998. They first decided to report the 2001 incident to child-welfare authorites, but then changed that plan. Instead, they agreed to talk to Sandusky, bar him from bringing boys on campus, and share the report with the president of Second Mile, the charity Sandusky started for vulnerable children.

Sandusky sexually assaulted at least four more children after the 2001 incident, including another boy in a campus shower the next year, jurors were told. That victim was among the witnesses who testified this week. Both Schultz and Curley pleaded guilty and testified for the prosecution, although a deputy attorney general told jurors in her closing argument that they were not the government's star witnesses.

Spanier opted not to testify. His lawyers argued that the prosecution didn't present any evidence that Spanier knew Sandusky was a child sex abuser or that he knowingly conspired to cover up a crime. Spanier, who rose to national prominence as Penn State's leader for 16 years, has maintained that he acted appropriately in 2001 based on the information he had at the time. He contends he was told by his lieutenants that Sandusky's behavior with the boy in the shower amounted to "horseplay."

Followers of federal sentencing know that a jury's acquittal on some but not all counts may sometimes not be a huge sentencing benefit to defendants given that sentencing guideline recommendations can be based on acquitted and uncharged conduct established by merely a preponderance of the evidence.  But the impact of the split verdict in this high-profile state case is seemingly quite significant because the defendant is now only facing sentencing on a single misdemeanor count (which I presume means he could not get more than a year in jail).

I find it quite interesting (and somewhat curious) that a jury apparently has authority under Pennsylvania law to take a count that "had originally been a felony count" and decide it should be "downgraded to a misdemeanor."  This strikes me as fundamentally a sentencing decision being made by a jury, and as an interesting way for the jury in this particular case to send a (mixed) message about the defendant and his criminal activity.

March 24, 2017 in Celebrity sentencings, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Friday, March 17, 2017

"Good, Bad and Wrongful Juvenile Sex: Rethinking the Use of Statutory Rape Laws Against the Protected Class"

The title of this post is the title of this new article authored by Anna High that a helpful reader flagged for me. Here is the abstract:

This article considers the question of whether statutory rape laws can and should be used against members of the class they were designed to protect.  Many commentators have argued that meaningfully consensual sex among similarly situated and sufficiently mature teenagers should be beyond the scope of strict liability rape laws, but the question becomes more fraught in the context of the “contested outer limits” of adolescent sexuality — sexual contact among children and adolescents that offends social norms, leads to harmful outcomes or appears to be exploitative.  What are the implications of using statutory rape laws against minors to target “bad sex”?

I contend that even in relation to “bad sex,” there are serious policy and constitutional objections to the use of statutory rape laws against a member of the class they are designed to protect.  In jurisdictions without all-encompassing age-gap provisions, the response to sex among adolescents needs to be reformulated to ensure that the use of statutory rape laws against minors is confined to cases involving wrongful, as opposed to mere bad, sex, and is predicated on a clear and objective definition of exploitation, as opposed to mere fornication, as the punitive target.

March 17, 2017 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (13)

Taking a critical perspective on the work of former US Attorney for SDNY Preet Bharara

David Patton, executive director of the Federal Defenders of New York, penned this notable commentary for the Daily News concerning the work of fired SDNY US Attorney Preet Bharara.  The piece is headlined "An honest assessment of Preet Bharara's record: Harsh prosecutions put more African-Americans and Hispanics behind bars," and here are excerpts:

Last week the U.S. attorney for the Southern District of New York, Preet Bharara, was fired by President Trump, and the news media rushed to characterize his seven-year tenure.  Was he the "sheriff of Wall Street" for his insider trading prosecutions, a "showy pragmatist" for his affinity for television cameras, or the drainer of political swamps for his political corruption cases?  At least in part, he was surely all of those things.

But none of the tags do much to describe the actual work of his office and the overwhelming number of prosecutions it brings that have nothing to do with Wall Street or Albany.  Federal criminal cases rarely involve the rich or powerful.  Consistent with the rest of the country, 80% of federal defendants in the Southern District of New York are too poor to hire a lawyer.  Seventy percent are African-American or Hispanic.  The most commonly prosecuted offense type, by far, is drugs.

Last year, 45% of all federal criminal prosecutions in the Southern District were for drugs.  Two other leading offense types are firearms and immigration. The firearms cases are mostly gun possession cases transferred from state prosecutions in the Bronx.  They arise when NYPD officers search a car, apartment or person and claim they find a gun. Those arrested are plucked out of state court and brought to federal court for the express purpose of imposing lengthier sentences.  The immigration cases, so-called "illegal re-entry" cases, are prosecutions of people who were previously deported from the United States and came back.  Depending on their criminal history they typically face anywhere from two to seven years in prison before being removed from the United States again.

Bharara surely deserves credit for his efforts to clean up the financial industry and the political system.  But federal prosecutors should be judged primarily on how wisely, or not, they use the awesome power of their office to impose the many years of imprisonment on the thousands of people they choose to prosecute.  

And choose to prosecute they do. Unlike state and local prosecutors who largely react to police investigations and arrests, federal prosecutors have enormous discretion to decide who and what to prosecute.  Their jurisdictions are wide-ranging and overlapping, and many of the people they charge would otherwise be prosecuted in state court under less punitive laws.

Judging Bharara by those standards, his tenure was decidedly mixed.  His office greatly increased the prosecution of poor people of color using sprawling conspiracy and racketeering statutes to charge many low level drug dealers and addicts together with bigger players in the same indictments.  Some of the people charged were already serving time in state prisons for the same conduct.  Many others were caught up in "sting" operations in which the criminal conduct was initiated by agents and informants.

He also continued the programs begun by his predecessors in the Bush administration of prosecuting people for street crimes that were once considered the exclusive province of state courts.  Once again, those charges are brought almost entirely against poor people of color from the Bronx.  And across the board in drug and immigration cases, his office too often sought unnecessarily severe sentences....

When we evaluate the performance of top prosecutors, we should pay attention to whether they advance the goals of maintaining public safety while also reducing unnecessary and unequal terms of punishment.  And we should spend a lot less time concerned about how they handle the small sliver of cases that make the headlines.

March 17, 2017 in Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (3)

Monday, February 27, 2017

Ohio Secretary of State reports that 82 non-citizens have recently cast votes in Ohio

Because I continue to be intrigued by Prez Trump's claim that millions of persons committed a crime by voting illegally in our last election, I find interesting this new story about illegal voting in Ohio headlined "82 non-citizens voted in Ohio, Husted says." Here are the details:

Nearly 400 non-citizens are registered to vote in Ohio — 82 of whom have managed to cast ballots in at least one election since 2015, Secretary of State Jon Husted said Monday.  Husted, a Republican and likely candidate for Ohio governor, said his office discovered the 385 registrations from non-citizens on a biennial review of the state's voter database.  In total, 7.9 million people were registered to vote in Ohio as of the November election, so the non-citizens make up fewer than 1 in every 20,000 registered voters — far from the widespread voter fraud President Donald Trump has claimed.

Husted is sending law enforcement the names of the 82 non-citizens who voted, so officials can investigate and decide whether to prosecute. His office will send letters to the non-citizens who registered but never voted, requesting they cancel their registration. If they fail to do so, they could ultimately face prosecution. Election fraud can carry a fifth-degree felony charge in Ohio.

As Trump has alleged voter fraud in last year's election, Husted has countered that election fraud isn't a common problem. Still, his office has boasted of its three reviews of the voter rolls to look for non-citizens, the first such reviews conducted by an Ohio secretary of state. “In light of the national discussion about illegal voting it is important to inform our discussions with facts. The fact is voter fraud happens, it is rare and when it happens, we hold people accountable,” Husted said Monday in a statement.

Husted didn't say how which elections the 82 non-citizens had voted in, but even if they all voted in November 2016, they couldn't have swayed Ohio's presidential result, for instance.  Eighty-two votes would have amounted to 0.0015 percent of the state's November voters. None of the non-citizens cast a vote in a race that was tied or decided by one vote, Husted said....

The secretary of state's office began the biennial review in 2013. Reviews that year and in 2015 uncovered a total of 44 non-citizens who voted in an election.  Of those, eight people have been convicted of breaking the law and two other cases still are pending, spokesman Josh Eck said.

Trump continues to claim — without any evidence — that massive voter fraud marred the 2016 presidential election. On Jan. 23, the new president told congressional leaders between 3 million and 5 million illegal votes caused him to lose the popular vote to Democrat Hillary Clinton.  Trump won the election with a convincing victory in the Electoral College, even as Clinton won the popular vote by nearly 2.9 million votes. 

If the Ohio story is reasonably representative of the national story (as is often the case with bellwether Ohio), then we might reasonably suspect that there may have been between 3 thousand and 5 thousand illegal votes case in the 2016 election.  Whether or not Ohio is representative of other states in this particular context, I am quite pleased to learn that the crime of voter fraud is not rampant in the great state of Ohio.

February 27, 2017 in Criminal justice in the Trump Administration, Offense Characteristics | Permalink | Comments (28)

Will a Justice Gorsuch be a strong SCOTUS voice against over-criminalization?

The question in the title of this post is prompted by this recent National Review commentary authored by C. Jarrett Dieterle and headlined "Gorsuch v. Over-Criminalization." Here are excerpts:

Much of the media attention to date surrounding President Trump’s Supreme Court nominee Neil Gorsuch has centered on the judge’s views of originalism, separation of powers, administrative law, and related topics. Largely overlooked has been an area where Judge Gorsuch’s track record shows a keen awareness of another issue critical to the federal courts: America’s criminal-justice system.
The importance of criminal law is underscored by the breathtaking size of the federal criminal code. Nearly 5,000 federal crimes are on the books, not including the sort of regulatory crimes that likely push the number above 300,000. Worse yet, many criminal laws are written in vague terms that fail to clearly identify what constitutes a crime, leaving Americans in the dark about whether their conduct in many cases is criminal.
In a 2013 lecture for the Federalist Society, Gorsuch confronted the problem of over-criminalization, whereby criminal laws target conduct that is not inherently wrong. Using examples of obscure crimes, such as ripping off a mattress tag, Gorsuch argued that no American can possibly comprehend all the activities prohibited by federal law. “Without written laws, we lack fair notice of the rules we must obey,” as he puts it, adding that fair notice is also lacking when we have “too many written laws.”...

Gorsuch’s expressions of concern about over-criminalization haven’t been confined to speeches.  In last year’s Caring Hearts Home Services v. Burwell decision, he had harsh words for a federal agency that forgot its own regulations and misapplied them to a home health-care provider....

Gorsuch has equally strong views on the issue of criminal intent. Under traditional common law, acting with mens rea (a guilty or criminal mind) is a core component of committing a crime. This understanding prevents individuals who inadvertently or accidently do something wrong from being branded criminals....

Gorsuch also has shown willingness to rely on another historical judicial doctrine, the “Rule of Lenity”: Courts that confront ambiguous and vague criminal statutes are urged to interpret those laws in favor of defendants. Gorsuch applied this rule — also a favorite of the late Justice Antonin Scalia — in United States v. Rentz (2015), a case involving a law that imposed heightened penalties on individuals who “use” a gun to commit a violent crime or drug offense.... “Our job is always in the first instance to follow Congress’s directions,” Gorsuch wrote. “But if those directions are unclear, the tie goes to the presumptively free citizen and not the prosecutor.”

Gorsuch’s principle that any “tie” should go to citizens over the government shows his wariness of the vast powers possessed by prosecutors in an over-criminalized society. His tendency to view criminal laws, especially vague ones, with a healthy measure of skepticism should give opponents of over-criminalization a much-needed ally on the nation’s highest court.

February 27, 2017 in Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Thursday, February 16, 2017

"Accounting for Violence: How to Increase Safety and Break Our Failed Reliance on Mass Incarceration"

The title of this post is the title of this notable new report from the Vera Institute of Justice authored by Danielle Sered. Here is an overview of the report from Vera:

In the United States, violence and mass incarceration are deeply entwined, though evidence shows that both can decrease at the same time.  A new vision is needed to meaningfully address violence and reduce the use of incarceration — and to promote healing among crime survivors and improve public safety.  This report describes four principles to guide policies and practices that aim to reduce violence: They should be survivor-centered, based on accountability, safety-driven, and racially equitable.

This two-page fact sheet sets out the "four principles" referenced above:

Principle 1: Responses to violence should be survivor-centered.

Principle 2: Responses to violence should be based on accountability.

Principle 3: Responses to violence should be safety‑driven.

Principle 4: Responses to violence should be racially equitable.

February 16, 2017 in Offense Characteristics, Scope of Imprisonment | Permalink | Comments (16)

Wednesday, February 15, 2017

Repeat rape and murder for sex offender subject to monitoring shows limits of GPS as incapacitation tool

This article in my local paper about a local murder that has received a lot of attention provides a cold reminder that GPS monitoring typically cannot and will not alone serves as fool-proof crime prevention tool.  The article is headlined "Ex-convict charged in slaying of Ohio State student was on GPS monitoring," and here are the details:

A sex offender who is accused of abducting, raping and killing an Ohio State University student was on GPS monitoring. Brian L. Golsby, 29, who was released from state prison on Nov. 13 after serving six years for robbery and attempted rape, had special conditions of supervision under his post-release control for five years.

"I can confirm that he was on GPS monitoring, which is not uncommon due to the fact that he did not have a permanent residence upon his release," said JoEllen Smith, a spokeswoman for the Ohio Department of Rehabilitation and Correction. Golsby was living in a state-contracted residential housing program that granted him a temporary residence.

Grove City police arrested Golsby after 21-year-old Reagan Tokes' body was found on Feb. 9 near the entrance of Scioto Grove Metro Park. Detectives say Golsby abducted Tokes after she left work Feb. 8 in the Short North.  He forced her to withdraw $60 from an ATM, raped her and fatally shot her twice in the head before dumping her body. Investigators already had Golsby's DNA from prior offenses and matched it to a cigarette butt left in Tokes' car. Tokes was set to graduate from OSU in May with a degree in psychology.

Smith said state law prevents her from going into details of the conditions Golsby had to follow.  All offenders are prohibited from carrying guns, but it's unclear whether travel restrictions were placed on Golsby in addition to what sex offenders have to abide by.  "DRC contracts with community providers for electronic monitoring and GPS services. The level of monitoring depends on the offender and circumstances for which the service is requested," Smith said.

She would not specify which vendors are used or describe the level of monitoring that offenders like Golsby could have. It's unclear whether he triggered an alert while wearing the bracelet, or, if he had discarded the monitor, how parole officers would have been notified. It's also unknown how often parole officers check the movements of offenders assigned to them, or how far back the monitor records travel. "DRC is not providing specifics relative to this case due to the ongoing criminal investigation," Smith said.

Columbus police have been looking at Golsby as a possible suspect in a series of attacks on women in German Village and near Nationwide Children's Hospital.

February 15, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (28)

Tuesday, February 14, 2017

Hard-to-believe harshness in prosecution of Virginia teen receiving underage pics

This new Reason piece by Lenore Skenazy tell a tale about a teenager in Virginia prosecuted for a sex offense that seem truly hard to believe. The piece is fully headlined "Teen Girl Sent Teen Boy 5 Inappropriate Pictures. He Faced Lifetime Registry as a 'Violent Sex Offender' or 350 Years in Jail. Welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders." And here is the story:

Zachary, now 19, is in jail awaiting sentencing for five pictures his teenage girlfriend sent him of herself in her underwear.  He faced a choice between a possible (though unlikely) maximum sentence of 350 years in prison, or lifetime on the sex offender registry as a "sexually violent offender" — even though he never met the girl in person. Here's what happened.

About two years ago, when Zachary was a 17-year-old high school senior in Stafford County, Virginia, a girl in his computer club invited him over to visit.  She introduced him to her younger sister, age 13.  This younger sister told Zachary he reminded her of a friend: this friend, also a 13-year-old girl, shared Zachary's love of dragons and videogames.

The two 13-year-olds started skyping Zachary together.  Eventually Zachary and the dragon-lover struck up a online friendship, which developed into a online romance.  By the summer, a month after Zachary turned 18, the girl sent him five pictures of herself in her underwear.  Her face was not visible, nor were her private parts.

That's according to information provided by Zachary's parents, as well as an evaluation with Zachary conducted by a psychologist.  Zachary is incredibly smart, according to the psychologist, though socially awkward and emotionally immature.  Importantly, he does not possess "distorted" ideas about sex, according to the psychologist.

Even so, Zachary was arrested and charged with 20 felonies, including indecent liberties with a minor, using a computer to propose sex, and "child porn reproduce/transmit/sell," even though he did not send or sell the pictures to anyone.  All this, from five underwear pictures.  If convicted, Zachary's father told me, he faced a theoretically possible maximum sentence of 350 years.

Instead, he took a plea bargain.  This is what prosecutors do: scare defendants into a deal.  Zachary agreed to plead guilty to two counts of "indecent liberties with a minor." For this, he will be registered as a violent sex offender for the rest of his life. Yes, "violent" — even though he never met the girl in person.

Zachary's dad wrote to the authorities asking about this, and got a letter back from the Virginia State Police reiterating that, "This conviction requires Zachary to register as a sexually violent offender."  The letter, which was obtained by Reason, added that in three years, "a violent sex offender or murderer" can petition to register less frequently than every three months.  "How do you like that?" said the dad in a phone conversation with me. "Same category as a murderer."

As part of the plea, Zachary also agreed never to appeal. He will be sentenced on March 9. Until then, he remains in jail. If this sounds like a punishment wildly out of whack with the crime, welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders. The girl did not wish to prosecute Zachary, according to his dad. He told me the pictures came to light because she had been having emotional issues, possibly due to her parents' impending divorce.  Eventually she was admitted to a mental health facility for treatment, and while there she revealed the relationship to a counselor.  The counselor reported this to her mother, the police, or both (this part is unclear), leading the cops to execute a search warrant of Zachary's electronic devices where they found the five photos and the chat logs....

Outraged readers should root for two things. First, that this case prompts the Virginia legislature to review the laws that enable draconian persecutions like the one against Zachary.

Second, that Zachary be given a punishment that truly fits the crime. If you recall the case of another Zach — Zach Anderson, a 19-year-old who had sex with a girl he honestly believed was 17 (because she said so) but was actually 14 — he was originally sentenced to 25 years on the sex offender registry.  But after public outcry, he got two years' probation instead, on a "diversion program." A program like this is sometimes available for first-time offenders. It sounds far more reasonable. Or maybe Zachary could do some community service — like speaking at high school assemblies to warn students that what seems like consensual teenage shenanigans could land them on the registry for the rest of their lives.

I have no basis to question the basic account of this case, but I cannot help but think there is more to this story given that the defendant he was charged with 20 felonies. I do not know Virginia law well, but really wonder just how five texted pics alone could provide the foundation for charging 20 felonies.

UPDATE:  A helpful reader alerted me to this local article from last month with suggests that part of the crimes of the defendant here included trying to arranging a meeting for sex with the underage girl discussed above.  This addition aspect of the story makes it a little easier to believe and understand, though it does not undercut the apparent reality that prosecutors here took a remarkably aggressive posture in a case involving essentially teen sexting.

February 14, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (20)

"Maryland prosecutor sentenced for hotel sex acts in front of glass door in Ocean City"

The title of this post is the headline of this Washington Post article, which sort of has a Valentine's Day theme.  I recommend the article if full in order to get the "full monty" details, but here are highlights from the start of the article and its update:

It’s Valentine’s Day, and the top prosecutor in Cecil County, Md., having already celebrated his love with his wife in full view of numerous others, will stand before a judge today and receive a criminal sentence for such public displays of affection.

Edward “Ellis” Rollins III (R) was arrested in June for indecent exposure and disorderly conduct, for having sex, standing naked and other related acts at the sliding glass door of his tenth-floor Ocean City, Md., hotel room, while four tourists, a security officer and two Ocean City police officers watched.  He was convicted by a Worcester County, Md., jury after a two-day trial in December. Rollins, 61, likely will not face jail time for the two misdemeanor convictions.... He did remove himself from consideration for a circuit court judgeship, which he was scheduled to interview for with the governor shortly after his arrest, on a bench where both his father and grandfather served.

Rollins did not return phone and email messages Monday, and his attorney, Cullen Burke, also did not return a call.  At trial, Rollins did not testify, but his lawyer did not deny that Rollins and his wife enjoyed various carnal relations next to the sliding glass door of their hotel room.  Burke described Rollins and his wife, Holly Rollins, as “still newlyweds” after six years of marriage, according to the Cecil Whig, and Holly Rollins testified she had no idea anyone was watching from the adjacent condominiums. Burke said there was 172 feet between the two buildings and that the Rollins’ hotel room “was a speck” in the vision of the tourists’ apartment.

But the four Pennsylvania women who spotted the activity, on two different days, felt it was much more visible than a speck. They returned to Ocean City and testified in detail about Rollins’ actions. It really wasn’t the sex so much as Rollins’ naked dancing and posing at the sliding glass door that truly offended the visitors, according to the media reports of their testimony. “You’re just sickening,” one woman turned and said to Rollins during her testimony. “I have nightmares because of you. I argue with my husband because it’s all I can talk about.”

UPDATE, 2:02 p.m.: Worcester County Circuit Judge Brian Shockley imposed a $1,000 fine and a 90-day jail sentence with all time suspended for Ellis Rollins, along with 100 hours of community service, 18 months of supervised probation and mental health treatment.  Worcester County State’s Attorney said he asked for a two-year sentence with 18 months suspended, which would have meant Rollins would have spent six months in the Worcester jail, but Shockley did not take that recommendation.

February 14, 2017 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (5)

Monday, February 13, 2017

Major Ponzi schemer gets major break from guidelines ... but still subject to major prison time

This local article, headlined "Lexington Ponzi scheme founder, 70, gets nearly 15-year prison term for ZeekRewards," reports on a notable white-collar sentence handed down this morning in a North Carolina federal courthouse.  Here are some details:

A federal judge Monday handed Paul Burks, founder of ZeekRewards.com, a prison sentence of 14 years and eight months for his lead role in the Lexington Ponzi scheme. Judge Max Cogburn Jr. agreed with U.S. attorneys' "fair and generous" sentencing recommendation, a minimum 15 years and eight months and a maximum 19 years and seven months for the 70-year-old Burks.  Burks could have been sentenced to up to 59 years under federal sentencing guidelines.

ZeekRewards.com, founded in 2010, was one of the largest Ponzi schemes in U.S. history at $939 million, according to federal regulatory officials and prosecutors.  The Lexington companies, which debuted in January 2011, were shut down and their assets frozen in August 2012. There were more than 800,000 victims worldwide.

Cogburn dropped Burks' sentencing by a year so that it would be about double the 90-month prison term handed to Dawn Wright-Olivares. Wright-Olivares and her stepson, Daniel Olivares, pleaded guilty in February 2014 to fraud charges after reaching agreements in December 2013 with the U.S. Attorney’s Office for the Western District of N.C. Wright-Olivares cooperated with the federal government in its case against Burks.  Wright-Olivares served as ZeekRewards' chief operating officer, while Olivares was senior technology officer. Olivares received a two-year prison term.

On July 21, a federal jury found Burks, of Lexington, guilty of wire and mail-fraud conspiracy, wire fraud, mail fraud and tax-fraud conspiracy. Burks has been free on bond for the past 4 ½ years.  The wire and mail-fraud conspiracy charge, the mail-fraud charge and the wire-fraud charge each carry a maximum prison term of 20 years and a $250,000 fine.  The tax-fraud conspiracy charge carries a maximum prison term of five years and a $250,000 fine.

Burks opted not to speak on his behalf except to say he approved of the case being presented by his attorney, Noell Tin.... U.S. attorneys, citing Burks’ health and his role as caregiver to his wife, Susan, who has breast cancer, recommended 15.5 years to just short of 20 years. Tin asked Cogburn to set a sentence of no more than 11.5 years, also in consideration for the Burks’ health.

Cogburn and Kenneth Bell, the receiver for ZeekRewards, responded to Tin’s request by saying the U.S. attorneys’ sentencing recommendation was “fair and generous” given the level of crime involved in the Ponzi scheme. “This is a huge amount of money, which is why the sentencing guidelines run to such a large extent,” Cogburn said. “He is essentially facing a life sentencing given his health conditions.”

Tin said that among the health issues affecting Burks are hypertension, diabetes, heart illness, chronic renal failure, prostate cancer, the removal of his esophagus and mild dementia. Burks appeared in good health at the sentencing, though he walked with a slight limp.... The likely [prison] facility [for Burks] could be Butner, where fellow Ponzi scheme felony Bernie Madoff resides....

Cogburn and Bell cited the enormity of the Ponzi scheme and how Burks and other ZeekRewards officials misled and mispresented how the company generated money and how it paid “winners.” Cogburn compared Burks’ marketing strategy of capturing hundreds of millions of dollars to the Biblical story of Jesus of turning loaves and fishes into enough food to feed at least 5,000 individuals. “The scheme got out of hand, more than Mr. Burks may have thought was going to happen,” Cogburn said. “But anyone could have seen what was going to occur outside himself and his (marketing) cheerleaders.”

February 13, 2017 in Booker in district courts, Offense Characteristics, White-collar sentencing | Permalink | Comments (2)

Saturday, February 11, 2017

A (crazy) harsh sentence for a voter fraud conviction in Texas

According to Prez Trump, voter fraud may be one of the most prevalent federal crimes in the United States (perhaps second only to marijuana use).  In light of the President's claims in this regard, I have to think the crazy harsh sentence imposed by a state court in Texas reported in this New York Times article is intended to try to deter this rampant crime.  The lengthy front-page NYT article is headlined "Illegal Voting Gets Texas Woman 8 Years in Prison, and Certain Deportation," and here are the interesting details:

Despite repeated statements by Republican political leaders that American elections are rife with illegal voting, credible reports of fraud have been hard to find and convictions rarer still.

That may help explain the unusually heavy penalty imposed on Rosa Maria Ortega, 37, a permanent resident and a mother of four who lives outside Dallas. On Thursday, a Fort Worth judge sentenced her to eight years in prison — and almost certainly deportation later — after she voted illegally in elections in 2012 and 2014.

The sentence for Ms. Ortega, who was brought to this country by her mother as an infant, “shows how serious Texas is about keeping its elections secure,” Ken Paxton, the Texas attorney general, said in a statement. Her lawyer called it an egregious overreaction, made to score political points, against someone who wrongly believed she was eligible to vote.

“She has a sixth-grade education. She didn’t know she wasn’t legal,” said Ms. Ortega’s lawyer, Clark Birdsall, who once oversaw voter fraud prosecutions in neighboring Dallas County. “She can own property; she can serve in the military; she can get a job; she can pay taxes. But she can’t vote, and she didn’t know that.”

The punishment was strikingly harsh for an offense that usually merits far less jail time, if any. A second fraudulent ballot case in metropolitan Fort Worth ended in 2015 with probation. Ms. Ortega insisted in court that she had been unaware that she was ineligible to vote and was confused by registration forms and explanations by election officials.

Prosecutors for Mr. Paxton and Tarrant County said that she had lied and that the same forms and conversations proved it. A jury convicted her Wednesday of two felony charges. Mr. Birdsall said Mr. Paxton’s office had been prepared to dismiss all charges against Ms. Ortega if she agreed to testify on voting procedures before the Texas Legislature. But the Tarrant County criminal district attorney, Sharen Wilson, vetoed that deal, he said, insisting on a trial that would showcase her office’s efforts to crack down on election fraud.

Both the attorney general’s office and the county prosecutor declined to comment on the specifics of Mr. Birdsall’s statement, citing privacy rules for plea-bargain negotiations. A spokeswoman for Ms. Wilson, Sam Jordan, said any negotiations were only “discussions,” a description Mr. Birdsall disputed....

Ms. Ortega’s case is unusual not just for its harshness but for its circumstances. Many fraud convictions that draw prison sentences — and some that do not — involve clear efforts to influence election results. Texas prosecutors won prison sentences for four men who moved into a hotel in 2010 to claim residency so they could sway a local election. A woman in Brownsville, Tex., was placed on five years’ probation for casting five absentee ballots under different names in elections in 2012.

Lawyers offered no clear motive for Ms. Ortega’s decision to cast ballots beyond her desire to participate in elections. Ms. Ortega, a native of Monterrey, Mexico, came to Texas with her mother when she was an infant. More than a decade later, the family was scattered after the mother was arrested and deported. Two brothers born in Dallas automatically gained citizenship; Ms. Ortega became a permanent resident and gained a green card, her brother Tony Ortega, 35, said in an interview.

As a Dallas County resident, she registered to vote and later cast ballots in elections in 2012 and 2014, her lawyer, Mr. Birdsall, said. While that was illegal, there was no attempt to break the law, he maintained: Some government forms allow applicants to declare that they are permanent residents, but the voting registration form asks only whether an applicant is a citizen. Lacking the permanent resident option, he said, she ticked the “citizen” box. When the county later mailed her a registration card, he said, she believed she “was good to go.”

Ms. Ortega moved to neighboring Tarrant County and again registered, but this time checked a box affirming that she was not a citizen. When her application was rejected in March 2015, the trial showed, she called election officials and told them that she had previously voted in Dallas County without difficulty. Told that she could not vote unless she was a citizen, she asked for another application, and returned it with a check in the box affirming citizenship. That raised questions, and law enforcement officials arrested her on fraud charges.

Jonathan White, an assistant attorney general who helped prosecute the Ortega case with Tarrant County officials, said the evidence of fraud was unambiguous. “She told the elections office she was a citizen,” he said. “She told everyone else she wasn’t,” including a recorded statement to prosecutors in which she said she was a citizen of Mexico.

Mr. Birdsall said the arrest and prosecution are punishing a woman for her own confusion over whether residency and citizenship confer the same rights. “She wasn’t trying to topple the country,” he said. “She was trying to make more serious decisions about our country than the 50 percent of the people who didn’t bother to vote in the last election.”...

Ms. Ortega is now in a Fort Worth jail awaiting transfer to a state prison. Her four children, ages 13 to 16, are being cared for by siblings and her fiancé, Oscar Sherman, 27, a trucker who said her arrest had scotched their plans to marry. The children’s fate is unclear. Mr. Sherman lacks legal custody; her siblings are still debating their options.

Ms. Ortega’s future is bleak. The federal government frowns on giving green cards to felons. “She’ll do eight years in a Texas prison,” Mr. Birdsall said. “And then she’ll be deported, and wake up blinking and scratching in a country she doesn’t know.”

Far-right websites have seized on Ms. Ortega’s conviction as proof that Mr. Trump is right about rampant fraud and efforts by Democrats to steal the November election. There is, however, at least one flaw in that story: Ms. Ortega was a registered Republican. “She voted for Mitt Romney over Barack Obama in the 2012 election. In 2014 she voted for our current attorney general, Ken Paxton,” Mr. Birdsall said. “And guess what? He’s the one responsible for prosecuting her.”

February 11, 2017 in Examples of "over-punishment", Offender Characteristics, Offense Characteristics | Permalink | Comments (30)

Monday, February 06, 2017

"A Theory of Differential Punishment"

The title of this post is the title of this notable new paper authored by John Boeglin and Zachary Shapiro now available via SSRN. Here is the abstract:

A puzzle pervades the criminal law: Why is it that two offenders who behave identically are sentenced differently when one of them, due to circumstances beyond her control, causes a harmful result? Through first proposing a novel deconstruction of this question by separating theories of punishment into two broad categories (namely, offender-facing and victim-facing justifications for punishment), the Article demonstrates that results-based “differential punishment” in the criminal law can only be justified, if at all, by victim-facing theories.

The Article then makes its central claim: while victim-facing theories may be capable of justifying results-based punishment in respect to many types of offenses, there are three distinct classes of offenses for which everyone should agree that differential punishment is unjustified.  We conclude by showing how applying our framework would reduce the unnecessary incarceration of a significant class of criminal offenders, without sacrificing any legitimate goals of the criminal justice system.

February 6, 2017 in Offense Characteristics, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (5)

The hardest of cases for death penalty abolitionists: convicted murderer who keeps murdering while in prison

This local news report of an apparent murder by an Ohio inmate already convicted in two other murders serves as a reminder that there are limits on how much you can incapacitate some persons who seem intent on being violent.  The article is headlined "Two-time murderer suspected of killing another inmate, " and here are the ugly details:

A two-time murderer is suspected of killing another inmate, a Franklin County man, aboard a prison transport bus while it traveled south on Rt. 23 from Columbus on Wednesday evening.  The body of David L. Johnson, 61, was found in the Ohio Department of Rehabilitation and Correction bus on Thursday evening when it stopped to deliver him to the Ross Correctional Institution, said Ross County Prosecutor Matthew Schmidt.

Johnson, who was serving an eight-year sentence for sexual battery, apparently was strangled; Casey Pigge, 28, is "absolutely the suspect" in the death, Schmidt said. Other inmates also were locked into a caged section of the bus with Johnson and Pigge, but apparently did not alert the guards and driver at the front of the bus of the assault, Schmidt said. The guards apparently cannot see back into all sections of the bus, he said.  The inmates were wearing handcuffs, and perhaps belly chains, but could move around, the prosecutor said.

Inmates, including from the Southern Ohio Correctional Facility near Lucasville and the Ross Correctional Institution near Chillicothe, were taken aboard the bus to Columbus for medical treatment on Thursday and were on the return leg of the trip south when the apparent slaying occurred.

Pigge is serving a 30-year to life sentence at the Lucasville prison for the 2008 murder of Rhonda Sommers, 52, the mother of his then-girlfriend. Pigge was convicted of stabbing the woman and then setting her apartment on fire.  Last week, Pigge pleaded guilty to using a cement block last year to repeatedly strike to kill his cellmate, Luther Wade, 26, of Springfield, at the Lebanon Correctional Institution in Warren County. Wade, serving a 10-year sentence for aggravated burglary, was repeatedly struck in the head. Pigge faces another life sentence in the slaying.

Schmidt... questioned Pigge having access to other inmates aboard the bus given his history of violence. Investigators are working to determine if Johnson died in Franklin County, Pickaway County or Ross Country as the bus traveled south, Schmidt said. "He crushed his cellmate's head with a cinder block. You would think the sensible thing to do would be to make sure he doesn't have free access to other inmates at any time.  Apparently that is not an issue for the folks at DRC," Schmidt said.

Given that Pigge is seemingly due to get an LWOP sentence for previously having "crushed his cellmate's head with a cinder block," he would be essentially getting a "free" murder if he were not at least potentially subject to something worse than LWOP for his latest murder.  Moreover, given than Pigge has now slaughtered two fellow inmates during his first decade of incarceration, the only real public safety options for him would seem to be long-term solitary confinement or the death penalty. 

I am not asserting that folks like Pigge make the death penalty a must, but I am saying that it seems quite difficult to figure out what a just and effective punishment is for a murderer who seems keen and able to keep killing even while incarcerated.

February 6, 2017 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (8)

"Why we should free violent criminals"

The title of this post is the headline of this Boston Globe commentary authored by By David Scharfenberg. Here are excerpts:

The drug war, [some experts] say, is not the major force behind America’s huge prison growth over the last several decades. In fact, less than 20 percent of the country’s 1.5 million prisoners are serving time for such offenses. Free them all tomorrow, and the United States would still have the largest prison population in the world — larger than Russia, Mexico, and Iran combined.

Violent crime is a much more important driver, with almost half of prisoners doing time for offenses like murder and robbery. To make a real dent in mass incarceration, experts say, the country will have to do the difficult work of freeing more of these criminals sooner. “We put all of our attention — almost all of our attention — on things that aren’t nearly as important as the things we ignore,” says Fordham Law School professor John Pfaff, author of the forthcoming book “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.”

Pfaff says the criminal justice reform movement had to start with talk of greater leniency for nonviolent offenders.  It couldn’t leap right to a discussion of, say, cutting murderers’ sentences down to a European-style 10 years. But now, he says, it’s time for something more. Not all “violent crime” is as serious as the phrase would imply. In some states, burglarizing a house when no one is home is considered a violent offense. And what about the 18-year-old robber who was carrying a gun but didn’t actually use it?

As for long sentences, it’s true that they play a role in driving prison growth.  “Three strikes” laws, mandatory minimums, and other tough-on-crime measures have increased time served for all kinds of offenders — pot dealers and violent criminals alike.  A Pew analysis of state prison data showed that prisoners released in 2009 served 36 percent longer than those who were released in 1990.

But at three years, the average prison term is shorter than the conventional wisdom would suggest. Pfaff argues that the real concern is not sentence length, but serving any time in prison at all. Whether you serve 12 or 16 months, he says, the impact is the same. Upon release, convicted felons have a hard time getting decent jobs or good housing. And with the odds heavily stacked against them, they’re more likely to reoffend.

The criminal justice reform movement, Pfaff argues, needs a reorientation — and a willingness to show mercy for prisoners beyond the proverbial nonviolent drug offender.  That means diverting more people — whatever their offenses — away from the system, thereby sparing them from a criminal record. And there’s only one way to do that, he says: Change the behavior of the most powerful actor in the criminal justice system, the prosecutor....

Over the last couple of decades, Pfaff’s research shows, they’ve become ever-more aggressive about seeking jail time. In the mid-’90s, prosecutors filed felony charges against about one in three arrestees.  By 2008, it was more like two in three. Why are prosecutors getting more aggressive? Maybe because they’re more politically ambitious, Pfaff theorizes. They may think a tough-on-crime record can be parlayed into a run for higher office. Or maybe the police are developing stronger cases, using more surveillance-camera footage, for example.

Whatever the cause, the impact has been enormous.  The push to file more felony charges, Pfaff writes in his forthcoming book, is the single most important factor in the growth in prison admissions since crime started dropping in the early-’90s.  One solution: legislate a reduction in prosecutorial power.  Pfaff suggests creating detailed charging guidelines that would force prosecutors to steer more offenders away from the prison system.

Getting that sort of thing on the books will be difficult though; prosecutors have substantial clout in state legislatures and don’t want to see their power diminished . Which is why advocates may have better luck urging district and state attorneys’ offices to change from within and produce more flexible prosecutors.

February 6, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9)

Friday, February 03, 2017

Oklahoma Governor's task force urging significant sentencing reform to deal with surging prison population

As reported in this lengthy local article, "faced with a rapidly growing prison population in a state with the second-highest incarceration rate in the nation, a task force created by Oklahoma Gov. Mary Fallin issued a report Thursday calling for dramatic decreases in sentences for nonviolent drug dealers and manufacturers." Here is more:

Without reform, Oklahoma is on pace to add 7,218 inmates over the next 10 years, requiring three new prisons and costing the state an additional $1.9 billion in capital expenditures and operating costs, the report said. But task members said those costs can be averted and the prison population can be reduced 7 percent over the next decade through a combination of sentence reductions and other reforms, including increased funding for alternative mental health and substance abuse treatment programs.

Oklahoma currently has 61,385 individuals in its overcrowded prison system. That includes 26,581 incarcerated in state facilities and private prisons, 1,643 awaiting transfer from county jails and 33,161 on some form of probation, parole, community sentencing or GPS monitoring, said Terri Watkins, spokeswoman for the Department of Corrections.

Oklahoma's prison population, which is at 109 percent of capacity, has grown 9 percent in the past five years and is now 78 percent higher than the national average. Only Louisiana has a higher rate, the report said.

Oklahoma's female incarceration rate remains the highest in the nation, a distinction the state has held for 25 years, task members said. The state's female population grew 30 percent between 2011 and 2016 and Oklahoma now incarcerates women at a rate more than 2 1/2 times the national average.

In a 38-page report that contains 27 recommendations, the governor's task force on justice reform recommends a number of dramatic changes to stave off a looming state financial crisis, including sharply reducing sentences for nonviolent drug dealers and manufacturers. The report also calls for sweeping changes in the parole system, including allowing many inmates to become eligible for parole after serving a fourth of their sentences. Currently, inmates typically serve about a third of their sentences before becoming eligible for parole for most nonviolent crimes.

Many of the task force's recommendations would require legislative action. The task force is recommending that the penalty for possession of methamphetamine, heroin or crack cocaine with intent to distribute be lowered to zero to five years for nonviolent first-time felony drug offenders, said Jennifer Chance, the governor's general counsel and a member of the task force. It is recommending that the penalty for manufacturing be lowered to zero to eight years.

Possession of methamphetamine with intent to distribute currently carries a sentence of two years to life in prison for a first-time felony drug conviction, while possession of crack cocaine with intent to distribute carries a term of five years to life and heroin seven years to life.

Oklahoma's criminal justice system has exacerbated the state's prison crowding crisis by repeatedly sentencing more nonviolent offenders — particularly drug offenders — to longer terms than neighboring states like Texas and Missouri, the report says. Many states have been far ahead of Oklahoma in reforming their justice systems, the task force found. "Since 2010, 31 states across the country have decreased imprisonment rates while reducing crime rates," the report states.

Reducing Oklahoma prison sentences for nonviolent drug crimes is critical to reversing those trends because nearly a third of all Oklahoma prison admissions are for drug crimes and those prison sentences are often lengthy, the task force said.

Chance said most of the 21 task force members were in agreement with the group's findings, but acknowledged that the two district attorneys on the panel, David Prater and Mike Fields, have strong disagreements with some of the report's recommendations. Prater is the chief prosecutor for Oklahoma County, while Fields is the chief prosecutor for Canadian, Garfield, Blaine, Grant and Kingfisher counties and president of the Oklahoma District Attorneys Association....

If the state cuts prison sentences for drug manufacturing, distributing and trafficking without dramatically increasing funding for drug addiction treatment programs, Prater predicted it will lead to more home and auto break-ins and other crimes. "This is such a dishonest report," Prater said. "It's going to make Oklahoma a much more dangerous place."

Prater said the report's backers like to point to Texas as a state that has simultaneously reduced its incarceration and crime rates through similar justice reforms, but he noted that Texas appropriated $241 million up front in 2007 to pay for a package of prison alternatives that included more intermediate sanctions and substance abuse treatment beds, drug courts and mental illness treatment slots. Unless Oklahoma dramatically increases upfront funding for substance abuse treatment and parole supervision programs, the state's experience is more likely to parallel that of Utah, Prater said.

That state drastically cut sentences without providing sufficient funding for community programs and police officers and judges there have complained about offenders repeatedly being released out on the street with little or no supervision, he said.  Critics of Utah's reform efforts have cited the January 2016 slaying of Unified police officer Doug Barney as a reason for re-evaluating changes that were made. Barney's shooter, Corey Henderson, went through the revolving door of prison and many have argued he shouldn't have been out of jail when Barney was killed....

The Oklahoma Attorney General's Office was noncommittal about the report.  “The Attorney General's Office was invited to take part in the Oklahoma Justice Reform Task Force, and members of our team were in attendance," Lincoln Ferguson, spokesman for Atty. Gen. Scott Pruitt, said in a prepared statement.  "The AG's office takes no position on the merits or demerits of the proposal.”

The full report is an interesting read and is available here at this link.

February 3, 2017 in Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Wednesday, February 01, 2017

"Say no to restorative justice for sex offenders"

The title of this post is the headline of this notable commentary published in The Hill authored by Michael Dolce.  Here are some of the details:

The debate around the Senate’s possible confirmation of Betsy DeVos, President-elect Trump’s nominee for Education Secretary, should kick start a national discussion on how colleges and universities handle sexual assault.  Recently, much of that conversation has revolved around “restorative justice,” programs that aim to respond to misconduct or crime by redressing the harm inflicted on victims and the community, rather than simply punishing offenders.

As a victim of childhood sexual abuse myself and an attorney who now represents sexual assault survivors every day, I can say without doubt that restorative justice is not only horribly insufficient for handling sexual abuse but, in many cases, actually serves to leave an offender free to offend again.

Whether as an alternative or a supplement to traditional discipline, restorative justice programs require offenders to make amends with victims — often with apologies and mediation — and participate in reformative programs like anger management or cultural sensitivity training, measures rarely imposed by the criminal justice system.  In an education setting, employing these programs for offenses like racial harassment and alcohol misuse have had some success, leading to understandable calls from some criminal justice reform advocates and college administrators to expand their use to college sexual misconduct cases.

It’s true that our colleges and universities routinely fail victims of sexual assault, as last year’s abhorrent handling of the Brock Turner case at Stanford University reminded us.  It’s also true, as the Chicago Tribune reported late last month, that the future of campus sex assault investigations under President Trump are “uncertain,” particularly since GOP convention platform calls for a reduced federal government role in investigations of campus sexual assault.

But, for several important reasons, restorative justice is not the answer for handling sex offenders. First, this method only works if offenders feel empathy when confronted with the impact of their misconduct.

According to prominent forensic psychology researchers Drs. Daryl Kroner and Adelle Forth, about half of convicted sex offenders exhibit psychopathology, meaning they are incapable of feeling remorse or empathizing with their victims. Sex offenders are often skilled at manipulating others into believing they are safe, which helps them gain their victims’ trust before attacking....

Second, advocates for restorative justice programs in this context often make the flawed assumption that sex offenders are similar to repeat offenders of other habitual offenses like drunk driving. But while underage drinking and alcohol abuse are certainly a common problem on university campuses, alcohol does not turn a college student into a sex offender. In fact, according to the National Institute on Alcohol Abuse and Alcoholism, some offenders actually drink alcohol before committing sexual assault specifically to later justify their behavior. Relying on restorative justice to ‘treat’ this group would be a dangerous validation of their criminal deceit.

The third common argument – that schools might be safe relying on restorative justice methods in cases of sexual harassment that don’t involve physical assault – is risky at best. Those who sexually harass others are objectifying and dehumanizing their victims, behavior that is often a prelude to assaults....

The reality is that I believe the majority of sex offenders are largely incapable of empathy. Two-thirds of male sex offenders will re-offend if they are not treated and restrained as criminals. The consensus among mental health and criminal justice professionals is that most sex criminals cannot be reformed; they can only be monitored, controlled and contained.

These are people who look at the tears and agony on victims’ faces, show no mercy and then quickly move on to their next victim. Restorative justice can be a wonderful tool for certain types of offenses, but let’s not ask victims of sexual assault to suffer an even greater burden by making them take part in their attackers’ so-called “reformation.”

February 1, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (19)

Tuesday, January 31, 2017

"Delaying a Second Chance: The Declining Prospects for Parole on Life Sentences"

The title of this post is the title of this notable new report released today by The Sentencing Project. Here is the first part of the report's Executive Summary:

Amid growing public support for criminal justice reform, policymakers and criminal justice practitioners have begun to scale back prison sentences for low-level, nonviolent crimes. Although the results have been modest — a 5% reduction in the overall U.S. prison population between 2009 and 2015 — this shift follows almost four decades of prison expansion. But so far, criminal justice reform has largely excluded people in prison with life sentences.  This growing “lifer” population both illustrates and contributes to the persistence of mass incarceration.

Most people serving life sentences were convicted of serious crimes.  Their incarceration was intended to protect society and to provide appropriate punishment.  But many were sentenced at a time when “life with the possibility of parole” meant a significantly shorter sentence than it has become today. Many remain incarcerated even though they no longer pose a public safety risk.

Researchers have shown that continuing to incarcerate those who have “aged out” of their crime-prone years is ineffective in promoting public safety.  Long sentences are also limited in deterring future crimes given that most people do not expect to be apprehended for a crime, are not familiar with relevant legal penalties, or criminally offend with their judgment compromised by substance abuse or mental health problems.  Unnecessarily long prison terms are also costly and impede public investments in effective crime prevention, drug treatment, and other rehabilitative programs that produce healthier and safer communities.

Despite this body of criminological evidence, the number of people serving life sentences has more than quadrupled since 1984 — a faster rate of growth than the overall prison population.  Even between 2008 and 2012, as crime rates fell to historic lows and the total prison population contracted, the number of people serving life sentences grew by 12%.  By 2012, one in nine people in U.S. state and federal prisons — nearly 160,000 people — were there under life sentences.  Two factors have driven this growth: the increased imposition of life sentences, particularly those that are parole-ineligible, and an increased reluctance to grant parole to the 110,000 lifers who are eligible. MO

January 31, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, January 29, 2017

"A Better Approach to Violent Crime"

The title of this post is the headline given by the Wall Street Journal to John Pfaff's extended weekend commentary about crime and punishment in the United States. The subheadline provides a better summary of the themes of the extended essay: "If we’re going to end mass incarceration in the U.S., it will mean figuring out better ways to prevent violent crimes and to deal with those who commit them." John's analysis of modern mass incarceration is always in the must-read category, and here are some extended excerpts from this latest piece that help highlight why:

If we are serious about ending mass incarceration in the U.S., we will have to figure out how to lock up fewer people who have committed violent acts and to incarcerate those we do imprison for less time.

There is an obvious rejoinder, of course: Don’t we need to keep people convicted of violence locked up for long periods? Isn’t this how we’ve kept the crime rate down for so long? The answer to both of those questions is, “No, not likely.” Simply put, long prison sentences provide neither the deterrence nor the incapacitation effects that their proponents suggest. (There may be moral arguments for long sentences, but that is a separate issue from public safety.)...

Violence is a phase, not a state. People age into violent behavior and age out of it: A 24-year-old is more violent than a 7-year-old or a 60-year-old. It’s true that some people are more prone to violence than their peers, but almost everyone exhibits some sort of bell-curved trajectory of violence over their lives. Young men are simply more prone to violence than any other demographic group.

It is almost impossible, however, to predict how violent a young person will be in the future. Imposing harsh sanctions for a first violent act needlessly detains many people who are not serious future risks.  In addition — and somewhat counterintuitively — by the time a person in his 30s has generated a long criminal history suggesting that he poses a continuing risk, he is likely to have started “aging out” of crime, violent behavior in particular.

A prominent study of hundreds of at-risk men that tracked their behavior from ages 7 to 70, for example, found that most started to engage in crime in their late teens and began to stop in their mid to late 20s. Only about 10% continued to offend consistently into their 30s, and only about 3% did so at high rates.

California has tested this proposition. Since 2012, the state has granted early release to over 2,000 people convicted under its harsh three-strikes law, and their recidivism rate has been about a 10th of the state average (4.7% vs. 45%) — due in no small part to the fact that those released early are often in their 40s and 50s and thus no longer likely to offend. ​

Whether aimed at younger or older defendants, lengthy incapacitation often imposes substantial, avoidable costs — not just on prison budgets but on society at large, which loses many people who might otherwise be productive citizens.  A long prison sentence also undermines someone’s ability to find the stabilizing influence of a job or a spouse, thus increasing the long-run risk that he will reoffend.

The good news is that a growing number of proven tactics can keep violent crime low, and perhaps reduce it even further, without relying as much on prison. If governments lock up fewer people for violent crimes, they can use some of the savings to help fund these alternatives.

One widely adopted approach is what experts call “focused deterrence,” which was first tried, with great success, in Boston in the mid-1990s. Aimed at reducing the violence associated with gang membership, the program brings gang members together with the police, social-service providers and respected members of the local community. They are told that if violence continues, the police will crack down quickly and severely. Those who agree to put violence behind them, however, are offered help with housing, education, drug and alcohol treatment and other services, and community leaders make a moral plea to them.  Such programs have had a significant effect on street violence in many places. Nine of the 10 high-quality studies that have been done on focused deterrence report strong impacts — a 63% decline in youth homicides in Boston, a 35% decline in murders among “criminally active group members” in Cincinnati and so on. ​

A related but less conventional approach called “Cure Violence” has been tried in New York City and Chicago (and even as far afield as Rio de Janeiro and Basra, Iraq). This program treats gun violence as a public-health problem: If left “untreated,” a shooting will be transmitted to another victim, thanks to retaliation. The idea is to interrupt that cycle, relying on people like former gang members (as opposed to the police) to help shooting victims and their friends and family find other, nonviolent ways to resolve the conflict.

Like focused deterrence, this approach also seeks to provide at-risk youth with access to resources, ranging from housing to entertainment. In New York City, a study conducted between 2010 and 2012 found that areas where Cure Violence operated had experienced 20% fewer shootings as compared with similar areas. Conversely, shootings in Chicago began to rise sharply shortly after a stalemate over the state budget resulted in a drastic cut in funding for Cure Violence in March 2015. The biggest increases in lethal violence occurred in those neighborhoods where the program had been used most widely.

Another key tactic is “hot-spot policing.” Crime is generally concentrated in particular neighborhoods.  Some studies have found that half of all urban crimes take place in under 10% of all city blocks.  In Chicago, nearly 45% of the increase in murders between 2015 and 2016 occurred in only five neighborhoods, home to just 9% of the city’s population. Hot-spot policing identifies these high-crime blocks and significantly increases patrols and community involvement there.

It has produced significant results, even in nearby neighborhoods not subject to increased enforcement, which suggests that people are not simply changing where they commit crimes. The Philadelphia Foot Patrol Experiment, for example, identified 120 blocks that had high levels of violent crime and then assigned additional patrol officers to 60 randomly selected blocks for three months. Hot spots with extra patrols experienced a 23% drop in violent crime relative to those that didn’t. A comprehensive review of the hot-spot literature found that 20 out of 25 tests reported “noteworthy crime control gains.”...

Prison, in short, is by no means the only effective way to respond to violent behavior.  In fact, compared with these programs, prison is likely one of the least efficient approaches that we have.  The declines in incarceration over the past six years are worth celebrating.  But they are modest, in no small part because politicians are understandably afraid to confront a fundamental source of prison growth: our shortsighted policies on violent crime.

If we really hope to scale back our sprawling prison system, we must send fewer people to prison for violent crimes and keep those we do lock up for less time.  Fortunately, we can preserve the tremendous reductions of violence we have experienced over the past 25 years with smarter, safer and more humane approaches.

January 29, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (2)

Saturday, January 28, 2017

An object lesson in what not to do when you find a big bale of cocaine in the ocean

A helpful reader flagged this somewhat amusing though still very serious sentencing tale of a not-so-old man and the sea.   The headline of the article provides the essentials: "Fla. fisherman who hauled in $500,000 worth of cocaine faces life in prison."  And here are some of the particulars:

Cocaine, more so than any other narcotic, is the drug most frequently interdicted by the U.S. Coast Guard. In late 2016, the Coast Guard announced it had seized about $2 billion worth of cocaine during a 10-week operation that began in October. (At 26.5 tons, the weight of the seized stimulant rivaled the bulk of four African bull elephants.) Water is the route of choice for drug runners. Some 95 percent of cocaine smuggling operations, a Coast Guard rear admiral told the BBC in 2015, involves traveling via boat.

In the Gulf Coast, a container vessel or freighter may serve as a mother ship, which offloads the drug to sailboats, go-fast cigarette boats, fishing boats and other smaller boats. “Fishermen are great mules because they know the waters and they don’t draw attention,” wrote journalist Erik Vance at Slate in 2013. “And if you have to chuck your haul overboard to avoid the military, other fishermen can dive to retrieve it.” And if the divers sent after the contraband cannot find it, perhaps someone else will.

In 2016, that someone else was Thomas Zachary Breeding. Breeding, 32, was a longline fisherman from Panama City, Fla. The fisherman had accumulated a few run-ins with the law, including drug and gun convictions, the Panama City News Herald reported. In 2012, a federal grand jury indicted Breeding for giving false statements to the National Oceanic and Atmospheric Administration. Prosecutors also alleged he obstructed the agency’s investigation into why the fisherman had entered grouper spawning grounds, closed to fishing; Breeding, they argued, deliberately sought to catch a valuable species of fish called gag grouper. He was sentenced to 15 months in prison.

But, until Breeding found the 45-pound cocaine bale, the fisherman said that he had kept a previously clean slate when it came to the narcotics trade. “I do not know where the drugs came from and haven’t ever been involved in the drug trade before. I was just a hard-working, young commercial fisherman,” Breeding wrote recently in a letter to the News Herald, penned from Florida’s Washington County Jail. “I was working as a long line boat captain out of Panama City when I found a package containing 20 kilos of cocaine.”

It was a what-if scenario of the type that fuels Florida crime potboilers: A fisherman finds a package of drugs valued at a huge street sum, and makes a decision. In Breeding’s case, he was 50 miles south of Panama City when he found between $500,000 and $650,000 of cocaine floating in the gulf. As impressive as the sum was, in the annals of washed-ashore cocaine — white lobster, as villagers along the Central American coast euphemize it — its street value was not a record. In 2013, five fishermen found $2.5 million of cocaine in the waters off north Florida. A metal tube filled with an estimated $5 million worth of cocaine washed up in Ireland last summer.

But it was an object lesson in what not to do. In December, Mark “The Shark” Quartiano, a celebrity Miami fisherman, found a kilogram brick of cocaine. He promptly alerted the authorities. Breeding did not. He instead handed over the 45-pound haul to four other people, on the condition they would sell the cocaine and pay a cut to Breeding. All five were caught in the summer — Breeding, a felon, had a firearm in his car when he was arrested — and faced conspiracy charges for the distribution of a controlled substance. Breeding pleaded guilty Wednesday, the News Herald reported, as did the other members of the network; they are awaiting a Feb. 16 sentencing. Breeding may be punished with up to life imprisonment and a fine in the millions of dollars.

January 28, 2017 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (3)

Thursday, January 26, 2017

"Strict Liability's Criminogenic Effect"

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

It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil.  And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous.  Similar arguments support the use of criminal liability for regulatory offenses.  Greater punishment rates suggest greater compliance.

But this analysis fails to appreciate the crime-control costs of strict liability.  By explicitly providing for punishment in the absence of moral blameworthiness, the law undermines its moral credibility with the community and thereby provokes subversion and resistance instead of the cooperation and acquiescence it needs for effective crime control.  More importantly, the system's lost moral credibility undermines the law’s ability to harness the powerful forces of stigmatization, social influence, and internalized norms.  Given the serious limitations inherent in the real-world application of general deterrence and preventive detention programs, the most effective crime-control strategy is to build the criminal law's reputation for being just, which means avoiding the use of strict liability. 

January 26, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Wednesday, January 25, 2017

Is Prez Trump really ordering the Justice Department to conduct major voter fraud investigation?

Though it appears that Jeff Sessions will not be confirmed to serve as our next Attorney General until next week, his boss this morning was tweeting a new crime-fighting agenda for the Justice Department.  This U.S. News & World Report article, headlined "Trump Calls for Voter Fraud Investigation: The president has previously declared that 3 to 5 million voted illegally in 2016," explains:

President Donald Trump called for a "major investigation" into voter fraud Wednesday. "I will be asking for a major investigation into VOTER FRAUD, including those registered to vote in two states, those who are illegal and… even, those registered to vote who are dead (and many for a long time). Depending on results, we will strengthen up voting procedures!" the president tweeted from his personal account.

The call is a follow-up on comments from Trump and the White House. Trump said "millions" voted illegally in November, prompting him to lose the popular vote to Hillary Clinton. And shortly after being sworn in as president, Trump repeated the claim to lawmakers at a White House reception, the Washington Post reported Tuesday.

When asked if the administration would call for an investigation on the matter at Tuesday's briefing in Washington, White House press secretary Sean Spicer said that it was a possibility. "Maybe we will," Spicer said.

He noted the president has continuously stated his concern on the issue before and "continues to maintain that belief" that voter fraud is a major problem, "based on studies and evidence people have brought to him." Spicer specifically cited a study "that came out of Pew in 2008 that showed 14 percent of people who voted were noncitizens."

Politico slammed the veracity of that study and claim, and several outlets, including CNN and the Associated Press, assert that the president and his team have provided essentially no evidence for these claims....

The White House is not fully going it alone, however. Mitch McConnell, the Senate Republican leader, gave at least tacit backing to Trump on the issue Tuesday. "It does occur," McConnell told reporters. "The notion that election fraud is a fiction is not true… There are always arguments on both sides about how much, how frequent and all the rest."

But House Speaker Paul Ryan said he had seen "no evidence to that effect" and he's made his position on the matter "very, very clear."

Based on the reports and evidence I have seen marshaled by folks on both sides of the political aisle, the claim that millions (rather than perhaps just hundreds) voted illegally in the 2016 election is seemingly badly detached from reality.  And it is useful to recall that we went down this road to some extent 16 years ago the last time a Republican took control of the Executive Branch.  This lengthy New York Times article from 2007, headlined "In 5-Year Effort, Scant Evidence of Voter Fraud," review the last version of this story and it starts this way:

Five years after the Bush administration began a crackdown on voter fraud, the Justice Department has turned up virtually no evidence of any organized effort to skew federal elections, according to court records and interviews. Although Republican activists have repeatedly said fraud is so widespread that it has corrupted the political process and, possibly, cost the party election victories, about 120 people have been charged and 86 convicted as of last year.

January 25, 2017 in Criminal justice in the Trump Administration, Offense Characteristics, Who Sentences? | Permalink | Comments (16)

Friday, January 20, 2017

You be the judge: what federal sentence for "Dance Mom" star after her guilty plea to financial crimes?

Abby-lee-millerI am not ashamed to admit that some years ago the reality show "Dance Moms" was a regular watch in the Berman home.  My dancing daughters found engaging how the young dancers in the show stood up to the pressures created by teachers and parents; I was amazed at how the adult star, Abby Lee Miller, created a media sensation despite having no obviously distinctive talents.  But now, as this local article highlights, headlined "'Dance Moms' TV star faces sentencing in federal court," Abby Lee Miller is now of interest to me for a very different reason. Here are the details:

“Dance Moms” TV star Abby Lee Miller, convicted of hiding assets from bankruptcy court and sneaking cash into the U.S. to conceal it, says she shouldn’t go to federal prison. Ms. Miller, whose real name is Abigale Miller, is asking U.S. District Judge Joy Flowers Conti for probation.

But the government says she has shown no respect for the law — at one point she sent an email to her accountant using a vulgar term in referring to the bankruptcy judge handling her case — and deserves the two years to 30 months called for by federal sentencing guidelines.

Ms. Miller’s sentencing will start today. A second day has been set aside to finish it on Feb. 24. The unusual format was necessary because the sentencing is likely to be contentious enough to require two days and the judge also is handling the ongoing drug trial of former Pittsburgh Steelers doctor Richard Rydze.

Ms. Miller became a federal felon in June when she pleaded guilty to concealing assets from her TV show from federal bankruptcy court in Pittsburgh. She also admitted that she sneaked cash into the country in plastic bags stuffed into luggage after returning from dance trips in Australia. In pre-sentencing filings, Ms. Miller gave an accounting of her past, saying her family-run Penn Hills dance studio was in financial trouble in the late 2000s because of her lack of financial knowledge and a drop in enrollment caused by the global economic crisis and the decline of Penn Hills. She declared bankruptcy in 2010.

But when her reality TV show took off in 2011, she and her lawyer said, she suddenly became a star and didn’t know how to handle the fame that it brought. She soon became overwhelmed. “She was simply ill-equipped to manage her good fortune,” wrote attorney Brandon Verdream. He said she always intended to pay off her creditors at 100 percent and has admitted that what she did was wrong. “It was a foolish decision to skirt the law and she has accepted a felony conviction as the wages of her frivolity,” Mr. Verdream wrote.

He and Ms. Miller, who had been splitting time among homes in California, Florida and Penn Hills, also pointed to all of the people she has helped over the years as one reason she should not be jailed, including the 40-some dancers she has trained who went on to professional careers on Broadway and elsewhere. Mr. Verdream presented many letters on her behalf and asked Judge Conti to impose a “non-custodial” sentence.

But federal prosecutors say the guidelines don’t allow for probation and Ms. Miller’s calculated conduct warrants time behind bars. Assistant U.S. Attorney Greg Melucci said that Ms. Miller had numerous opportunities during her bankruptcy to set the record straight about her assets, yet chose to lie repeatedly.

Among his exhibits are emails and texts she sent showing her contempt for the court and her intent to hide income even after warnings. After being dressed down by U.S. Bankruptcy Judge Thomas Agresti in February 2013, for example, she sent an email to her accountant describing the judge using a derogatory term and complaining that he hated her because he was making her pay all of her creditors back at once.

Judge Agresti showed plenty of irritation at Ms. Miller as her schemes became apparent, Mr. Melucci said. At one hearing in 2012, he found out she hadn’t revealed her income from 2012 and had also struck TV show contracts without disclosing them in an amended bankruptcy plan. After she complained that she didn’t even know about the contracts, he’d had enough. “And she can shake her head and protest all she wants and go through her TV face, that’s not going to affect me, ma’am, and I’d prefer you stop it, OK?” the judge told her. “Let’s be a little stoic here. These are very serious problems you have, and a failure to disclose.”

Mr. Melucci also said her attempt to transport cash into the U.S. shows that she continued “her scheming ways” even after being caught hiding assets from bankruptcy. “It is apparent that Miller is not easily deterred by the threat of criminal prosecution,” he wrote, “even standing before a federal judge.” Judge Agresti discovered Ms. Miller’s fraud by chance. He said he was channel-surfing one night, came across her TV performances and realized she had more money than she was revealing in her Chapter 11 filings.

The U.S. Attorney’s office said she tried to hide about $755,000 from the bankruptcy trustee. In the other case, prosecutors said she did not report money that she transferred from Australia into the U.S. after trips there in 2014 to conduct dance instruction classes before large audiences. Mr. Melucci said she and her entourage brought back about $120,000 in cash tucked into Ziploc bags in amounts less than $10,000 and hidden in their luggage. Among the government’s exhibits is a photo of the cash bundles seized.

January 20, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (4)

Thursday, January 19, 2017

"Dear President Trump: Here’s How to get Right on Crime, Part 2"

As noted in this prior post, the Marshall Project this week has a timely three-part series in which leading conservatives working on and advocating for criminal justice reform are setting out the conservative case for reforms. The first commentary was authored by Pat Nolan and carried the subheadline "Focus on intent, tailor the punishment to the crime, prepare prisoners for life after incarceration."

The second in the series here is authored by Vikrant Reddy and carries the subheadline "End overcriminalization, reward success, pay attention to the heroin crisis." Here are excerpts:

Criminal justice reform advocates are pessimistic about the prospects for federal sentencing reform under the new presidential administration. Federal sentencing, however, is only one component of America’s vast criminal justice system. There are several other areas where the administration and reformers could find common cause.  Here are just three reforms widely supported by advocates which are also consistent with a “Trumpian” worldview.  They should be at the forefront of a serious federal reform agenda over the next four years.

Scaling Back Overcriminalization

There are now over 5,000 obscure federal crimes, such as shipping lobster in plastic rather than cardboard boxes, that are more appropriately treated as administrative or regulatory matters. Furthermore, the mens rea or “state of mind” portions of many criminal statutes (which specify whether the conduct must be purposeful, knowing, reckless, or negligent) are frequently left out when laws are drafted. Reversing this “overcriminalization” has long been a priority for conservatives. Yet it has also been a priority for prominent progressive voices, such as the National Association of Criminal Defense Lawyers and U.S. Representatives John Conyers and Bobby Scott....

Performance-Incentive Funding

One of the most widely-admired strategies for improving criminal justice outcomes is performance-incentive funding (PIF). The idea is simple: Governments should fund prisons (and community corrections programs, for that matter) based on outcomes achieved, not merely on the number of people incarcerated. A government that contracts for lower recidivism rates and increased restitution payments to victims is more likely to find that its prisons are encouraging education and job training behind bars. People from the business world who are more concerned with results than with ideologies — such as Donald Trump — are likely to understand this truth intuitively: You get what you pay for....

Combating Heroin Addiction

On Election Day, Trump performed unusually well in communities ravaged by heroin abuse. He seemed to understand that he owes it to these voters — his base — to take the issue seriously. His administration will likely pursue a law enforcement solution that attacks the “supply side” of the heroin problem, as Trump frequently promised on the campaign trail. There is also a “demand side” to the problem, however, and Trump must treat this side of the problem with equal urgency.  This means redirecting scarce resources from incarceration to less costly and more effective diversion programs that treat addiction.

Prior related post:

January 19, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Offense Characteristics, Who Sentences? | Permalink | Comments (2)