Tuesday, August 26, 2014

Though guidelines recommend two years or less, feds request 10-year max for woman who bought guns for killer

An interesting and challenging federal sentencing is scheduled this week in upstate New York, and one of many reasons the case is noteworthy is because federal prosecutors are requesting a statutory maximum sentencing term of 10 years in prison when the applicable guideline recommend only 18 to 24 months for the offense.  This recent local article, headlined "U.S. asks for Nguyen to get 10 years," provides the context and details: 

Federal prosecutors want a judge to ignore sentencing guidelines and sentence Dawn Nguyen to 10 years in prison. While Nguyen likely did not know that firearms she bought for William Spengler Jr. would be used in an ambush of volunteer firefighters, she did "place two tactical military-style weapons in the capable hands of a man who she knew had already killed his own grandmother," say court papers filed Thursday by Assistant U.S. Attorney Jennifer Noto.

Nguyen is scheduled to be sentenced in U.S. District Court on Thursday for her conviction in three federal crimes: lying on a federal firearms transaction when she bought a shotgun and semiautomatic rifle in June 2010; passing those weapons onto a man — Spengler — whom she knew was a convicted felon; and possessing the guns while she was a marijuana user.

The request for a 10-year sentence sets up a rare occurrence in federal court — a decision by a judge as to whether the crimes were so extraordinary that the guidelines should be bypassed.  The guidelines, while only advisory, are designed to ensure comparable punishments for comparable crimes.  A judge has the discretion in unusual cases to sentence up to the maximum, which for Nguyen is 10 years for each crime.

To make his decision, U.S. District Judge David Larimer will have to weigh the question that has long been central to Nguyen's offenses: Should she be held responsible for the Christmas Eve 2012 violence spree during which Spengler killed his sister and two volunteer firefighters?...

Nguyen has pleaded guilty to the federal crimes. She also was convicted in state Supreme Court of lying on the firearms purchase form when she said the guns were for her. State Supreme Court Justice Thomas Moran sentenced her to 16 months to four years in state prison.

In June 2010, Nguyen and Spengler went to Gander Mountain in Henrietta where she bought the weapons for Spengler, who could not own guns because of his past crimes. On the morning of Christmas Eve 2012, Spengler fatally shot his sister, Cheryl, then started a blaze that largely destroyed his Lake Avenue home and others along the Lake Road strip. He then lay in wait for firefighters, ambushing them with the guns bought by Nguyen. He fatally shot West Webster volunteer firefighters Michael Chiapperini, 43, and Tomasz Kaczowka, 19.

The 10-year sentence "is what the victims have asked for," U.S. Attorney William Hochul Jr. said Friday of the families of the slain firefighters.  "It's absolutely critical that the judge keep in mind the chain of events started by Dawn Nguyen," Hochul said.

In a letter to the court, Nguyen, now 25, said that Spengler told her he wanted the guns for hunting, and she did not know enough about guns to find that unusual.  She wrote that she knew Spengler had been imprisoned for the death of his grandmother, but she did not know exactly what he had done.

Her attorney, Matthew Parrinello, said Friday that the request by prosecutors for a 10-year sentence is a "media grab."

"She committed a crime and she has already been punished," he said, noting Nguyen's state prison sentence. Parrinello wants Larimer to use the sentencing guidelines, and have the federal sentence run concurrent with her state sentence.

Prosecutors are asking that the federal sentence not be served until after Nguyen completes her state sentence, which would further increase the time she has to spend in prison.

The 25-page sentencing brief submitted by federal prosecutors in this notable case is available at this link and it make for an interesting read.

August 26, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, August 24, 2014

Will third time be a charm in federal sentencing of child porn defendant Richard Bistline?

Regular readers and those who follow closely federal sentencing of child pornography offender will recall the name Richard Bistline: as detailed in posts linked below, the Bistline's sentencing created a kind of battle royale between US District Judge James Graham and the Sixth Circuit.  This coming week, as reported in this Columbus Dispatch article, Bistline is scheduled to be resentenced yet again, this time by a different district judge after Judge Graham's prior sentences were twice found to be substantively unreasonable by the Sixth Circuit.  Here are excerpts from the Dispatch article providing the backstory:

Are federal sentencing guidelines for possessing child pornography too harsh?  Calling the guidelines “draconian,” U.S. District Judge James L. Graham has become increasingly vocal in his criticism from the federal bench in Columbus.

Possessing child porn is vastly different from distributing or producing it, Graham said in an interview last week. “The purveyors or producers of these images deserve the most severe punishment we can give them.  My concern is the people who end up possessing it.”

Richard Bistline, a Knox County man, is to be in federal court on Wednesday to be sentenced for the third time for child-porn possession.  His case thrust Graham into the spotlight in 2010 after the judge sentenced Bistline, of Mount Vernon, to one day in prison, 30 days of home confinement and 10 years of probation.  The recommended sentence under federal guidelines was five to six years.

Assistant U.S. Attorney Deborah A. Solove appealed Graham’s sentence to the 6th U.S. Circuit Court of Appeals, which ruled that the penalty did not reflect the seriousness of the offense.  The appeals court ordered Graham to resentence the defendant.  But a defiant Graham again sentenced Bistline to a single day in prison, although he increased the home confinement to three years.  Solove again appealed, and the 6th Circuit court again ruled that Graham’s sentence was too lenient.  The court removed Graham from the case.

Judge George C. Smith is to sentence Bistline on Wednesday....

Graham says the guidelines for child-porn possession are outdated.  Adding points for looking at child porn on a computer is unjustified, he said, because nearly all of it is accessed that way.  Adding points for possession of numerous images is unjustified because “current technology produces numerous images with one key stroke or mouse click,” he said....

In its second Bistline ruling, the appeals court wrote that possessing child porn “is not a crime of inadvertence, of pop-up screens and viruses that incriminate an innocent person.”  Possession becomes a crime “when a defendant knowingly acquires the images — in this case, affirmatively, deliberately and repeatedly, hundreds of times over, in a period exceeding a year."

Graham isn’t alone in his contention that the guidelines are outdated.  A 2013 U.S. Sentencing Commission report on federal child-porn guidelines noted that many of the sentencing enhancements designed to further punish the worst possessors now apply to most offenders....

Other men who have pleaded guilty to one count of child-porn possession in federal court in Columbus, as Bistline did, have received multiple-year sentences.  Among them: former special deputy sheriff Todd R. German of Union County, sentenced last year to four years; former Reynoldsburg teacher Matthew Fisher, sentenced in 2011 to three years; and former Columbus doctor Philip Nowicki, sentenced in 2011 to two years.

Graham said most of the child-porn-possession defendants he sees have no previous criminal record and “are involved in viewing these images as a result of what appears to be a form of addiction I think is becoming more and more prevalent in today’s society, affecting people of all ages.”  Just by being found guilty, he said, they face ruined lives, for both themselves and their families.  “They need to stop it,” he said. “The men who are doing this are going to get caught.”

Prior related posts:

August 24, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Tuesday, August 19, 2014

"An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?"

The title of this post is the title of this notable new article recently posted on SSRN and authored by John J. Donohue III.  Here is the abstract:

This article analyzes the 205 death-eligible murders leading to homicide convictions in Connecticut from 1973-2007 to determine if discriminatory and arbitrary factors influenced capital outcomes.  A regression analysis controlling for an array of legitimate factors relevant to the crime, defendant, and victim provides overwhelming evidence that minority defendants who kill white victims are capitally charged at substantially higher rates than minority defendants who kill minorities, that geography influences both capital charging and sentencing decisions (with the location of a crime in Waterbury being the single most potent influence on which death-eligible cases will lead to a sentence of death), and that the Connecticut death penalty system has not limited its application to the worst of the worst death-eligible defendants.  The work of an expert hired by the State of Connecticut provided emphatic, independent confirmation of these three findings, and found that women who commit death-eligible crimes are less likely than men to be sentenced to death.

There is also strong and statistically significant evidence that minority defendants who kill whites are more likely to end up with capital sentences than comparable cases with white defendants.  Regression estimates of the effect of both race and geography on death sentencing reveal the disparities can be glaring. Considering the most common type of death-eligible murder — a multiple victim homicide — a white on white murder of average egregiousness outside Waterbury has a .57 percent chance of being sentenced to death, while a minority committing the identical crime on white victims in Waterbury would face a 91.2 percent likelihood.  In other words, the minority defendant in Waterbury would be 160 times more likely to get a sustained death sentence than the comparable white defendant in the rest of the state.

Among the nine Connecticut defendants to receive sustained death sentences over the study period, only Michael Ross comports with the dictates that “within the category of capital crimes, the death penalty must be reserved for ‘the worst of the worst.’”  For the eight defendants on death row (after the 2005 execution of Ross), the median number of equally or more egregious death-eligible cases that did not receive death sentences is between 35 and 46 (depending on the egregiousness measure).  In light of the prospective abolition of the Connecticut death penalty in April 2012, which eliminated the deterrence rationale for the death penalty, Atkins v. Virginia teaches that unless the Connecticut death penalty regime “measurably contributes to [the goal of retribution], it is nothing more than the purposeless and needless imposition of pain and suffering, and hence an unconstitutional punishment.”  Apart from Ross, the evidence suggests that the eight others residing on death row were not measurably more culpable than the many who were not capitally sentenced.

Moreover, Connecticut imposed sustained death sentences at a rate of 4.4 percent (9 of 205).  This rate of death sentencing is among the lowest in the nation and more than two-thirds lower than the 15 percent pre-Furman Georgia rate that was deemed constitutionally problematic in that “freakishly rare” sentences of death are likely to be arbitrary.

August 19, 2014 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0) | TrackBack

Monday, August 18, 2014

Intriguing account of how Pittsburgh police undermined local crime-fighting efforts

This new article from the Pittsburgh Post-Gazette provide a disconcerting account of how local police can undermine efforts to reduce local crime. The piece is headlined "Professor: Lack of cooperation marred success of Pittsburgh crime-fighting initiative," and here are excerpts:

It was one of the most embarrassing moments of David Kennedy’s career. Mr. Kennedy, a professor at the John Jay College of Criminal Justice at the City University of New York who has spent two decades studying crime and policing and worked with hundreds of departments across the country, was brought to Pittsburgh in 2008 by then-Mayor Luke Ravenstahl to help launch an initiative that has been credited with stemming killings in Cincinnati, Boston, Chicago, New Orleans, Philadelphia and elsewhere.

“It is the most effective intervention with respect to gun violence or homicide that we have in any portfolio,” said Mr. Kennedy, also an author and co-chairman of the National Network for Safe Communities, an initiative of John Jay’s Center for Crime Prevention and Control. “This works better than everything.”

Part of implementing the Pittsburgh Initiative to Reduce Crime — a combination of outreach to gangs and other violent groups, a swift police crackdown on group members when shootings happen and the provision of social and job-related services to offer members a way out — required mining the knowledge of veteran street officers to identify the people most likely to become victims or perpetrators of shootings.

A team from the University of Cincinnati was brought in to spend a few days with those police officers to map out the city’s violence-prone populations, but the team was sent packing in short order after the police refused to share information, Mr. Kennedy said. “I set this thing up and wound up with my face planted in the mud,” he said, calling it an unprecedented level of resistance that command-level officers orchestrated.

A 2011 city-commissioned report on PIRC that the University of Pittsburgh conducted also found the police largely ignored the Cincinnati academics’ research, which identified 35 “violent groups” in Pittsburgh and determined 69 percent of the city’s homicides from 2007 to early 2010 were “group-related.”

“The Pittsburgh police department was absolutely the most condescending and aggressively uncooperative agency I have encountered,” he said.  “They would not share information; they would not provide information. They would not allow any outsiders in.” It made no difference that PIRC was a mayoral initiative with hundreds of thousands of dollars in City Council funding.  “They actively rejected it and made no secret of that,” Mr. Kennedy said.  “My read on this was the police bureau saying, ‘City Hall is trying to tell us what to do, and we’re not going to do it.’  And they won that fight.”

Not long after, Mr. Kennedy gave up.  “I said to them, ‘This is a sham. I’m not going to be involved in it anymore,’” he said.  Ever since, PIRC has failed to fulfill its potential to reduce the number of bodies hitting city streets, though it has had some success in connecting people with job services and education, said City Councilman Ricky Burgess, who helped bring the program to the city.

“We’re losing lives because the police do not want to make preventing homicides by gaining community confidence its primary concern,” he said, noting that the Allegheny County Department of Human Services embraced many of the same principles Mr. Kennedy promoted in a June report.  “We need a philosophical change in the way the city of Pittsburgh police operates.”

Two weeks ago, Mayor Bill Peduto, who was elected last year, and his new public safety director, former Pennsylvania state trooper and FBI special agent Stephen Bucar, were flanked by acting police Chief Regina McDonald at a news conference to address a spike in killings....  PIRC was barely mentioned during the news conference, during which most of the focus was on 13 new officers assigned to walk beats in Homewood and other East End neighborhoods, three more detectives moving to the bureau’s homicide division and the role of the community in reporting crime and coming forward as witnesses....

Sonya Toler, the city’s public safety spokeswoman, refused requests to interview Chief McDonald, former Public Safety Director Mike Huss, who remains on the city payroll, and Deputy Chief Paul Donaldson about PIRC.  Jay Gilmer, PIRC’s civilian coordinator and sole employee, who is paid about $49,000 a year, referred all questions to Ms. Toler, who said some of the past friction was the result of restrictions on sharing information outside of law enforcement circles.  She said while it “may be true” that police resistance stifled PIRC’s effectiveness, dwelling on the past won’t make the program better in the future....

The mayor and Mr. Bucar have said they favor revamping PIRC, with Mr. Bucar pledging during his council confirmation hearing that the police “will become engaged” in the program.  Mr. Bucar has assigned Officer Michelle Auge to be his liaison to the police bureau, which will include PIRC work, in a move that is already yielding results, Ms. Toler said....

Whatever happens, the existing Pittsburgh program needs more than a tweak, Mr. Kennedy said.  “They need to blow it up and start all over again,” he said.  “PIRC did not fail because it won’t work in Pittsburgh.  PIRC failed because the police bureau failed to let it succeed.”

August 18, 2014 in National and State Crime Data, Offense Characteristics, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, August 16, 2014

Texas Gov Rick Perry facing two felony charges carrying significant mandatory minimum prison terms

I know very little about Texas criminal laws and procedures, and I know even less about the political and legal in-fighting that appears to have resulted in yesterday's remarkable indictment of Texas Gov Rick Perry on two state felony charges.  But I know enough about mandatory minimum sentencing provisions to know Gov Perry might be looking a significant prison time if he is convicted on either of these charges.  This lengthy Dallas Morning News article, headlined "Gov. Rick Perry indicted on charges of abuse of power, coercion," provides some of the political and legal backstory (as well as a link to a copy of the two-page indictment): 

Republican Rick Perry, becoming the first Texas governor indicted in almost a century, must spend the final five months of his historically long tenure fighting against felony charges and for his political future. A Travis County grand jury on Friday charged Perry with two felony counts, abuse of official capacity and coercion of a public servant, after he vetoed funding for a county office that investigates public corruption.

Special prosecutor Michael McCrum of San Antonio said he felt confident in the case against Perry and was “ready to go forward.” Perry made no statement, but his general counsel, Mary Anne Wiley, said he was exercising his rights and power as governor. She predicted he would beat the charges. “The veto in question was made in accordance with the veto authority afforded to every governor under the Texas Constitution. We will continue to aggressively defend the governor’s lawful and constitutional action, and believe we will ultimately prevail,” she said.

The charges set off a political earthquake in the capital city.  Democrats said the indictment underscores Perry’s insider dealing and he should step down.  Republicans called it a partisan ploy to derail him, especially aimed at his second presidential run that had been gathering momentum.

The case stems from Perry's erasing $7.5 million in state funding last year for the Travis County Public Integrity Unit. He did so after District Attorney Rosemary Lehmberg, a Democrat, rejected his calls to resign after her drunken driving conviction.

Perry could appear as early as next week to face arraignment on the charges. Abuse of official capacity is a first-degree felony with punishment ranging from five to 99 years in prison, and coercion of a public servant is a third-degree felony with a penalty of two to 10 years.

In announcing the indictment, McCrum said he recognized the importance of the issues at stake. “I took into account the fact that we’re talking about the governor of a state and the governor of the state of Texas, which we all love,” he said. “Obviously, that carries a level of importance. But when it gets down to it, the law is the law.”...

The allegations of criminal wrongdoing were first filed by Craig McDonald, director of the nonprofit campaign watchdog group Texans for Public Justice. McDonald has maintained that using veto threats to try to make another elected official leave was gross abuse of office. “The grand jury decided that Perry’s bullying crossed the line into lawbreaking,” he said Friday. “Any governor under felony indictment ought to consider stepping aside.”

State Republican Party chairman Steve Munisteri decried the prosecution as politically motivated. “Most people scratch their heads and wonder why we’re spending taxpayer dollars to try to put somebody in jail for saying that they didn’t feel it was appropriate to fund a unit where the person in charge was acting in a despicable way,” Munisteri said....

A judge from conservative Williamson County, a suburban area north of Austin, appointed McCrum to look into the case. The current grand jury has been studying the charges since April.  McCrum worked for 10 years as a federal prosecutor, starting during President George H.W. Bush’s administration. He’s now in private practice, specializing in white-collar crimes....

McCrum, a former federal prosecutor, said he interviewed up to 40 people as part of his investigation, reviewed hundreds of documents and read dozens of applicable law cases. He dismissed the notion that politics played any part. “That did not go into my consideration whatsoever,” he said.  Asked why he never called Perry before the grand jury, McCrum said, “That’s prosecutorial discretion that I had.”

Of course, what makes this story so very notable from a criminal justice perspective is the extraordinary power and discretion that the special prosecutor had in developing these charges and the extraordinary impact that mere an indictment seems likely to have on Gov Perry professional and personal life.

Regular readers know that former commentor Bill Otis and I often went back-and-forth in the comments concerning my concerns about (and his support for) federal prosecutors have very broad, unchecked, hidden and essentially unreviewable charging and bargaining powers. For this reason, I was especially interested to see that Bill now already has these two new posts up over at Crime and Consequences assailing the charging decision by the (former federal) prosecutor in the Perry case: The World's Most Absurd Indictment and Politics & Prosecution, a Toxic Brew.  I am hopeful (though not really optimistic) that the Perry indictment might help Bill better appreciate why I have such deep concerns about prosecutorial discretion as exercised by federal prosecutors (especially when their powers are functionally increased by severe mandatory minimum sentencing provisions).

August 16, 2014 in Celebrity sentencings, Mandatory minimum sentencing statutes, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (29) | TrackBack

Thursday, August 14, 2014

Eighth Circuit reverses 20-month sentence for police abuse and perjury as substantively unreasonable

In the post-Booker sentencing world, reversal of sentences on appeal for being substantively unreasonable are quite rare. But this week has brought two such reversal: as noted in this prior post, an Eleventh Circuit panel on Tuesday declared a probation sentence in a public corruption case to be substantively unreasonable, and today an Eighth Circuit panel declared a 20-month sentence in a police abuse case to be substantively unreasonable in US v. Dautovic, No. 13-1145 (8th Cir. Aug 14, 2014) (available here). Here is the heart of the unanimous panel ruling:

We conclude that the district court imposed a substantively unreasonable sentence in this case.  Dautovic’s offense conduct was egregious.  A police officer beat an innocent victim with a dangerous weapon, causing serious bodily injury and permanent physical damage. He arrested Bonds and Evans and then wrote a false police report that caused themto be charged with crimes.  At Bonds and Evans’s trial, where they were found innocent, Dautovic committed perjury.  Dautovic maintained throughout his trial that his actions in the early morning hours of September 13 were reasonable and that his police report was sloppy, not intentionally falsified.  A jury, however, found him guilty beyond a reasonable doubt of using excessive force and obstructing justice, and the district court’s findings atsentencing were consistent with the jury’s verdict.  The district court found that Dautovic showed no remorse and that his experience in Bosnia did not relate to his beating of Bonds.

The district court, nonetheless, varied downward from the bottom of the Guidelines range by 115 months.  The district court found that Dautovic overreacted during the arrest and beating of Bonds.  It disagreed with the Guidelines range because it believed that the color-of-law enhancement added too many months to the sentencing range and because the sentencing range exceeded the statutory maximum term of imprisonment for the excessive force count.  It found that a Guidelines-range sentence was inappropriate in light of the fact that Dautovic was a first time offender who had done good things for his community and family.  The district court acted within its discretion when it decided to vary downward based on Dautovic’s history and characteristics and on its policy disagreement with the Guidelines, but these considerations do not justify the imposition of a 20-month sentence in this case.

The district court’s justification for the variance fails to support the degree of the variance in this case.  To the extent the district court tried to avoid unwarranted sentence disparities by basing Dautovic’s sentence on the average sentence imposed for civil rights violations, we are not convinced that the U.S. Sentencing Commission surveyed defendants whose records and offense conduct were similar to Dautovic’s....  Dautovic’s offense conduct involved aggravating circumstances, including the use of a dangerous weapon, the physical restraint of Bonds during the course of the beating, and the infliction of serious injury.  Moreover, acting under the color of law, Dautovic tried to conceal his wrongdoing by falsifying a police report and lying under oath.

When the totality of the circumstances is considered, a variance from the Guidelines range of 135 to 168 months’ imprisonment to a 20-month sentence is unreasonably lenient.  The district court erred in weighing the § 3553(a) factors and abused its discretion in varying downward to the extent that it did.

August 14, 2014 in Booker in the Circuits, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Tuesday, August 12, 2014

Eleventh Circuit finds probation sentence for public corruption substantively unreasonable

All federal sentencing fans and white-collar practitioners will want to be sure to check out a lengthy opinion today from the Eleventh Circuit in US v. Hayes, No. 11-13678 (11th Cir. Aug 12, 2014) (available here). This start to the majority opinion in Hayes highlights why the substance of the ruling is noteworthy:

“Corruption,” Edward Gibbon wrote more than two centuries ago, is “the most infallible symptom of constitutional liberty.” EDWARD GIBBON, THE HISTORY OF THE DECLINE AND FALL OF THE ROMAN EMPIRE, Vol. II, Ch. XXI, at 805 (David Womersley ed., Penguin Classics 1995) [1781].  And so, although unfortunate, it is perhaps not surprising that, even today, people continue to pay bribes to government officials with the expectation that they will make decisions based on how much their palms have been greased, and not what they think is best for the constituents they serve.

In this criminal appeal involving corruption in Alabama’s higher education system, we consider whether the district court abused its discretion by imposing a sentence of three years of probation (with a special condition of six to twelve months of home confinement) on a 67-year-old business owner who — over a period of four years — doled out over $600,000 in bribes to a state official in order to ensure that his company would continue to receive government contracts, and whose company reaped over $5 million in profits as a result of the corrupt payments.  For the reasons which follow, we hold that such a sentence was indeed unreasonable.

Adding to the fun and intrigue of the ruling, Judge Tjoflat has a dissent that runs almost twice as long as the extended majority opinion.  Here is how it gets started (with footnotes omitted):

I fully agree with the court that the sentence of probation Hayes received in this case of massive public corruption is shockingly low and should not have been imposed.  In appealing the sentence, the Government treats the District Court as the scapegoat, as if placing Hayes on probation was all the court’s doing.  The truth is that it was the Government’s doing.  To ensure that Hayes was given adequate credit for cooperating in its investigation, the Government deliberately led the District Court to abandon the Sentencing Guidelines, which called for a prison sentence of 135 to 168 months, and then to ignore the Supreme Court’s explicit instructions, in Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007), on the procedure to use in fashioning an appropriate sentence.  This set the stage for the court’s adoption of a fictitious Guideline range of 41 to 51 months and its creation of a downward variance to a sentence of probation.

In appealing Hayes’s sentence to this court, the Government deliberately avoids any discussion of the District Court’s procedural error.  To the contrary, it accepts the fictitious Guideline range the court adopted.  All it complains of is the variance from that fictitious range to a sentence of probation, arguing that it is substantively unreasonable.  Because it invited the procedural error, which, in turn, led to the complained-of substantive error, the “invited error doctrine” precludes the Government from prevailing in this appeal.  Yet the court fails to acknowledge that a procedural error has occurred.  Instead, it assesses the substantive reasonableness of Hayes’s procedurally flawed sentence — something the Supreme Court prohibits — and thereby avoids the need to grapple with the Government’s invited error.  I dissent from the court’s failure to invoke the doctrine and to send the Government hence without day.

In part I of this opinion, I briefly recount the facts giving rise to Hayes’s conviction and sentencing. In part II, I describe how the Guidelines are supposed to operate and will show how the Government and the District Court misapplied the Guidelines and set the stage for the sentence at issue.  Part III outlines the role the courts of appeals play in reviewing a defendant’s sentence, pinpoints the procedural errors in this case, and explains why the invited error doctrine precludes the Government from capitalizing on its induced error and obtaining relief.  Part IV concludes.

August 12, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"Sex Offender Laws Have Gone Too Far"

The title of this post is the headline of this notable new Slate commentary authored by Matt Mellema, Chanakya Sethi, and Jane Shim which appears to be the first in a series. Here are excerpts:

[The] Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, signed by President Bill Clinton in 1994, ... used federal dollars to push every state to create a [sex offender] registry.  It worked.  Today, all 50 states and Washington, D.C., have them. Since then, Congress has also passed several related pieces of legislation, including two major statutes. Megan’s Law, enacted in 1996, required that the police give the public access to some sex offender registry data, such as an offender’s name, photograph, and address.  In 2006, the Sex Offender Registration and Notification Act toughened the standards for who must register and for how long, and it upped the consequences of registration by requiring, for example, periodic in-person visits to police.

The upshot, experts say, is that the United States has the most draconian sex registration laws in the world.  As a result, the number of registrants across the nation has swelled—doubling and then doubling again to 750,000 — in the two decades since Jacob’s Law passed, according to data collected by the Center for Missing and Exploited Children....

Is the American approach to sex registration working?  Who goes on the registries, for how long, and for what kinds of crimes?  Do the answers suggest that they are helping to keep kids safe — or sweeping in too many people and stoking irrational fears?

In seeking answers to those questions, over the last several months, we were surprised to find that one of the sharpest — and loudest — critics of the ballooning use of registries is [Jacob's mother] Patty Wetterling.  “These registries were a well-intentioned tool to help law enforcement find children more quickly,” she told us.  “But the world has changed since then.”  What’s changed, Wetterling says, is what science can tell us about the nature of sex offenders.

The logic behind the past push for registries rested on what seem like common sense assumptions.  Among the most prominent were, first, sex offenders were believed to be at a high risk for reoffending — once a sex offender, always a sex offender.  Second, it was thought that sex offenses against children were commonly committed by strangers. Taken together, the point was that if the police had a list, and the public could access it, children would be safer.

The problem, however, is that a mass of empirical research conducted since the passage of Jacob’s Law has cast increasing doubt on all of those premises.  For starters, “the assumption that sex offenders are at high risk of recidivism has always been false and continues to be false,” said Melissa Hamilton, an expert at the University of Houston Law Center, pointing to multiple studies over the years.  “It’s a myth.”

Remarkably, while polls show the public thinks a majority, if not most, sex offenders will commit multiple sex crimes, most studies, including one by the Department of Justice, place the sexual recidivism rate between 3 and 14 percent in the several years immediately following release, with those numbers falling further over time.  Which number experts prefer within that range depends on how they define recidivism.  If you count arrests as well as convictions, for example, the rate is higher, because not all arrests lead to convictions.  And if you distinguish among sex offenders based on risk factors, such as offender age, degree of sexual deviance, criminal history, and victim preferences — instead of looking at them as a homogenous group — you may find a higher or lower rate.  Rapists and pedophiles who molest boys, for example, are generally found to have the highest recidivism rates.  Nevertheless, the bottom line is clear: Recidivism rates are lower than commonly believed.

And in contradiction of the drive to crack down after a random act of sexual violence committed by a stranger, the data also shows that the vast majority of sex offenses are committed by someone known to the victim, such as a family member....

In a series for Slate, we’ll spotlight three areas in which the growth of registries has been unexpected — and, we suggest, unwise.

August 12, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (15) | TrackBack

Sunday, August 10, 2014

Can wine fraudster reasonably whine that his sentence was not reduced given wealth of victims?

FakewineThe question in the title of this post is prompted by this intriguing AP sentencing story about a guy who tried to get rich by selling very expensive (and sometimes fake) wine before its time to some very rich folks:

A collector was sentenced to 10 years in prison in New York Thursday for making bogus vintage wine in his California kitchen, and selling it for millions of dollars. In sentencing Rudy Kurniawan, 37, Manhattan U.S. District Judge Richard M. Berman said he wanted to send a message to others who might tamper with what people eat and drink. “The public at large needs to know our food and drinks are safe — and not some potentially unsafe homemade witch’s brew,” Berman said as he announced the prison term for Kurniawan. He also ordered him to forfeit $20 million and pay $28.4 million in restitution.

Kurniawan, an Indonesian citizen of Chinese descent, lowered his head as the judge explained the sentence and described Kurniawan’s quest as a “bold, grandiose, unscrupulous but destined-to-fail con.” Assistant U.S. Attorney Stanley Okula described Kurniawan as the “kingpin of counterfeiters,” a man who turned his Arcadia home into a laboratory where he poured wine into what appeared to be vintage bottles before attaching elegant fake labels and selling them for tens of millions of dollars.

“He did it to line his own pockets,” Okula told Berman, who concluded that Kurniawan had caused losses close to $30 million, primarily to seven victims. One of them was William Koch, a billionaire yachtsman, entrepreneur and wine investor. Koch testified at Kurniawan’s December trial, when Kurniawan was convicted of mail and wire fraud.

Before he was sentenced, Kurniawan twice apologized, saying “I’m really sorry” and expressing a desire to take care of his mother, who lives in California after receiving asylum....

His lawyer, Jerome H. Mooney, asked for leniency, saying his client got swept up in the thrill of mixing with California’s wealthiest people. “He was insecure, very insecure,” Mooney said. “He wanted to be them. He wanted to be part of it.”

Mooney said Kurniawan used some of his family’s fortune to buy $40 million of wine, eventually selling $36 million of it before he realized he could develop a business in which he created mixtures that tasted like the world’s greatest wines. He said Kurniawan’s victims were wealthy and aware that counterfeit wines were a frequent occurrence in the marketplace. “Nobody died. Nobody lost their savings. Nobody lost their job,” he said. The lawyer said the 2 1/2 years Kurniawan has served in prison was enough penalty, since he had lost everything and been branded a cheat.

Okula called the defense lawyer’s comments “quite shocking,” especially when he suggested that Kurniawan should get lenient treatment because he ripped off rich people rather than the poor. “Fraud is fraud,” he said.

Kurniawan was a connoisseur of counterfeiting who mastered label making, cork stamping, bottle waxing and recorking to create fake bottles of wine. Federal prosecutors said Kurniawan turned his California home into a wine factory. Restaurants sent him empty wine bottles, then he mixed together cheap wine and rebottled it as vintage wine. He also borrowed money against his collection of fake wines and owes a New York bank several million dollars....

For example, Kurniawan phonied up two bottles of 1934 Romanee-Conti and sold them for $24,000. A fake double-magnum of 1947 Chateau Petrus was auctioned for $30,000. “He made blends,” Downey said. “He was like a mad scientist.” But he made mistakes that raised eyebrows in the world of fine wine. Kurniawan put up for auction bottles of Clos Saint-Denis from the 1940s and 1950s even though the winery didn’t start producing that appellation until the 1980s.

August 10, 2014 in Offense Characteristics, White-collar sentencing | Permalink | Comments (9) | TrackBack

Monday, August 04, 2014

Sixth Circuit reverses federal forced labor conviction based on ordering kids to do household chores

The Sixth Circuit this morning handed down a fascinating ruling in a case which reinforces my fear that that modern federal prosecutors may often have too much discretionary criminal justice power as well as my optimism that a wise modern judiciary can and will often play a critical role in checking that power.  The unanimous panel opinion in US v. Toviave, No. 13-1441 (6th Cir. Aug. 4, 2014) (available here), starts and ends this way:

Child abuse is a state crime, but not a federal crime. Forced labor is a federal crime, 18 U.S.C. § 1589, but the statute obviously does not extend to requiring one’s children to do their homework, babysit on occasion, and do household chores. Only by bootstrapping can this combination of two actions that are not federal crimes — child abuse and requiring children to do household chores — be read as a federal crime.

Defendant Toviave brought four young relatives from Togo to live with him in Michigan. After they arrived, Toviave made the children cook, clean, and do the laundry.  He also occasionally made the children babysit for his girlfriend and relatives.  Toviave would beat the children if they misbehaved or failed to follow one of Toviave’s many rules.  While his actions were deplorable, Toviave did not subject the children to forced labor.  The mere fact that Toviave made the children complete chores does not convert Toviave’s conduct — what essentially amounts to child abuse — into a federal crime.  Toviave’s federal forced labor conviction must accordingly be reversed....

[V]ictims in the other [discussed forced labor] cases were denied almost all contact with the outside world.  The evidence in this case shows that the children attended school, spent time with relatives and Toviave’s friends, engaged in recreational activities, and went on vacations with Toviave.  The children also interacted with teachers, classmates, and teammates on sports teams.  Viewing the evidence favorably to the government, it is true that the children probably did not have the same freedom as many other children.  For example, Toviave did not let the children have friends over, go to sleep-overs, or freely use the phone.  But their isolation was not nearly as severe as the victims in other forced labor cases.  Finally, we have found no other cases where the government convicted a victim’s relative of forced labor.  This absence is likely explained by the difficulty of drawing a line between what amounts to forced labor and what are widely accepted childrearing practices in the context of a familial relationship where the labor at issue consists entirely of household chores.

The line between required chores and forced labor may be a fine one in some circumstances, but that cannot mean that all household chores are forced labor, with only the discretion of prosecutors protecting thoughtful parents from federal prosecution.  The facts of this case fall on the chores side of the line.

Because the Government did not present sufficient evidence of forced labor, we need not reach the other issues in this case.  Toviave’s convictions for forced labor are REVERSED.

August 4, 2014 in Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Saturday, August 02, 2014

"Swift, Certain, and Fair Punishment — 24/7 Sobriety and Hope: Creative Approaches to Alcohol- and Illicit Drug-Using Offenders"

The title of this post is the title of this notable new article by Paul Larkin of The Heritage Foundation available via SSRN.  Here is the abstract:

Local and state government officials in South Dakota and Hawaii have implemented a creative way to address some of the problems stemming from alcohol and drug use. The South Dakota 24/7 Sobriety program and Hawaii’s Opportunity Probation with Enforcement (HOPE) project seek to deal with those problems by combining an old criminological theory with modern technological devices.  Criminologists, both old and contemporary, have believed that the certainty and celerity of punishment are more effective components of deterrence than is the severity of a penalty.  In fact, anyone who has been a parent will tell you that the swift and certain use of a mild or moderate punishment is far more likely to deter unwanted conduct than the threat of an infrequently used severe punishment imposed at some point down the road.

South Dakota and Hawaii have developed innovative programs to deal with substance use and noncompliance with the conditions of supervision.  Both programs address this problem. Starting from the proposition that certainty and celerity are more important than severity when measuring the effectiveness of punishment and using a rigorous alcohol-testing regimen, South Dakota has made strides toward the reduction of problem drinking and the attendant harms that it can produce.  Hawaii has independently developed and followed a similar approach to the use of drugs and crime, subjecting certain offenders to rigorous, random drug urinalysis punished by the certain imposition of a modest stint in jail for those who fail the required tests. Those creative approaches are worth serious consideration as an effective and humane means of addressing the grim problems that alcohol- and drug-abusers pose for victims and society.

August 2, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack

"Cougar caged: Public sex nets woman, 68, six months in the slammer"

The title of this post is the irrestistable sentencing headline from this Sun-Sentinel article discussing a recent Florida sentencing.  (This Huffington Post article on the same case went with this headline: "Grandma Will Spend 6 Months In Jail For Public Sex.") Here are the randy details via the HuffPo piece:

A married grandma of 14 faces six months behind bars after she had public sex with a man who was not her husband at a public pavilion in Florida. Peggy Klemm, 68, and her 49-year-old copulation co-conspirator, David Bobilya, were sentenced Wednesday after their romp at Lake Sumter Landing Market Square, Click Orlando reports. Apparently, a retirement community there called The Villages, which houses 100,000 people, is known for its wild nights, $3.75 cocktails and public sex.

Klemm likely got arrested because she was on probation for a previous reckless driving charge, the Daily Mail reports. She was slapped with six months in jail when she took a plea deal for the public sex. Klemm and Bobilya were caught with their pants around their ankles having sex against the Bait Shack hut at 10:30 p.m. on June 12.

She stood in front of a judge on Wednesday and mouthed "I love you" to her husband of 50 years, Frank Klemm, who stood beside her despite the philandery. "She is a super woman as far as I'm concerned," he told Click Orlando. "And she deserves a second chance. That's all I have to say."

She apologized through tears as she walked out of court. She'll get credit for time served and has 135 days left to her sentence. Bobilya is also serving a six-month sentence.

UPDATE: I am intrigued and pleased (I think) that a commentor claiming to be this defendant's child has written about the case in the comments and provided this link to a website about the defendant's situation.  Proof yet again that there are multiple sides to every criminal justice story.

August 2, 2014 in Offender Characteristics, Offense Characteristics | Permalink | Comments (8) | TrackBack

Thursday, July 31, 2014

Sixth Circuit panel finds one-day prison sentence unreasonable for white-collar defendant

The Sixth Circuit today has reinforced its reputation as one of the circuits most likely to declare a below-guideline sentence unreasonable with a unanimous panel ruling in US v. Musgrave, No. 13-3872 (6th Cir. July 31, 2014) (available here).  Because post-Booker appellate sentence reversals are rare, this relatively short opinion is a must read for everyone who following federal sentencing law and policy closely.  In addition, at a time when debates over white-collar sentencing rules and practices remain hot, all those who follow white-collar crime and punishment will want to be sure to check out this opinion as well.

Here is how the Musgrave opinion starts and finishes:

A jury found Paul Musgrave guilty of one count of conspiracy to commit wire and bank fraud and to make false statements to a financial institution; two counts of wire fraud; and one count of bank fraud.  The district court sentenced him to one day of imprisonment with credit for the day of processing — a downward variance from his Guidelines range of 57 to 71 months’ imprisonment and below the government’s recommendation of 30 months’ imprisonment.  On appeal, the government asserts that Musgrave’s one-day sentence is substantively unreasonable.  For the following reasons, we vacate the district court’s sentence and remand for resentencing....

A defendant’s sentence must reflect the seriousness of the offense, promote respect for the law, and provide just punishment. 18 U.S.C. § 3553(a)(2).  In imposing a sentence, the district court must explain, based on permissible considerations, how its sentence “‘meshe[s] with Congress’s own view of the crimes’ seriousness.’” United States v. Peppel, 707 F.3d 627, 635 (6th Cir. 2013) (quoting United States v. Davis, 537 F.3d 611, 617 (6th Cir. 2008)).  The collateral consequences of the defendant’s prosecution and conviction are “impermissible factors” when fashioning a sentence that complies with this directive.  Peppel, 707 F.3d at 636.  A district court’s reliance on these factors “does nothing to show that [the defendant’s] sentence reflects the seriousness of his offense. Were it otherwise, these sorts of consequences— particularly ones related to a defendant’s humiliation before his community, neighbors, and friends—would tend to support shorter sentences in cases with defendants from privileged backgrounds, who might have more to lose along these lines.” United States v. Bistline, 665 F.3d 758, 765–66 (6th Cir. 2012).  Thus, when a district court varies downward on the basis of the collateral consequences of the defendant’s prosecution and conviction, the defendant’s sentence will not reflect the seriousness of the offense, nor will it provide just punishment.  See Peppel, 707 F.3d at 636; Bistline, 665 F.3d at 765–66.

Impermissible considerations permeated the district court’s justification for Musgrave’s sentence.  In imposing a sentence of one day with credit for the day of processing, the district court relied heavily on the fact that Musgrave had already “been punished extraordinarily” by four years of legal proceedings, legal fees, the likely loss of his CPA license, and felony convictions that would follow him for the rest of his life.  “[N]one of these things are [his] sentence.  Nor are they consequences of his sentence”; a diminished sentence based on considerations does not reflect the seriousness of his offense or effect just punishment.  Bistline, 665 F.3d at 765.  On remand, the district court must sentence Musgrave without considering these factors....

In the context of white-collar crime, we have emphasized that “it is hard to see how a one-day sentence” would “serve the goals of societal deterrence.” Davis, 537 F.3d at 617.  “‘Because economic and fraud-based crimes are more rational, cool, and calculated than sudden crimes of passion or opportunity, these crimes are prime candidates for general deterrence.’” Peppel, 707 F.3d at 637 (quoting United States v. Martin, 455 F.3d 1227, 1240 (11th Cir. 2006)); see also Davis, 537 F.3d at 617.

Consideration of general deterrence is particularly important where the district court varies substantially from the Guidelines.  See, e.g., Aleo, 681 F.3d at 300 (explaining that the greater the variance, the more compelling the justification based on the § 3553(a) factors must be).  This is even truer here, given that the crimes of which Musgrave was convicted are especially susceptible to general deterrence and the fact that there is a general policy favoring incarceration for these crimes.  Indeed, “[o]ne of the central reasons for creating the sentencing guidelines was to ensure stiffer penalties for white-collar crimes and to eliminate disparities between white-collar sentences and sentences for other crimes.” Davis, 537 F.3d at 617.  More importantly, Congress understood white-collar criminals to be deserving of some period of incarceration, as evidenced by its prohibition on probationary sentences in this context.  Id.  Where a district court’s view of a particular crime’s seriousness appears at odds with that of Congress and the Sentencing Commission, we expect that it will explain how its sentence nevertheless affords adequate general deterrence.  Id.; Camiscione, 591 F.3d at 834.  The district court failed to do so here.

Musgrave must be resentenced.  The district court relied on impermissible considerations and failed to address adequately how what amounted to a non-custodial sentence afforded adequate general deterrence in this context. Nevertheless, it bears repeating that “[w]hile appellate courts retain responsibility for identifying proper and improper sentencing considerations after Booker, it is not our task to impose sentences in the first instance or to second guess the individualized sentencing discretion of the district court when it appropriately relies on the § 3553(a) factors.”  Davis, 537 F.3d at 618 (citing United States v. Vonner, 516 F.3d 382, 392 (6th Cir. 2008) (en banc)). The district court’s sentence is vacated, and the case is remanded for the district court, in its discretion, to impose a sentence sufficient but not greater than necessary to serve the § 3553(a) factors.

I view the main message of this Musgrave case, along with other cited cases in which the Sixth Circuit has reversed similar one-day sentences on appeal, that the Sixth Circuit generally believe that at least a short period of incarceration is nearly essential for any serious crime for which the guidelines recommend years of incarceration even if the defendant is a relatively sympathetic first offender not likely to re-offend.

July 31, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (0) | TrackBack

Monday, July 28, 2014

US District Judge Gleeson prods prosecutors to undo stacked gun counts and then praises effort to do justice

VACATEweb-master675Regular readers are likely familiar with the remarkable series of opinions issued by US District Judge John Gleeson in which he has forcefully expressed deep concerns with how federal prosecutors sometimes exercise their charging and bargaining powers in the application of mandatory minimum sentencing provisions. But, as reported in this New York Times piece, headlined "Citing Fairness, U.S. Judge Acts to Undo a Sentence He Was Forced to Impose," Judge Gleeson's latest opinion discusses how federal prosecutors ultimately aided his efforts to undo an extreme mandatory minimum sentence. Here are the basics:

Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts. But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.

As Mr. Holloway filed one motion after another trying to get his sentence and his case re-evaluated, Judge Gleeson, of Federal District Court in Brooklyn, began to speak out against those mandatory sentences that he believed were unduly harsh. Mr. Holloway’s 57-year term was more than twice the average sentence in the district for murder in 1996, the year he was sentenced.

More recently, Judge Gleeson began his own campaign on Mr. Holloway’s behalf, writing to Loretta E. Lynch, who is the United States attorney for the Eastern District of New York, to request that she vacate two of Mr. Holloway’s convictions. The payoff from Judge Gleeson’s efforts will be apparent on Tuesday in a highly unusual hearing, when the judge is expected to resentence Mr. Holloway, who is 57, to time served.

“Prosecutors also use their power to remedy injustices,” Judge Gleeson wrote in a memorandum released on Monday. “Even people who are indisputably guilty of violent crimes deserve justice, and now Holloway will get it.”...

Mr. Holloway was charged in 1995 with three counts of carjacking and using a gun during a violent crime (even though it was an accomplice, and not Mr. Holloway, who carried the gun), along with participating in the chop shop. The government offered him a plea deal of about 11 years. He turned it down after his lawyer assured him he could win at trial. Mr. Holloway did not win.

For the first conviction on the gun count, the law required Mr. Holloway to receive five years. But for the second and third convictions, the law required 20 years for each one, served consecutively, a requirement known as “stacking,” which some judges and lawyers argue sounds like a recidivism provision, although it can be applied for crimes, like Mr. Holloway’s, committed hours apart that are part of the same trial.

None of Mr. Holloway’s co-defendants, who all pleaded guilty, received more than six years. At Mr. Holloway’s sentencing in 1996, Judge Gleeson said that “by stripping me of discretion,” the stacked gun charges “require the imposition of a sentence that is, in essence, a life sentence.” (The remainder of the 57 years was the 12 years required for the three carjackings.)...

At a hearing on the Holloway case this month, an assistant United States attorney, Sam Nitze, said that “this is both a unique case and a unique defendant,” citing his “extraordinary” disciplinary record and his work in prison. Also, he said, three of Mr. Holloway’s carjacking victims have said that the 20 years that Mr. Holloway had served in prison was “an awfully long time, and people deserve another chance.” Mr. Nitze agreed to vacate the two convictions, while emphasizing that this should not be taken as indicative of Ms. Lynch’s view on the stacking provision in other cases.

In his opinion issued last week, Judge Gleeson said that Mr. Holloway’s sentence illustrated a “trial penalty,” where those willing to risk trial could be hit with mandatory minimum sentences “that would be laughable if only there weren’t real people on the receiving end of them.”

Judge Gleeson's full 11-page opinion in Holloway v. US, No. 01-CV-1017 (E.D.N.Y. July 28, 2014)(available for download below), is a must-read for lots of reasons. The opinion is not be easily summarized, but this part of its conclusion provide a flavor of what comes before:

It is easy to be a tough prosecutor. Prosecutors are almost never criticized for being aggressive, or for fighting hard to obtain the maximum sentence, or for saying “there’s nothing we can do” about an excessive sentence after all avenues of judicial relief have been exhausted. Doing justice can be much harder. It takes time and involves work, including careful consideration of the circumstances of particular crimes, defendants, and victims – and often the relevant events occurred in the distant past. It requires a willingness to make hard decisions, including some that will be criticized.

This case is a perfect example. Holloway was convicted of three armed robberies. He deserved serious punishment. The judgment of conviction in his case was affirmed on direct review by the Supreme Court, and his collateral attack on that judgment failed long ago. His sentence was far more severe than necessary to reflect the seriousness of his crimes and to adequately protect the community from him, but no one would criticize the United States Attorney if she allowed it to stand by doing nothing.  By contrast, the decision she has made required considerable work. Assistant United States Attorney Nitze had to retrieve and examine a very old case file. He had to track down and interview the victims of Holloway’s crimes, which were committed 20 years ago. His office no doubt considered the racial disparity in the use of § 924(c), and especially in the “stacking” of § 924(c) counts.  He requested and obtained an adjournment so his office could have the time necessary to make an extremely important decision....

This is a significant case, and not just for Francois Holloway. It demonstrates the difference between a Department of Prosecutions and a Department of Justice. It shows how the Department of Justice, as the government’s representative in every federal criminal case, has the power to walk into courtrooms and ask judges to remedy injustices....

A prosecutor who says nothing can be done about an unjust sentence because all appeals and collateral challenges have been exhausted is actually choosing to do nothing about the unjust sentence. Some will make a different choice, as Ms. Lynch did here.

Numerous lawyers have been joining pro bono movements to prepare clemency petitions for federal prisoners, and indeed the Department of Justice has encouraged the bar to locate and try to help deserving inmates. Those lawyers will find many inmates even more deserving of belated justice than Holloway.  Some will satisfy the criteria for Department of Justice support, while others will not.  In any event, there’s no good reason why all of them must end up in the clemency bottleneck.  Some inmates will ask United States Attorneys for the kind of justice made possible in this case, that is, justice administered not by the President but by a judge, on the consent of the Department of Justice, in the same courtroom in which the inmate was sentenced.  Whatever the outcome of those requests, I respectfully suggest that they should get the same careful consideration that Ms. Lynch and her assistants gave to Francois Holloway.

Download Holloway Memo FILED 7-28-14

July 28, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Sunday, July 27, 2014

"Grace Notes: A Case for Making Mitigation the Heart of Noncapital Sentencing"

The title of this post is the title of this notable new article by Miriam Gohara that I just came across via SSRN.  Here is the abstract:

Investigation and presentation of comprehensive life history mitigation is at the heart of successful capital litigation that has contributed to a steady decline in capital sentences. Noncapital incarceration rates have also begun to level, and various legal developments have signaled a re-ascent of more individualized noncapital sentencing proceedings.  This return to individualized sentencing invites consideration of whether life history mitigation may, as it has in capital cases, hasten a turn away from mostly retributive punishment resulting in disproportionately harsh noncapital sentencing to a more merciful rehabilitative approach.  The robust capital mitigation practice required by today's prevailing professional capital defense norms developed following the Supreme Court's Eighth Amendment doctrine requiring individualized capital sentences that account for the unique characteristics of the offender. No such doctrinal imperative applies to noncapital sentencing. As a result, professional noncapital defense sentencing standards, while providing a general basis for various aspects of sentencing advocacy, remain relatively underdeveloped, though the same bases for ameliorating punishment in capital cases should apply with equal practical force to noncapital cases.

At the same time, institutional and doctrinal barriers -- including high caseloads and lack of resources, the prevalence of plea bargaining, and the Supreme Court's “death is different” precedent -- present formidable challenges to routine presentation of life history mitigation in noncapital cases.  Therefore, the regular presentation of life history mitigation, lacking a constitutional mandate and operating in a structure different from that of capital sentencing, will depend in the immediate term on the initiative of criminal defense lawyers with the will to consistently present it in noncapital cases.  A more widespread adoption of comprehensive noncapital mitigation practice will benefit individual clients, change the expectations of sentencing courts concerning what information they should have available before ordering punishment, and provide insight into the social causes of various types of crimes.  Over time, as it has in capital cases, familiarity with the mitigating force of social history may serve as a powerful basis for empathy and amelioration of overly punitive noncapital punishment.

July 27, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, July 14, 2014

"Moneyball Sentencing"

The title of this post is the great title of this interesting-looking new article by Dawinder Sidhu now available via SSRN. Here is the abstract:

Sentencing is a backward- and forward-looking enterprise. That is, sentencing is informed by an individual’s past conduct as well as by the criminal justice system’s prediction of the individual’s future criminal conduct.  Increasingly, the criminal justice system is making these predictions on an actuarial basis, computing the individual’s risk of recidivism according to the rates of recidivism for people possessing the same group characteristics (e.g., race, sex, socio-economic status, education).  The sentencing community is drawn to this statistical technique because it purportedly distinguishes with greater accuracy the high-risk from the low-risk, and thereby allows for a more efficient allocation of sentencing resources, reserving incarceration for the truly dangerous and saving the low-risk from needless penal attention.

Despite these asserted benefits, risk-assessment tools are exogenous to the theories of punishment, the very foundation for sentencing in Anglo-American jurisprudence.  This Article reviews the legality and propriety of actuarial predictive instruments, using these theories and governing constitutional and statutory law as the touchstone for this analysis.  This Article then applies these normative and legal principles to seventeen major characteristics that may comprise an offender’s composite risk profile.  It argues that risk-assessment instruments are problematic for three reasons: they include characteristics that are prohibited by constitutional and statutory law; subject the individual to punishment for characteristics over which the individual has no meaningful control; and presume that the individual is a static entity predisposed, if not predetermined, to recidivate, thereby undermining individual agency and betting against the individual’s ability to beat the odds.

July 14, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3) | TrackBack

Are federal drug sentences for mules now too short?

Drugs and dogsThe question in the title of this post is prompted by this notable and fascinating new article in the New York Times headlined "Second Thoughts on Lighter Sentences for Drug Smugglers." Here are excerpts:

For years, a steady parade of drug smugglers have tried all sorts of ways to ferry contraband into the United States through Kennedy International Airport in Queens, posing a challenge not only to Customs and Border Protection officers, but also to federal prosecutors.

To avoid clogging up the court, the United States attorney’s office in Brooklyn has embraced a strategic approach that allows couriers to plead guilty and offer information in return for lighter sentences.  The policy reflected a view among many prosecutors that the mandatory minimum sentences for drug-related offenses — which require prison terms of five years and higher in these smuggling cases — were too harsh on defendants who were typically nonviolent and disadvantaged.

But in recent months, changes in drug sentencing have served to further lower punishments for these couriers.  A year ago, drug couriers regularly faced three years in prison; now they might face guidelines starting at only a few months, or no prison time at all.

The changes are raising questions of whether the pendulum has swung too far.  Some prosecutors say that couriers have little to no incentive to cooperate anymore.  Border patrol officials grumble that they are working to catch smugglers, only to have them face little punishment.  And judges who once denounced the harsh sentencing guidelines are now having second thoughts....

The debate over what constitutes a fair sentence for drug crimes has persisted for decades.  Critics — many of them judges in this court — have said that sentencing guidelines and mandatory minimum punishments had become hugely problematic. Nonviolent drug offenders, like couriers or people selling marijuana on the street, could face longer guideline sentences than an underground gun dealer.  And until recently, possession of five grams of crack warranted a minimum five-year sentence.  To get the same sentence for powdered cocaine possession, 500 grams would be required.

Various reforms have been instituted to address the inequities in sentencing.  In 1994, a “safety valve” provision allowed nonviolent first offenders on drugs — which describes most couriers — to avoid mandatory minimums if they admitted to all prior criminal conduct.  And in 2010, Congress passed legislation toward balancing the crack versus cocaine disparity....

In August, the United States attorney general, Eric H. Holder Jr., ordered prosecutors nationwide to charge couriers and other low-level drug offenders who met certain criteria in a way that did not result in mandatory-minimum sentences.  (Guideline sentences must still be considered, but they are not mandatory.)

Then, in April, the United States Sentencing Commission voted to reduce sentencing guidelines for drug crimes by two points, or several months.  The reduced guidelines go into effect in November, pending congressional approval, but prosecutors in many districts have agreed to apply them now.

The changes made things more difficult in Brooklyn, where prosecutors still wanted to give low-level couriers an incentive to avoid trials and to assist in prosecutions against larger drug distributors. Believing they had to further sweeten the deal, prosecutors agreed to give an additional four points off those reduced sentences for couriers who agreed to cooperate.

As a result, drug-courier defendants can now face sentencing guidelines that suggest no prison time.

My first reaction to this piece is to suggest that it's a nice change of pace for federal judges to now view at least some federal sentencing guidelines to be too lenient and that any problems this creates can and should be addressed through judicial discretion to sentence above the guidelines, case-by-case, as needed and appropriate.  But I imagine this viewpoint is not very satisfying for federal prosecutors and investigators who depend on the threat of severe sentences to get mules to cooperate to their satisfaction.

For additional intriguing and diverse reactions to these intriguing new drug sentencing realities, check out these posts from other informed bloggers:

July 14, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Sunday, July 06, 2014

Interesting account of guidelines accounting facing former NOLA mayor at upcoming federal sentencing

This lengthy local article, headlined "Emotions aside, Nagin sentence likely to come down to math," effectively reviews some of the guideline (and other) factors likely to impact the federal sentencing of former New Orleans mayor Ray Nagin this coming week.  Here are excerpts:

Under the rules, Nagin starts with a base “offense level” of 20 because he was an elected official who took multiple bribes but otherwise has no criminal history — facts that, with the jury verdict, are now undisputed.

The other major factors that will add points to his offense level include the financial “loss” the court assigns to his actions, the court’s judgment as to whether he was an “organizer or leader” in “criminal activity” that involved at least five people, and whether Nagin is found to have obstructed justice by lying to investigators and to the court.

There is some gray area in all of these questions. For instance, the monetary loss can be calculated to include not only bribes paid and received, but also the proceeds of any contracts that resulted from bribes. At a minimum, however, Berrigan will almost certainly find that the loss was greater than $200,000, as the jury convicted Nagin of taking more than that amount in bribes. That would bring his offense level to 32, but it could go significantly higher depending on whether Berrigan decides to include the profits of some or all of the contracts Nagin signed....

Experts say the question of financial loss is among the thorniest in calculating guidelines. The amount of bribes paid is an imperfect measure, for contracts awarded on the basis of bribes are presumed to be inflated to cover the cost of the payoffs. At the same time, the contractor usually completes the work outlined in the contract, making it unfair to count the entire value of the contract as a loss. In Nagin’s trial, the government did not present evidence to show that those who bribed Nagin failed to perform....

Other questions are similarly nuanced. If Berrigan finds Nagin obstructed justice by lying to investigators and to the jury, as prosecutors say he did on more than 25 occasions, the offense level would jump another two points. And if she finds he took a leadership role in a scheme involving five or more people, that would add as many as four more points. Though it’s clear that Nagin’s criminal conduct involved more than five people, experts say there may be wiggle room in that question, too....

Depending on how the judge rules on those questions, Nagin’s final offense level could be as low as 32, or as high as 40 or more. Based on those numbers, the guidelines would call for a sentence ranging from 10 years at the low end to as much as 30 years or even life. A filing by Nagin’s lawyer, Robert Jenkins, suggests that probation officers came up with an offense level of 38, which translates to a range of 20 to 24 years.

Jenkins asked Berrigan to consider a downward departure from that figure based on Nagin’s lack of a criminal history and an argument that the crimes of which he was convicted constituted “aberrant” behavior for an otherwise upstanding citizen. But prosecutor Matt Coman argued in an opposing motion that the guidelines already take into account the mayor’s unblemished past, which they do. Meanwhile, Coman said it was laughable to consider Nagin’s criminal conduct as an aberration, considering that he was convicted of multiple bribery and fraud schemes that unfolded over a period of years....

Apart from applying her own analysis of the guidelines, Berrigan also has some ability to go outside the recommended range, experts said. She could grant a “downward variance” on some basis she deems appropriate, provided that she explains it and the variance is not too great. Federal law spells out a number of factors a judge may consider, from the need to protect the public from further crimes to the deterrent effect of the sentence.

July 6, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Sunday, June 29, 2014

Two new examinations of white-collar prosecutions and punishment schemes

Lucian Dervan has recently posted two notable new articles on white-collar crime and punishment on SSRN.  Here are links to both articles and their abstracts:

The Quest for Finality: Five Stories of White Collar Criminal Prosecution

Abstract: In this symposium article, Professor Dervan examines the issue of finality and sentencing. In considering this issue, he argues that prosecutors, defendants, and society as a whole are drawn to the concept of finality in various ways during criminal adjudications.  Further, far from an aspirational summit, he argues that some outgrowths of this quest for finality could be destructive and, in fact, obstructive to some of the larger goals of our criminal justice system, including the pursuit of truth and the protection of the innocent.

Given the potential abstraction of these issues, Professor Dervan decided to discuss the possible consequences of our quest for finality through examination of specific cases.  Therefore, the article examines five stories of white collar criminal prosecution.  The five stories are ones in which the players sought to achieve finality in different ways and in which finality came in different forms. Despite their differences, however, the stories do share important commonalities.

First, the stories demonstrate that we must be careful not to value finality over accuracy.  As an example, though plea bargaining offers both the prosecution and the defense a mechanism by which to reach sentencing finality, it must not be used to mask unfounded criminal cases or offer overpowering incentives to innocent defendants to falsely confess in return for a promise of leniency.  Second, the stories remind us that the government must be careful not to confuse achieving a victorious sentencing finality with achieving a just one.  Too often today, the government proceeds after indictment as though winning a sentence at any cost is worth any price.  Third, the stories reveal that, in many ways, the quest for true finality in criminal cases is fleeting.  While we have long been aware of the lingering collateral consequences present even after a sentence is concluded, we now must also recognize that even those who are acquitted face significant collateral consequences from indictment itself.

White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence

AbstractOvercriminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of this phenomenon by examining two types of overcriminalization prevalent in white collar criminal law. The first type of over criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly while simultaneously deterring others.  The second type of overcriminalization addressed is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the tools available to prosecutors, increase the number of financial criminals prosecuted each year, and deter potential offenders.  While these new provisions are not the most egregious examples of the overcriminalization phenomenon, they are important to consider due to their impact on significant statutes.  In fact, they typically represent some of the most commonly charged offenses in the federal system.

Through examination of the Sarbanes-Oxley Act of 2002 and examples of these two types of over criminalization within that law, this article seeks to understand whether new crimes and punishments really achieve their intended goals and, if not, what this tells us about and means for the over criminalization debate and the criminal justice system as a whole.

June 29, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Friday, June 27, 2014

New York Times op-ed laments Kettle Falls 5 federal marijuana prosecution

Kettle_falls_signI am pleased to see the op-ed pages of the New York Times giving attention to a remarkable federal drug prosecution mving forward in Washington state.  This foreceful commentary by Timothy Egan, headlined "Lock ’Em Up Nation: Mandatory Sentencing for Medical Marijuana," includes these passages:

[In] ruggedly beautiful, financially struggling eastern third of Washington State ... 70-year-old Larry Harvey, his wife, two family members and a friend are facing mandatory 10-year prison terms for growing medical marijuana — openly and, they thought, legally — on their farm near the little town of Kettle Falls.

To get a sense of the tragic absurdity of this federal prosecution, reaching all the way to the desk of Attorney General Eric H. Holder Jr., consider what will happen next month. Pot stores will open in Washington, selling legal marijuana for the recreational user — per a vote of the people. A few weeks later, the Feds will try to put away the so-called Kettle Falls Five for growing weed on their land to ease their medical maladies....

Harvey is a former long-haul truck driver with a bad knee, spasms of gout and high blood pressure. He says he has no criminal record, and spends much of his time in a wheelchair. His wife, Rhonda Firestack-Harvey, is a retired hairdresser with arthritis and osteoporosis. Mr. Harvey says he takes his wife’s home-baked marijuana confections when the pain in his knee starts to flare. The Harveys thought they were in the clear, growing 68 marijuana plants on their acreage in northeast Washington, one of 22 states allowing legal medical marijuana. (Federal authorities say they are several plants over the limit.)

Their pot garden was a co-op among the four family members and one friend; the marijuana was not for sale or distribution, Mr. Harvey says. “I think these patients were legitimate,” Dr. Greg Carter, who reviewed medical records after the arrest, told The Spokesman-Review of Spokane. “They are pretty normal people. We’re not talking about thugs.”

But the authorities, using all the military tools at their disposal in the exhausted drug war, treated them as big-time narco threats. First, a helicopter spotted the garden from the air. Brilliant, except Harvey himself had painted a huge medical marijuana sign on a plywood board so that his garden, in fact, could be identified as a medical pot plot from the air.

This was followed by two raids. One from eight agents in Kevlar vests. The other from Drug Enforcement Agency officers. They searched the house, confiscating guns, and a little cash in a drawer. The guns are no surprise: Finding someone who does not own a firearm in the Selkirk Mountain country is like finding a Seattleite who doesn’t recycle. Still, the guns were enough to add additional federal charges to an indictment that the family was growing more than the legal limit of plants.

Now, let’s step back. The Harveys live in the congressional district of Representative Cathy McMorris Rodgers, who is part of the House Republican leadership. She loves freedom. You know she loves freedom because she always says so, most recently in a press release touting her efforts to take away people’s health care coverage. “Americans must be protected from out of control government,” she stated.

Well, maybe. Unless that government is trying to take away the freedom of a retired couple growing pot to ease their bodily pains. That freedom is not so good. Astonishingly, in our current toxic political atmosphere, Republicans and Democrats joined together last month to vote, by 219 to 189, to block spending for federal prosecution of medical marijuana in states that allow it. Yaayyy, for freedom. There was one dissent from Washington State’s delegation. Yes, Cathy McMorris Rodgers, standing firm for an out of control government instead of defending one of her freedom-loving constituents....

Trial is set for July 28, and the Harveys can’t use legal medical marijuana as a defense, a judge has ruled. All the government has to prove is that the Harvey family was growing marijuana — a federal crime. If they go to prison for a decade, as the mindless statutes that grew out of the crack-cocaine scare stipulate, they would become part of a federal system where fully half of all inmates are behind bars for drug offenses. And one in four of those crimes involves marijuana.

So remember the Kettle Falls Five when all the legal pot stores and their already legal growing facilities open for business in Washington State next month. There will be silly features about cookies and candy bars laced with pot, and discussions about etiquette, dos and don’ts. The press will cite polls showing that a majority of Americans favor legalizing marijuana, and more than 80 percent feel that way about medical cannabis. But in the eyes of the federal government, these state laws are meaningless.

If Larry Harvey, at the age of 70, with his gout and high blood pressure and bum knee, gets the mandatory 10-year term, he’s likely to die in prison, certainly not the last casualty of the assault on our citizens known as the War on Drugs. For him, freedom is just another word his congresswoman likes to throw around on the Fourth of July.

As I have said before and will be saying again and again as more and more states legalize medical marijuana, there are a number of viable constitutional arguments based in the Eighth Amendment that I think could and should limit the federal prosecution and extreme federal sentencing of defendants like the Kettle Falls 5. I hope these defendants press these arguments aggressively and persistently in the months ahead.

In addition, I am pleased that this op-ed calls out Cathy McMorris Rodgers for failing to be eager to support and defend freedom and family values in this context.  Rep. Rodgers says on her official website here that she has a "passion and determination to protect America’s values -- including family, faith, freedom, opportunity, and responsibility."   I hope she gets often pressed on how these values justify the federal government seeking to imprison the Kettle Falls 5 for many years.

Prior related post:

June 27, 2014 in Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack