Tuesday, September 30, 2014
What should be made of the tough prosecution/punishment trend for animal abuse?
The question in the title of this post is prompted by this front-page New York Times article headlined "He Kicked a Stray Cat, and Activists Growled." Here are excerpts:
On one side are the activists. Once dismissed as cat ladies or fringe do-gooders, they have come to wield real power through funding, organization and a focus on legal remedies for animal abuse. They have embraced social-media campaigns; offered rewards to potential witnesses to animal abuse; trained prosecutors; and made inroads in pushing law enforcement across the country to arrest, and seek jail time for, animal abusers.
Yet lawyers defending the accused say that punishment can seem disproportionate to the crime when an animal is the victim. They say that putting people in jail can have serious long-term effects, from starting or strengthening gang affiliations, to taking someone away from school or a job to which they may not return. “The nature of the crime should not automatically mandate a jail sentence if a person is found guilty,” said Tina Luongo, acting attorney in charge of the Legal Aid Society’s criminal practice.
At the moment, the activists seem to be winning the fight. The Federal Bureau of Investigation announced this month that it would track animal abuse as a separate crime, rather than lumping it in the “other” category.
In New York City, the Police Department took over responsibility for animal abuse complaints in January, and created an Animal Cruelty Investigation Squad. Arrests for animal abuse increased about 250 percent through September, compared with the same period last year....
Houston’s district attorney said this month that she would seek jail time in animal cruelty cases, and Massachusetts passed a bill increasing maximum prison time for animal abuse cases to seven years from five. In Virginia, after a push from People for the Ethical Treatment of Animals, a man was sentenced in February to a year in jail for starving a pit bull. And in Texas this year, a man received five years after offering to guide a wayward pet donkey home, then dragging the donkey behind his truck. The donkey, which was found in a ditch, survived....
Not long ago, animal cruelty was “considered a side issue, relegated to something a few overpassionate people cared about, basically,” said Assemblywoman Linda B. Rosenthal of the Upper West Side, who has backed several bills strengthening animal cruelty laws. “Now, it’s a mainstream concern.”
And it is one that animal groups are trying to make even more central.... The groups say they have captured law enforcement’s attention in part by emphasizing that animal cruelty can be a “red flag” for future crimes, particularly domestic violence. Prosecutions nationwide are becoming much more frequent, said Sherry Ramsey, the director of animal cruelty prosecutions for the Humane Society of the United States, “and a lot of it’s based on what we know now about the link between animal cruelty and human violence.”
Yet defense groups say animal abuse cases ... should be handled individually, and are not necessarily predictive of worse behavior. “We don’t punish individuals for alleged future misconduct they might at some point in the future engage, but have not,” Theodore Simon, president of the National Association of Criminal Defense Lawyers, said in an email. “To do so would be to punish a person for a ‘crime’ that has not occurred and was not committed.” Defense advocates also say more needs to be done if society wants to tamp down animal abuse.
Thursday, September 25, 2014
"Does Immigration Enforcement Reduce Crime? Evidence from 'Secure Communities'"
The title of this post is the title of this new empirical paper by Thomas Miles and Adam Cox now available via SSRN. Here is the abstract:
Does immigration enforcement actually reduce crime? Surprisingly, little evidence exists either way — despite the fact that deporting noncitizens who commit crimes has been a central feature of American immigration law since the early twentieth century. We capitalize on a natural policy experiment to address the question and, in the process, provide the first empirical analysis of the most important deportation initiative to be rolled out in decades. The policy initiative we study is “Secure Communities,” a program designed to enable the federal government to check the immigration status of every person arrested for a crime by local police. Before this program, the government checked the immigration status of only a small fraction of arrestees. Since its launch, the program has led to over a quarter of a million detentions.
We exploit the slow rollout of the program across more than 3,000 U.S. counties to obtain differences-in-differences estimates of the impact of Secure Communities on local crime rates. We also use rich data on the number of immigrants detained under the program in each county and month — data obtained from the federal government through extensive FOIA requests — to estimate the elasticity of crime with respect to incapacitated immigrants. Our results show that Secure Communities led to no meaningful reductions in the FBI index crime rate. Nor has it reduced rates of violent crime — homicide, rape, robbery, or aggravated assault. This evidence shows that the program has not served its central objective of making communities safer.
Wednesday, September 24, 2014
Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?
The question in the title of this post is prompted by this lengthy new FoxNews piece headlined "California voters weigh 'radical' changes to justice system as prisons fill up." Here are excerpts:
Voters this fall, however, could approve big -- and some say "dangerous" -- changes to the state’s sentencing system, aimed in part at easing the overcrowding. On the state ballot is a proposal that would dramatically change how the state treats certain “nonserious, nonviolent” drug and property crimes, by downgrading them from felonies to misdemeanors.
The measure, known as Prop 47, also would allow those currently serving time for such offenses to apply for a reduced sentence, as long as they have no prior convictions for more serious crimes like murder, attempted murder or sexual offenses.
Businessman B. Wayne Hughes Jr., who has donated hundreds of thousands of dollars to push the ballot measure, told FoxNews.com the changes would affect Californians who are “over-incarcerated and over-unpunished.”
“I saw Prop 47 as common-sense reform,” Hughes said. “I don’t see it as a radical reform.”
However, the measure is being slammed as dangerous by members of California’s law enforcement, including San Diego Police Chief Shelley Zimmerman. Zimmerman told FoxNews.com “virtually the entire law enforcement community opposes Prop 47.”
“It will require the release of thousands of dangerous inmates,” she said.
The proposition would reduce penalties for an array of crimes that can be prosecuted as either felonies or misdemeanors in California. This includes everything from drug possession to check fraud to petty theft to forgery. Prop 47 would, generally, treat all these as misdemeanors, in turn reducing average jail sentences. According to a state estimate, there are approximately 40,000 people convicted each year in California who would be affected by the measure.
“[Prop 47] allows the criminal justice system to focus in on more serious crimes,” Hughes said.
According to an analysis by the California Budget Project, state and local governments would save hundreds of millions of dollars every year. The measure dictates the savings be split among three different areas, with 65 percent going to mental health and drug treatment programs, 25 percent going to K-12 school programs and 10 percent going to victim services. The measure’s supporters say it also would help reduce California’s prison-overcrowding problem, an issue that has dogged the state for years.
The analysis by the California Budget Project found that the California prison population would “likely" decline if Prop 47 were implemented. “If Proposition 47 reduced the prison population by just 2,300 individuals – through re-sentencing and/or reduced new admissions – the state could meet the court-ordered population threshold via the measure alone,” the analysis said.
However, Zimmerman argued that the proposition would only shift the burden from the state prisons to local law enforcement and communities. “[Prop 47 is] not a sustainable or responsible way to reduce California’s prison population,” she said.
The California Police Chiefs Association also has come out hard against the proposition. “Proposition 47 is a dangerous and radical package of ill-conceived policies wrapped in a poorly drafted initiative which will endanger Californians,” the association said....
Former Republican congressional candidate Weston Wamp agreed, saying Prop 47 "might not be perfect, but it’s a breath of fresh air to talk about an issue where there can be some agreement." Wamp said if passed, he believes Prop 47 could have a positive effect on the nationwide prison reform movement. "I think it’s realistic if you give people who are not violent criminals, if you give them an opportunity not to just stay behind bars but to make their lives better, you may see over a longer period of time is lower rates in recidivism and a better chance at taking care of the problems and paying the bills," he said.
For now, it seems like the proposition’s supporters are connecting with voters. An August poll by the Field Research Corporation found that 57 percent of Californians were in favor of the measure, 24 percent were opposed and 19 percent were undecided.
Prior related post:
- Inititative details and debates over California's Proposition 47 to reduce severity of various crimes
Absent evidence of threats to humans, is incarceration for five years for animal abuse needed (or helpful)?
Like all good people, I really like puppies and really dislike animal abuse. Still, after being drawn in to this Florida sentencing story by the headline "Man Rapes Pit Bull Puppy, Sentenced To Five Years In Jail For Sexually Abusing Dog," I kept wondering what else the defendant must have done other than abuse his dog in order to be sentence to half a decade behinds bars. But the most complete story I could find about this "puppy rape" case, here from the Daytona Beach News-Journal, heightens my concern that Florida taxpayers are now going to have to spend a lot of money incarcerating a disturbed old man who presents no obvious threat to humans and clearly needs treatment to deal with his affinity for bestiality. Here are the basics:
A man whose sexual battery of a pit bull puppy did not rise to the level of state prison time, nonetheless received five years behind bars Friday afternoon after Circuit Judge Leah Case compared the crime to “systematic” and “chronic” child abuse.
When Case announced her decision to imprison James Bull of Daytona Beach, a crowd of mostly female animal advocates cheered and cried. Many of the advocates wore T-shirts bearing the pit bull puppy’s picture and the words “Justice For Rose.” The dog’s name was Coco, but the New York City rescue organization now fostering the milk-chocolate-colored canine renamed her Rose.
The case is the first time in Volusia or Flagler counties that a person has been convicted on the charge of sexual activity with an animal, a first-degree misdemeanor, State Attorney spokesman Spencer Hathaway said. Bull was also convicted of two counts of felony cruelty to animals and cruelty to animals. According to an article in the Mayport Florida Mirror in January, a St. Augustine man was convicted of bestiality with his dog and was sentenced to eight years in prison under the same state statute that was applied to Bull on Friday, Sept. 19, 2014....
Prosecutor Nathaniel Sebastian told Case that Bull did not score enough points criminally to be sentenced to state prison. He said perhaps the defendant could get additional jail time, probation and psycho-sexual counseling. Bull’s attorney Peter Kenny didn’t present much of an argument in his client’s favor, but did ask Case to spare Bull from prison because of his age and because he has a “bad back.”
While Case acknowledged that indeed Bull didn’t score high enough for prison, she also repeated the jarring testimony given a few minutes earlier by the state’s four witnesses regarding the dog’s daily suffering. “Although he (Bull) doesn’t score, it’s more about the intentional infliction of pain on an animal over and over again,” Case said. “It’s like child abuse. It often happens in secret behind closed doors.”
Prosecutors called three witnesses to the stand — their fourth witness, Halifax Humane Society veterinarian Tom Frieberg, testified via telephone — who provided graphic testimony about the animal’s living conditions and Bull’s abuse. Bull’s neighbor Dean Ray Gill testified that he constantly heard the dog yelping and “screaming.” Gill said that one day in March he was “fed up” and went to the back apartment to see what was happening to the animal. Gill said the door to Bull’s apartment was slightly ajar and he could hear the radio or a stereo blaring inside. Nonetheless, he could still hear the canine yelping above the music. Gill said he saw Bull sexually abusing the animal. Bull threw the dog aside and closed the front door, the neighbor testified.
Daytona Beach animal control officer Eva Burke said that when she arrived at Bull’s residence on March 18, the dog was chained to a porch and could not move because the chain was too short. Burke also said the animal’s rib cage was showing. Both Sebastian and Assistant State Attorney John Reid showed their witnesses photographs of the dog when police arrived on scene. Hathaway, the assistant state attorney who initially had the case, said the pictures were horrifying. Kenney did not call any witnesses on behalf of Bull.
At the risk of being labelled "soft on puppy rapists" or not loving animals, I cannot help but wonder and worry about the quality of representation this defendant received and about the need for such a lengthy term of incarceration if there is was indeed no evidence this defendant ever hurt a human or had plans to abuse humans. This defendant is plainly disturbed and his mistreatment of animals should be punished, but will a five-year jail term help this defendant get needed treatment or help safeguard the community upon his eventual release? Especially because there is considerable evidence suggesting certain types of offenders become MORE likely to recidivate as a result of a term of incarceration, I fear that this kind of "Justice for Rose" will actually entail greater expenses and an eventual greater threat to public safety for the people of Florida.
Tuesday, September 23, 2014
Noting the dynamics and debate over risk-assessments at sentencing
This new Wall Street Journal article, headlined "Judges Turn to Risk-Evaluation Tools in Sentencing Decisions: Many Are Adopting More Systematic Approach to Assessing Likelihood of Reoffense," discusses the always interesting issue of using risk-assessment measures at sentencing. Here are excerpts:
Judges have always considered the risk of reoffending in meting out sentences, and they generally follow guidelines that dictate a range of punishment for a given offense. [More recently], however, [there is] a broad effort to bring a more scientific approach to decisions made by judges, parole officers and corrections officials working in a system that often relies on gut instinct. Risk-evaluation tools have emerged as a centerpiece of efforts to reduce the U.S. inmate population, which jumped from around 200,000 in the early 1970s to over 2 million today.
Many parole boards now weigh risk scores when considering early release, and prison officials use them to determine the level of security offenders need during their stay. But the adoption of such tools has sparked a debate over which factors are acceptable. Attributes such as age or sex, which employers are generally forbidden from including in hiring decisions, are considered by criminal-justice experts to be strong predictors of whether an offender is likely to commit a crime in the future.
The measures vary widely but generally are based on an offender's criminal history and, in addition to age and sex, may include marital status, employment and education, according to Sonja Starr, a law professor at the University of Michigan.
Pennsylvania, one of the latest states to turn to actuarial tools in sentencing, is building a test that weighs the nature of offense, criminal history, age, sex and county of residence. The last factor is the most controversial as it could be considered a proxy for socioeconomic status. Missouri takes into account current offense and criminal history, age, whether the offender has a history of substance abuse, education level and employment.
Judges aren't bound by the evaluations, but there is evidence they are taking them into account. Virginia officials attribute a more than 25% drop in the number of nonviolent offenders sent to prison annually to the assessments, used to score felons convicted of fraud, larceny and drug crimes since 2003. In the past decade, the percentage of offenders serving prison terms for violent crime has risen to 74% from 61%, said Chief Judge Bradley B. Cavedo of Richmond Circuit Court. "It doesn't really control the outcome, but it is useful information," he said of the measures.
The efforts have drawn skepticism from Attorney General Eric Holder, who told a group of defense lawyers in Philadelphia last month that basing sentencing on factors such as a defendant's education level "may exacerbate unwarranted and unjust disparities."
There is no research yet on whether the use of risk evaluations in sentencing has aggravated, for example, the gap between sentences for black and white men for similar crimes. Ms. Starr said the disparities created by risk measures are evident. "When it comes down to it, these assessments stand for the proposition that judges should sentence people longer because they were in foster care as children or had too many bouts of unemployment," she said.
Christopher Slobogin, a Vanderbilt University law professor, said the alternative was potentially worse. "At least these risk-assessment instruments don't explicitly focus on race or poverty, unlike what might occur in a sentencing regime where judges are making risk assessments based on seat-of-the-pants evaluations," he said.
Recent related posts:
- "Attorney General Eric Holder to Oppose Data-Driven Sentencing":
- Three distinct takes on AG Eric Holder's recent reservations about risk-based sentencing
- Senator Whitehouse defends risk-assessment tools for some sentencing determinations
September 23, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (6) | TrackBack
High-profile commentator Dinesh D’Souza gets below-guideline probation sentence for violating federal campaign finance laws
As reported in this New York Times piece, headlined "D’Souza Is Spared Prison Time for Campaign Finance Violations," another notable white-collar defendant got a below-guideline federal sentence today thanks to judges now having broader post-Booker sentencing discretion. Here are the details:
The conservative author and documentary filmmaker Dinesh D’Souza was spared prison time on Tuesday after pleading guilty earlier this year to violating federal campaign finance laws.
Judge Richard M. Berman of Federal District Court in Manhattan handed down a probationary sentence — including eight months in a so-called community confinement center — and a $30,000 fine, bringing to a close a high-profile legal battle that started with Mr. D’Souza’s indictment in January for illegally using straw donors to contribute to a Republican Senate candidate in New York in 2012.
Mr. D’Souza, who has accused President Obama of carrying out the “anticolonial” agenda of his father, initially argued that he had been singled out for prosecution because of his politics. In April, his lawyer, Benjamin Brafman, filed court papers contending that Mr. D’Souza’s “consistently caustic and highly publicized criticism” of Mr. Obama had made him a government target.
A month later, however, on the morning he was scheduled to go on trial, Mr. D’Souza pleaded guilty. “I deeply regret my conduct,” he told the court. Even with his fate hanging in the balance, Mr. D’Souza plowed ahead with his thriving career as a right-wing provocateur. Over the summer, while awaiting his sentencing, he published the book “America: Imagine a World Without Her,” which reached No. 1 on The New York Times’s nonfiction hardcover best-seller list, and a companion documentary film that has made $14.4 million at the box office.
The government charged Mr. D’Souza, 53, with illegally arranging to have two people — an employee and a woman with whom he was romantically involved — donate $10,000 each to the campaign of an old friend from Dartmouth College, Wendy E. Long, with the understanding that he would reimburse them in cash for their contributions. Ms. Long was challenging Senator Kirsten E. Gillibrand, a Democrat.
According to prosecutors, Mr. D’Souza lied to Ms. Long about the donations, reassuring her that “they both had sufficient funds to make the contributions.” Ms. Long pressed Mr. D’Souza on the issue after the election, and he acknowledged that he had reimbursed the two people, the government said, but told Ms. Long not to worry because she had not known about it.
When Mr. D’Souza entered his guilty plea, Judge Berman said he could face up to two years in prison. The federal sentencing guidelines call for 10 to 16 months, but the final decision is up to the judge’s discretion. “Judges are all over the map on these reimbursement cases,” said Robert Kelner, a campaign-finance lawyer at Covington & Burling.
Mr. D’Souza’s lawyers asked for leniency, arguing in a court filing that their client had “unequivocally accepted responsibility” for his crime. “We are seeking a sentence that balances the crime he has regrettably committed with the extraordinary good Mr. D’Souza has accomplished as a scholar, as a community member and as a family member,” they wrote, requesting that he be sentenced to probation and community service at the Boys and Girls Clubs of Greater San Diego.
The government rebutted Mr. D’Souza’s claims, highlighting both the seriousness of his offense and what it called “the defendant’s post-plea failure to accept responsibility for his criminal conduct.” According to the government, Mr. D’Souza assumed a different posture with respect to his case when he was not before the court. It cited a television interview he gave two days after his plea in which he “repeatedly asserted that this case was about whether he was selectively prosecuted.”
This story reminds me why I am so sad Bill Otis no longer comments on this blog; I am so eager to hear from him directly whether he thinks this case is yet another example of, in his words, allowing "naïve and ideologically driven judges" to make sentencing determinations and therefore further justifies embracing mandatory sentencing schemes that would always require judges to impose prison terms on these sorts of non-violent offenders because these sorts of offenses do great harm even if they do not involve violence.
Based on my limited understanding of the crime and criminal here, I feel fairly confident asserting that a prison term for Mr. D’Souza would have achieved little more than spending extra federal taxpayer dollars without any real public safety return on that investment. But Bill and I rarely see eye-to-eye on these matters, and thus I am eager for a distinct perspective in this notable white-collar case.
September 23, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (7) | TrackBack
Monday, September 22, 2014
Inititative details and debates over California's Proposition 47 to reduce severity of various crimes
One of the most intriguing criminal justice initiatives not dealing with marijuana in the 2014 election season is Proposition 47 in California. This nonpartisan analysis from the Legislative Analyst's Office provides this simplified summary of the initiative (as well as a more detailed explanation of Prop 47's particulars):
This measure reduces penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes. The measure also allows certain offenders who have been previously convicted of such crimes to apply for reduced sentences. In addition, the measure requires any state savings that result from the measure be spent to support truancy (unexcused absences) prevention, mental health and substance abuse treatment, and victim services.
This local recent article, headlined "Arguments Heating Up in Penalty-Reducing Prop 47," provides the essence of the current state of debate over this notable initiative:
Some say under Proposition 47 criminals will get a slap on the wrist, but others argue it's a second chance. The crime-fighting arguments for and against Prop 47 are heating up as we inch closer to the November election.
Prop 47 looks to drop non-violent, non-sexual and non-serious felony crimes into misdemeanors. Supporters say it will ease jail and prison overcrowding by giving some a second chance. But opponents say it's a dangerous way to increase the speed of the revolving jail door.
About two dozen religious activists began a huge push Thursday at St. Rest Baptist Church is Southwest Fresno to support Prop 47, calling it the Safe Neighborhoods and Schools Act. Catholic Bishop Armando Ochoa was among the speakers who believe Prop 47 would benefit the public. "Incarceration does a miserable job of educating people and treating mental illness, but that has become the norm for California," he said.
Under Prop 47 there is a promise of savings to the state by reducing prison and jail population. The promise includes transferring that savings, around a billion dollars over several years, to K-12 education, mental health and rehab programs.
"It promises to lower crime by making it legal," said Mike Reynolds, author of California's three-strikes law. "That's basically what it's saying." Reynolds penned three strikes after his daughter, Kimber Reynolds, was killed in the Tower District in 1992. "This is going to encourage more young people to come into a life of crime," Reynolds said. "It's going to release dangerous criminals back out on the streets, including three strikers."...
So far several law enforcement groups, like the California Police Chiefs Association, are highly opposed to Prop 47's reduced penalties....
The crimes that would be reduced to misdemeanors include drug possession, forgery and shoplifting, among a host of other crimes.
Sixth Circuit reverses Ponzi scheme sentence because loss calculation failed to credit monies paid out
This morning a Sixth Circuit panel has handed down a notable ruling about loss calculations in the federal sentencing of a Ponzi schemer. Here is how the panel opinion in US v. Snelling, No. 12-4288 (6th Cir. Sept. 22, 2014) (available here) starts and concludes:
Defendant-Appellant Jasen Snelling appeals a 131-month prison sentence imposed pursuant to a plea agreement. In the agreement, Snelling admitted to charges of conspiracy to commit mail and wire fraud, obstruction of justice, and tax evasion for his part in an investment scheme that defrauded investors of nearly $9 million. Snelling challenges the sentence based on an allegedly faulty Guidelines-range calculation that employed a loss figure that did not take into account the sums paid back to his Ponzi scheme’s investors in the course of the fraud.
For the reasons below, we vacate the sentence of the district court and remand the case for resentencing.....
Admittedly, there is intuitive appeal to the government’s argument that Snelling should not be allowed to benefit from the payments he made “not to mitigate the losses suffered . . . but to create the means to convince new victim-investors to pay him even more money.” We need not reflect, however, on whether it is unseemly for Snelling to benefit from the money he paid out to investors in an effort to perpetuate his Ponzi scheme. Undoubtedly, it is. The only question we must consider is whether the district court correctly applied the Guidelines and whether it used a correct Guidelines range.
An accurately calculated Guidelines range is necessary for a procedurally reasonable sentence — any error in calculating the Guidelines range cannot survive review. See Gall v. United States, 552 U.S. 38, 49 (2007); see also United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007) (“[W]e must ensure that the district court correctly calculated the applicable Guidelines range which are the starting point and initial benchmark of its sentencing analysis.”) (internal alterations and quotation marks omitted). As appealing as the government’s argument may be, it does not comport with the text of the Guidelines. Accordingly, the district court was in error when it declined to reduce the loss figure by the value of the payments made by Snelling to his investor victims in perpetuating his Ponzi scheme.
Sunday, September 21, 2014
Newt Gingrich helps explain "What California can learn from the red states on crime and punishment"
Newt Gingrich and B. Wayne Hughes Jr. are the co-authors of this notable recent Los Angeles Times op-ed headlined " "What California can learn from the red states on crime and punishment." Among other points, the piece makes the case for a proposition on the ballot in California (Prop 47) that would reduce the severity of a number of California crimes. Here are excerpts:
Imagine you have the power to decide the fate of someone addicted to heroin who is convicted of petty shoplifting. How much taxpayer money would you spend to put that person in prison — and for how long? Is incarceration the right form of punishment to change this offender's behavior?
Those are questions states across the nation are increasingly asking as the costly and ineffective realities of incarceration-only policies have set in. Obviously, we need prisons for people who are dangerous, and there should be harsh punishments for those convicted of violent crimes. But California has been overusing incarceration. Prisons are for people we are afraid of, but we have been filling them with many folks we are just mad at.
Reducing wasteful corrections spending and practices is long overdue in California. The state imprisons five times as many people as it did 50 years ago (when crime rates were similar). And as Californians know, the state's prison system ballooned over the last few decades and became so crowded that federal judges have mandated significant reductions.
Contributing to the growth in the number of prisoners and in prison spending has been a dramatic expansion in the number of felonies. In addition, mandatory minimum sentences have been applied to an increasing number of crimes. These policies have combined to drive up the prison population, as more prisoners serve longer sentences. On top of that, California has an alarmingly high recidivism rate: Six out of 10 people exiting California prisons return within three years.
It makes no sense to send nonserious, nonviolent offenders to a place filled with hardened criminals and a poor record of rehabilitation — and still expect them to come out better than they went in. Studies show that placing low-risk offenders in prison makes them more dangerous when they are released.
Over-incarceration makes no fiscal sense. California spends $62,396 per prisoner each year, and $10 billion overall, on its corrections system. That is larger than the entire state budget of 12 other states. This expenditure might be worth it if we were safer because of it. But with so many offenders returning to prison, we clearly aren't getting as much public safety — or rehabilitation — as we should for this large expenditure.
Meanwhile, California spends only $9,200 per K-12 student, and the average salary for a new teacher is $41,926. And as California built 22 prisons in 30 years, it built only one public university.
California is not alone in feeling the financial (and public safety) consequences of over-incarceration. Several states — politically red states, we would point out — have shown how reducing prison populations can also reduce cost and crime. Most notably, Texas in 2007 stopped prison expansion plans and instead used those funds for probation and treatment. It has reduced its prison population, closed three facilities and saved billions of dollars, putting a large part of the savings into drug treatment and mental health services. Better yet, Texas' violent crime rates are the lowest since 1977.
Another red state, South Carolina, made similar reforms for nonviolent offenses. The drop in the number of prisoners allowed South Carolina to close one prison and also lower its recidivism rate. Other states (Ohio, Georgia, Oklahoma, Kentucky, Missouri, Pennsylvania and Mississippi) have similarly shifted their approach to nonviolent convictions.
Now voters in California will have a chance to do the same, using costly prison beds for dangerous and hardened criminals. It is time to stop wasting taxpayer dollars on locking up low-level offenders. Proposition 47 on the November ballot will do this by changing six nonviolent, petty offenses from felony punishments (which now can carry prison time) to misdemeanor punishments and local accountability.
The measure is projected to save hundreds of millions of taxpayer dollars per year, and it will help the state emphasize punishments such as community supervision and treatment that are more likely to work instead of prison time....
If so many red states can see the importance of refocusing their criminal justice systems, California can do the same. It's not often the voters can change the course of a criminal justice system. Californians should take advantage of the opportunity and vote yes on Proposition 47.
September 21, 2014 in Elections and sentencing issues in political debates, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Friday, September 19, 2014
"The Most Senior Wall Street Official: Evaluating the State of Financial Crisis Prosecutions"
The title of this post is the title of this notable new article on SSRN authored by Todd Haugh. Here is the abstract:
This September marks six years since the collapse of Lehman Brothers and the height of the financial crisis. Recently, a growing debate has emerged over the Justice Department’s failure to criminally prosecute Wall Street executives for their role in creating the crisis. One side of that debate contends the government has failed to bring to justice individual wrongdoers — primarily the heads of banks operating in the mortgage-backed securities market — instead preferencing enforcement decisions that target corporations, resulting in punishments that are “little more than window-dressing.” The other side argues that cases against individuals are precluded by the realities of the federal criminal justice system, and that “corporate headhunting” will only inhibit meaningful regulatory reform.
It is difficult, however, to evaluate these competing claims without proper context. This Article explores the recent conviction and sentencing of Wall Street executive Kareem Serageldin as a means of providing that context. Although Serageldin has been trumpeted as the “the most senior Wall Street official” to be sentenced for conduct committed during the financial crisis, and his conviction was framed as a victory in punishing those accountable for the financial collapse, a critical look at his case reveals he committed only a mundane white collar crime marginally related to the crisis. This disconnect creates a unique lens through which to understand and evaluate the current state of — and debate surrounding — financial crisis prosecutions. And it ultimately highlights the merits, and shortfalls, of each camp’s arguments. The Article concludes by offering something largely absent from the current debate: specific proposals for how we might go about prosecuting individuals so as to prevent the next crisis.
Thursday, September 18, 2014
"The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options"
The title of this post is the title of this notable new paper by John Pfaff now available via SSRN. Here is the abstract:
Many commentators argue that the War on Drugs has played a major role in the four-decade long explosion in US incarceration rates, but in this paper I demonstrate that these claims do not generally rest on sound empirical footing. The direct incarceration of drug offenders explains only about 20% of prison growth (compared to over 50% for violent offenders), and drug convictions do not appear to drive parole revocations nor act as prior felonies that trigger harsh repeat offender laws for subsequent non-drug offending. Furthermore, drug offenders also appear to comprise only about 20% of those flowing through prison, which could be a more accurate measure of the War on Drugs' impact, since drug offenders generally serve disproportionately short sentences and thus may be under-represented in the one-day prison counts that are standard metric of prison's scope.
That said, the War on Drugs could still matter, but in more indirect -- and much harder to measure -- ways. Drug enforcement could contribute to overall social instability in high-crime, high-enforcement communities, or at least to the perception of instability, in ways that may trigger more enforcement by police and prosecutors, even if crime rates are relatively low and falling. Furthermore, while prior drug offenses do not appear to trigger formal recidivist statutes, they may alter prosecutorial charging decisions for later non-drug offenses, but prosecutorial charging behavior is currently impossible to measure with existing data.
Finally, even though the War on Drugs has played only a secondary role in prison growth, there are over 200,000 people in state prison every day on drug charges, and states appear eager to reduce the scope of drug-related incarcerations. So I conclude by considering some of the options available to states. I point out that the leading contenders -- decriminalization and sentence reduction -- will likely have little effect, since few offenders are in prison on marijuana charges (the only drug for which decriminalization is currently feasible), and all drug offenders serve relatively short sentences, well below the statutory maximums. I then consider broader options, such as proposals that target the financial incentives prosecutors have to send offenders, including drug offenders, to prison. I also touch on the implications of adopting broader definitions of "drug offenders," such as those who commit violent or property crimes either to support drug habits or in the course of selling drugs.
Wednesday, September 17, 2014
Seventh Circuit panel seemingly unmoved by feds appeal of probation sentence given to Beanie Babies billionaire
As detailed in this new Chicago Tribune article, "Prosecutors in Warner tax evasion case grilled by appeals court judges," federal prosecutors apparently did not get a warm reception at oral argument in the Seventh Circuit as they pressed their claims that a probation sentence given to a high-profile tax cheat was unreasonable. Here are the basics:
Federal prosecutors appealing the probation sentence of Beanie Babies founder Ty Warner faced a three-judge panel Wednesday to make the case for why the Westmont billionaire should get prison time for evading taxes.
Warner pleaded guilty last year to one count of tax evasion for failing to report more than $24 million in income and skirting $5.5 million in federal taxes on millions of dollars he hid for more than a decade at two Swiss banks. Prosecutors had been pushing for a sentence of at least one year in prison, partly to deter others from committing the same crime. Sentencing guidelines had called for a prison sentence of up to 57 months. His defense lawyers had argued that many tax evaders were allowed to join an amnesty program and that, even among those criminally charged and convicted, more than half who had been sentenced received probation.
Ilana Rovner, a U.S. appeals court judge for the seventh circuit, said Wednesday that she had a problem reconciling why the government was seeking to throw out Warner’s sentence when many tax evaders get probation or might not be prosecuted at all. Also, the amount of tax he evaded was a fraction of what he has paid in taxes, she noted. Warner has already paid a civil penalty for not reporting the offshore accounts and restitution for what he owed in back taxes and interest....
Rovner also noted that prosecutors seem to be ignoring the “considerable discretion” of the district judge, Charles Kocoras, has in imposing a sentence. He is a “veteran” judge who “obviously agonized” over the decision, she said.
Judge Michael Kanne noted that Warner’s guilty plea “saved the government some money” and that the appeals court “shouldn’t be the sentencing court.”
Judge Joel Flaum wondered why, if Warner’s conduct was so egregious, he was charged with only one count of tax evasion and why the government was seeking at minimum at least a year in prison. Rovner chimed in, addressing Petersen: “You agreed to this.”
Judge Kanne noted that one count of tax evasion and a minimum prison sentence of a year “doesn’t sound like deterrence to me.” Petersen responded that probation is a far more lenient sentence than the minimum of one year the government was seeking.
Anyone eager to hear the oral argument in full can access it via this mp3 link from the Seventh Circuit's website. Notably, former US Solicitor General Paul Clement argued on behalf of the defendant (and I cannot help but wonder if he got some special Beanie Babies from the defendant in addition to the usual fees for his efforts).
Prior related posts:
- You be the federal judge: what sentence should the Beanie Babies billionaire get for tax evasion?
- Feds to appeal probation sentence given to tax-dodging Beanie Babies billionaire
- Feds call probation sentence given to Beanie Babies billionaire substantively unreasonable
September 17, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Woman who bought guns for killer gets (way-above-guideline) eight-year federal prison sentence
As reported in this post last month, a high-profile federal gun case in upstate New York involved federal prosecutors seeking a statutory maximum sentencing term of 10 years in prison when the applicable guideline recommend only 18 to 24 months for the offense. This new local article, headlined "Woman tied to firefighter ambush sentenced to 8 years," details that the feds today were successful in securing a way-above-guideline federal gun sentence in the case:
The woman convicted of buying guns for a man that were used to kill two firefighters on Christmas Eve 2012 was sentenced to eight years in prison on federal charges Wednesday. The sentence, imposed by U.S. District Judge David Larimer, will run concurrent with a state sentence Dawn Nguyen is now serving of 16 months to four years.
On June 6, 2010, Nguyen bought the semiautomatic rifle and shotgun that William Spengler Jr. used when he fatally shot two volunteer firefighters Dec. 24, 2012. She claimed on a federal firearms transaction form that the guns were for her, when she was purchasing them for Spengler.
"I'm sure Miss Nguyen wishes she could take back that decision she made on that June day, but life is not like that," Larimer said in federal court Wednesday morning. Assistant U.S. Attorney Jennifer Noto in court Wednesday had argued that Nguyen's actions directly led to the Christmas Eve killings. "She should have foreseen the possibility of serious harm," said Noto....
Spengler had previously served 17 years in prison for fatally beating his grandmother with a hammer in 1980.
Larimer on Wednesday said he believed Nguyen knew of Spengler's dangerousness, and that she likely knew the facts behind Spengler's killing of his grandmother. Speaking of Spengler's past crime, Larimer said, "that should raise not one but hundreds of red flags that maybe this is not the kind of person who you want to be giving guns to."
Nguyen's lawyer Matthew Parrinello maintained that Nguyen did not know the specifics of Spengler's earlier crime. "This was a quirky, weird, crazy neighbor that she knew," said Parrinello. "But he was very nice, very kind and he did things for her family."
Dawn Nguyen on Wednesday faced the court room — which was packed with police officers, West Webster, N.Y., volunteer firefighters and her relatives — and told the crowd that she was sorry for her actions.
Related prior posts:
- Fascinating federal "gun control" criminal charges in wake of NY ambush murder-suicide
- Though guidelines recommend two years or less, feds request 10-year max for woman who bought guns for killer
Monday, September 15, 2014
Effective commentary on Sixth Circuit panel upholding 15-year ACCA sentence for possession of shotgun shells
I am pleased to see that by LawProf Richard M. Re now has posted on his (wonderfully titled) Re's Judicata blog some new critical thoughts about the Sixth Circuit panel ruling late last week in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here). Young rejected an Eighth Amendment claim by the defendant by ruling that a mandatory 15-year federal imprisonment term was not grossly disproportionate for a felon's possession of shotgun shells. I first blogged about the Young ruling here, and I have not (yet) commented further because I was involved in the briefing and argument to the Sixth Circuit as an amicus representing NACDL.
Helpfully, Prof Re's extended post on Young, which is titled "A 'Shell' Game in the Sixth Circuit?", highlights some of my own deep concerns about the ruling. I recommend everyone check out the full post, which gets started this way:
In US v. Young, the Sixth Circuit recently affirmed a startlingly severe sentence for what seems like innocuous conduct, and the blogosphere has taken note. As Eugene Volokh put it in his post title, the case involved a “15-year mandatory minimum federal sentence for possessing shotgun shells (no shotgun) almost 20 years after past felonies.” The case might go to the Supreme Court on the Eighth Amendment question it raises.
Viewed from another angle, Young illustrates two reasons to lament the rarity of executive clemency. First, whether Young’s sentence is just seems to depend on factors that weren’t pressed in court but that executive officials likely know about. A robust clemency tradition would bring those factors to light. Second, in the absence of executive clemency, the Sixth Circuit seems to have reached outside the proven record to do the executive’s job for it — and, in doing so, the court relied on allegations and innuendo instead of judicial findings.
Prior related posts on Young case:
- "A few shotgun shells landed a man 15 years in federal prison"
- New York Times column spotlights extreme application of ACCA in US v. Young
- Sixth Circuit to hear oral argument on extreme application of ACCA in US v. Young
- Sixth Circuit panel finds mandatory 15-year imprisonment term not grossly disproportionate for possession of shotgun shells
September 15, 2014 in Examples of "over-punishment", Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Tuesday, September 09, 2014
Will and should federal judge Mark Fuller get the same professional treatment as Ray Rice?
The provocative question in the title of this post is a slightly different phrasing of the question in the headline of this provocative AL.com commentary by John Archibald. That headline is "Superstar Ray Rice cut from team; will 'superstar' judge Mark Fuller get to play on?", and the commentary concludes this way:
Before seeing the actual video evidence, the Baltimore Ravens had apologized for Rice. Then team officials saw the replay. They saw the lightning left. They saw Janay Rice quivering on the floor. They saw, and finally reacted as they had to react, with speed and with revulsion.
With that devastating left hand there was nothing left to the imagination. It didn't matter that Rice had racked up 3½ miles of yardage during his career, that he scored 222 points. It did not matter who he was before he threw that punch. He was somebody else — wearing the Ravens' colors — after it. They cut him from the team today.
It is no different with any abuser. It is sure no different with "superstar" federal judge Mark Fuller, who was arrested in Atlanta in August for beating up his wife. We don't have video of that hotel room, but the police account was vivid enough.
The place reeked of booze and was littered with broken glass —and hair. Kelli Fuller told the cops she accused her husband of having an affair, and he responded by throwing her to the ground, kicking her and beating her in the face.
Fuller copped a plea in Atlanta, agreeing to terms that will send him to counseling and expunge his record. Like the whole wife-beating thing never happened at all.
Which is as bad as the NFL handing Rice a two-game suspension in the first place. Which is worse than the NFL handing Rice a two-game suspension in the first place.
He'll return to the bench a judge for life, deciding the fate of his fellow man as if the law did not apply to him, as if he were above it, as if he were ... a superstar.
But he's still just a 56-year-old punk kid. He ought to quit, but punk kids and abusers don't often quit. That shouldn't be the end of it.
Because if the NFL and the Baltimore Ravens can make a statement about domestic violence, so can the courts and the United States Government. Fuller shouldn't get the opportunity to quit. He needs to be impeached. We should demand it. He is, after all, wearing our colors.
Monday, September 08, 2014
Former SAC trader Mathew Martoma gets lengthy (but way-below guideline) federal prison term of nine years for insider trading
As reported in this new USA Today piece, headlined "Ex-SAC Capital trader gets 9-year sentence," a high-profile white-collar sentencing has resulted in a below-guideline (but still lengthy) prison term for an insider trader. Here are some of the interesting details from today's interesting sentencing in New York federal court:
Former SAC Capital portfolio manager Mathew Martoma was sentenced to a nine-year prison term Monday for his central role in what federal prosecutors called the most profitable insider-trading scheme in U.S. history. Martoma, a former financial lieutenant to billionaire hedge fund founder Steven Cohen, sat silently, declining to speak before U.S. District Judge Paul Gardephe imposed the sentence during a Manhattan federal court hearing.
The judge also ordered the 40-year-old father of three to forfeit nearly $9.4 million — more than his current net worth — and surrender for imprisonment on Nov. 10. His attorneys are expected to file an appeal of his Feb. 6 conviction.
Federal jurors found Martoma guilty of conspiracy and two counts of securities fraud after a month-long trial during which the defendant declined to testify. The case centered on charges that Martoma illegally obtained disappointing results of clinical tests on an experimental Alzheimer's disease drug in 2008 by cultivating relationships with two doctors who were privy to details of the testing outcome. Martoma then set in motion a $700 million sell-off of SAC Capital stock holdings in shares of Elan and Wyeth, the pharmaceutical firms that developed the drug. The transactions generated approximately $276 million in profits and avoided losses, along with a nearly $9.4 million 2008 bonus for Martoma.
The sentence imposed by Gardephe was lower than the 188-months-to-235-months range specified in federal sentencing guidelines. It exceeded the eight-year prison term recommended by probation officials and met prosecutors' request for a sentence higher than that recommendation.
The sentence came after defense attorney Richard Strassberg argued for leniency.... He urged Gardephe to weigh Martoma's devotion to his family and history of helping others. The defense lawyer also filed more than 100 support letters from Martoma's relatives and friends — some of whom were in the courtroom for Monday's sentencing.
The defense team also argued that Martoma was the sole source of financial support for his wife, Rosemary, and the couple's three young children. "Mathew, as a person, is much more than the charge of insider-trading that has brought us all to this courtroom today," said Strassberg. He argued that a "just" sentence would consider Martoma's history of charitable acts and helping others.
But federal prosecutor Arlo Devlin-Brown said "It is hard to think of a more significant and brazen instance of insider trading than the case before this court. The sentence in this case, we submit, must reflect the seriousness of this significant breach."
Gardephe, however, said he had weighed all of the submissions from both sides and studied sentences in other insider trading convictions in New York's Southern federal district. The judge credited Martoma's charity and other acts of generosity but he said the evidence showed that Martoma went for "one big score" that would provide lifetime security. "His plan worked, but now he has to deal with the fallout."
Gardephe also referred to Martoma's expulsion from Harvard Law School for falsifying a grades transcript, as well as his subsequent admission to Stanford University's business school without disclosing the expulsion. Saying "there is a darker side" to Martoma's character, Gardephe added, "I do believe there is a connection" to the insider trading episode. "The common thread is an unwillingness to accept anything but the top grade ... and the highest bonus."
September 8, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (0) | TrackBack
Intriguing concurring sentiments about federal child porn downloading cases from Judges Noonan and Reinhardt
Late last week, two judges on the Ninth Circuit made noteworthy an otherwise forgettable decision in US v. Hardrick, No. 13-50195 (9th CIr. Sept. 4, 2014) (available here), through their concurring opinions in a run-of-the-mill affirmance of federal conviction of a child pornography downloader. Here is the text of Judge Noonan's Hardrick concurring addition:
I write to underline the need for further action to discourage a crime whose actual extent is unknown but whose commission is increasingly prosecuted as a serious federal offense. As pointed out in a thoughtful communication by Alexandra Gelber, Assistant Deputy Chief, Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice: Those convicted of the crimes of possessing, receiving, or distributing child pornography typically have no criminal record but “include professors, teachers, coaches, fathers, lawyers, doctors, foster parents, adoption agency owners, and more.” See Alexandra Gelber, Response to “A Reluctant Rebellion” 7 (July 1, 2009), http://www.justice.gov/criminal/ceos/downloads/ReluctantRebellionResponse.pdf. Obviously, lack of criminal history is not a defense. It is equally obvious that this kind of defendant is normally law-abiding and, unless suffering from some psychological impairment — the probability Judge Reinhardt effectively develops — could be expected to obey the law in this area if aware of its provisions and especially if aware of its sanctions. Why should the government not advertise the law and its penalty? Better to stop a crime’s commission than mop the consequences.
Judge Reinhardt's comment are a bit more extended, and here are excerpts:
Like Judge Noonan, I concur in the unanimous opinion of the court. Also, like Judge Noonan, I am disturbed about the practical impact of the child pornography laws upon otherwise law-abiding individuals. I do not agree, however, that advertising the legal consequences is a solution to the problem. Rather, it is my view that “psychological impairment” is in most, if not all, cases the cause of the criminal conduct. Whether psychiatric treatment rather than incarceration would be the proper response by state authorities is a matter that I would hope would be given more serious consideration than it has until now. Surely sentences of five to twenty years for a first offense of viewing child pornography are not the solution. See 18 U.S.C. § 2252(b)(1). Nor are mandatory sentences of fifteen to forty years for a second. See id.....
I do not profess to know the solution to the problem of how to cure the illness that causes otherwise law-abiding people to engage in the viewing of child pornography. I know only that lengthy sentences such as the one in this case, ten years (and below the guidelines at that) for a first offense, cannot be the answer.
There is nothing new in what I say here, but it is a problem that I believe deserves more attention than we have given it thus far. Many lives of otherwise decent people have been ruined by psychological problems they are not presently capable of controlling. Incarcerating them will not end the horror of child pornography or the injury it inflicts on innocent children. All it accomplishes is to create another class of people with ruined lives — victims of serious mental illness who society should instead attempt to treat in a constructive and humane manner.
September 8, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack
Pregame preview of another high-profile insider-trading sentencing in NYC
This new BloombergBusinessweek article, headlined "Mathew Martoma, Convicted SAC Trader, Gets Sentenced Today," provides these basics about a not-so-basic, white-collar sentencing scheduled in federal court today:
Around 9 pm on November 8, 2011, a pair of FBI agents pulled up outside of Mathew Martoma’s home in Boca Raton, a 6,200 square-foot mansion tucked behind a circular driveway and lavish palm trees. They were there to talk to Martoma about insider trading at SAC Capital, his former employer and one of the world’s largest hedge funds.
The SEC, the FBI and the U.S. Attorney’s Office in Manhattan were five years into a far-reaching investigation of illegal trading among hedge funds across the country, and just three weeks before, Raj Rajaratnam, the co-founder of the $7 billion fund the Galleon Group, had been sentenced to a record 11-year prison term for insider trading.
The government was fairly confident that Martoma would lead them to an even bigger prize: one of the richest men in the world and the founder of SAC, Steven A. Cohen. From that point on, nothing proceeded quite as the government expected. Instead, Martoma is scheduled to be sentenced today in what prosecutors describe as “the most lucrative insider trading scheme ever charged.”
After an investigation, an arrest and a high-profile five-week trial in January, Martoma was convicted of insider trading in two drug stocks, Elan and Wyeth, and earning profits and avoiding losses of $275 million while working as a portfolio manager at SAC. The government alleged that he spoke with Cohen right after learning about important drug trial results, and that Cohen traded the two stocks as well. Martoma’s was the eighth conviction of a former or current SAC employee of insider trading....
From the FBI’s perspective, Martoma was an ideal candidate for cooperation. He has three young children and a beautiful, devoted wife, all of whom he would be separated from during a long prison term. He was also fired from SAC after failing to replicate his success in Elan and Wyeth and, the government believed, there was powerful evidence against him. He had no reason to be loyal to his former boss and he had a lot to lose. Still, Martoma baffled everyone by refusing to flip, insisting he was innocent and bringing the government’s determined march toward Cohen to an abrupt stop. Without a witness, any developing case against the hedge fund founder fell apart. Now it is Martoma who faces a sentence of up to 20 years, although it’s likely to be closer to 8.
Cohen was never charged with insider trading, and his life goes on relatively unchanged. Prosecutors indicted SAC in January, 2013, calling the company a “magnet for market cheaters.” The firm agreed to plead guilty and pay a $1.2 billion fine (not including $600 million already pledged to the SEC over Martoma’s trades). A civil case brought by the SEC charging Cohen with failing to supervise his employees has not been resolved. Cohen shut down his hedge fund and transformed his firm into a family office, Point72 Asset Management, which invests his personal fortune.
Thursday, September 04, 2014
Former Virginia Gov McDonnell (and wife) now facing high-profile federal sentencing after jury convictions on multiple charges
As detailed in this FoxNews report, headlined "Ex-Virginia governor, wife found guilty on corruption charges," a high-profile federal criminal trial is now over and a high-profile federal sentencing process is about to begin. Here are the basics:
Former Virginia Gov. Bob McDonnell and his wife Maureen were convicted Thursday on a range of corruption charges in connection with gifts and loans they accepted from a wealthy businessman, marking a stunning fall for the onetime rising Republican star.
A federal jury in Richmond convicted Bob McDonnell, 60, of 11 of the 13 counts he faced; Maureen McDonnell was convicted of nine of the 13 counts she had faced. Both bowed their heads and wept as a stream of "guiltys" kept coming from the court clerk. The verdict followed three days of deliberations, after a five-week trial.
Sentencing was scheduled for Jan. 6. Each faces up to 30 years in prison. After the verdict was read, FBI agent-in-charge Adam Lee said the bureau will "engage and engage vigorously in any allegation of corruption." Assistant Attorney General Leslie Caldwell, head of the Justice Department's criminal division, said the state's former first couple "turned public service into a money-making enterprise."
The former governor, up until his federal corruption case, was a major figure in national politics and had been considered a possible running mate for presidential candidate Mitt Romney in 2012. The couple, though, was charged with doing favors for a wealthy vitamin executive in exchange for more than $165,000 in gifts and loans. They also were charged with submitting fraudulent bank loan applications, and Maureen McDonnell was charged with one count of obstruction.
The former governor testified in his own defense, insisting that he provided nothing more than routine political courtesies to former Star Scientific CEO Jonnie Williams. Maureen McDonnell did not testify. His testimony and that of others exposed embarrassing details about Maureen McDonnell's erratic behavior and the couple's marital woes as the defense suggested they could not have conspired because they were barely speaking....
Prosecutors claimed that the McDonnells turned to Williams because they were grappling with credit card debt that once topped $90,000 and annual operating shortfalls of $40,000 to $60,000 on family-owned vacation rental properties. Two of the loans totaling $70,000 were intended for the two Virginia Beach rent houses. Williams said he wrote the first $50,000 check to Maureen McDonnell after she complained about their money troubles and said she could help his company because of her background selling nutritional supplements.
My (way-too-quick) rough review of likely applicable sentencing guidelines suggests that the McDonnells are likely facing guideline sentencing ranges of 10 years or even longer based on the offense facts described here. I presume they should be able to get some top-flight attorneys to make some top-flight arguments for below-guideline sentences. But, at least for now, I am inclined to urge former Gov McDonnell to expect to be celebrating his 65th (and maybe also his 70th) birthday in the graybar hotel.
Wednesday, September 03, 2014
Third Circuit panel splits over whether placing child porn in shared folder constitutes distribution
A Third Circuit panel today split on an interesting question of computer crime law involving child pornography. Here is how the majority opinion in US v. Husmann, No. 13-2688 (3d Cir. Sept 3, 2014) (available here) gets started:
David George Husmann placed various images of child pornography in a shared computer folder connected to a file sharing network. Based on that conduct, a jury convicted him of three counts of distributing child pornography. At trial, the government did not present evidence that any person had actually downloaded or obtained the materials that Husmann made available. The issue we address is whether the mere act of placing child pornography materials in a shared computer folder, available to other users of a file sharing network, constitutes distribution of child pornography. We conclude it does not. A conviction for distributing child pornography cannot be sustained without evidence that another person actually downloaded or obtained the images stored in the shared folder. Accordingly, we vacate Husmann’s conviction under 18 U.S.C. § 2252(a)(2) and remand for resentencing.
And here is how the dissenting opinion, per Judge Van Antwerpen, gets going:
I cannot join my colleagues in the narrow definition of “distribution” they would apply to child pornography cases. George Husmann was convicted by a jury of three counts of distributing child pornography pursuant to 18 U.S.C. § 2252(a)(2). Husmann placed images of child pornography into a shared folder accessible to all global users of the peer-to-peer (“P2P”) file sharing program 360 Share Pro. Once in the shared folder, a search term and a click of a mouse allowed access to these images by any user on the system. My colleagues definition of “distribution,” under 18 U.S.C. § 2252, would create a system in which a person who intentionally posted child pornography on the Internet, knowing it is accessible to hundreds, if not millions, of individuals, is not “distribution.” This is certainly not what Congress had in mind and following the majority’s approach, the crime of distribution would not be complete until a police officer downloaded the image. This is a distinction without merit. Given the plain meaning of the term, the intent of Congress, the advancement of technology, as well as a series of recent sentencing cases, the placing of child pornography into a shared file accessible over a peer-to-peer file sharing network, alone should constitute “distribution.” Husmann took all the necessary steps to make a product available to the public in a publically accessible location, and whether or not a party took that product is irrelevant to both the purpose of § 2252 and to his role as distributor. For that reason, the conviction of Appellant George Husmann for “distribution” under 18 U.S.C. § 2252 should be upheld.