Sunday, April 15, 2018

Another federal court reaction to federal sentencing realities of modern drug war

In this post a few weeks ago, I noted an interesting Seventh Circuit ruling which not only explored ineffective assistance of counsel in plea negotiations, but also highlighted how our federal drug laws can functionally operate to turn a seemingly minor crime into an offense carrying a 20-year mandatory minimum.  That post generated a lot of thoughtful comments, leading me to think it worthwhile to spotlight another drug war sentencing tale with a different variation in the work of counsel and court.

Specifically, a couple of helpful readers sent me a notable sentencing memorandum and a recently unsealed sentencing opinion in US v. Smith, No. 6:17-cr-147-Orl-31KRS (M.D. Fla. Feb. 27, 2018). In this case, as explained by the sentencing judge, Judge Gregory Presnell, Tyrone Smith faced a huge increase in his sentence range under the career-offender guideline for two prior low-level cocaine sales:

Smith was arrested and charged in Count 2 of the Indictment with distribution of a mixture containing a detectable amount of carfentanil.  He pled guilty and appeared before me for sentencing.  The PSR (Doc. 80) scored defendant with a base of 24.  Subtracting two levels for his minor role in the offense and three levels for his acceptance of responsibility, his guideline score would be 19.  With a criminal history score of III, his suggested guideline sentence would be 37-46 months. But the prior state court offenses described above make defendant a career offender as defined by USSG 4B1.1.  Application of this enhancement increases defendant’s score from 19-III to 29-VI, resulting in a guideline range of 151-188 months, a 400% increase for selling $120 worth of cocaine ten years ago!

Running through the 3553(a) factors and noting the "growing chorus of federal judges who reject application of the career offender guideline in certain cases," Judge Presnell concluded "that a reasonable sentence in this case is 30 months, which constitutes a modest downward variance from the low end of defendant’s unenhanced guideline score."

I have provided here for downloading counsel's sentencing memorandum for Tyrone Smith as well as Judge Presnell's "Bench Sentencing Opinion":

Download Sentencing memorandum Final

Download Bench Sentencing Opinion

April 15, 2018 in Booker in district courts, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Monday, April 09, 2018

Guest Post: "Do Two Misdemeanors a Felony Make?"

The question in the title of this post is posed by by North Caroline lawyer Bruce Cunningham to set up his discussion of a notable recent decision from his state's top court.  Bruce was kind enough to write up the following for this blog on the ruling:

Last Friday, the North Carolina Supreme Court flirted with, but unfortunately avoided, one of the most important questions impacting modern criminal sentencing; “What is the nature of a prior conviction?”  Can it be used as an ‘element’ of a substantive criminal offense?”  Or, must its role be confined solely to increasing the level of punishment for a crime, but not the level of the crime itself?”

State v Howell, opinion here, involved a conviction for possessing marijuana, a Class 1 Misdemeanor, which carries up to 4 months in jail.  Because the defendant had previously been convicted of the same offense, the Defendant faced being “punished as a Class 1 Felony.” The prosecutor also charged the Def. with being an habitual felon, under the N.C. three strike law.

As a result Howell was sentenced to 29 to 36 months in prison, which was suspended for 36 months on probation.  So, Howell’s conduct on the day of the offense exposed him to 4 months in jail, and his prior record earned him the additional 32 months.

The narrow issue presented in Howell related to the “intent of the legislature” concerning whether the phrase “be punished as a class I felony,” is the equivalent of “committed a class I Felony.  The N.C Supreme said it was.  Because the defendant did not argue a federal constitutional claim, the case will go no further, which leaves open the issue of whether the use of prior convictions as elements of crime passes constitutional muster.

During oral argument in United States v Johnson, both Justice Scalia and Justice Stevens questioned if two misdemeanors can make a felony.  Johnson, No 08-6935, Oral argument transcript p. 49 (October 6, 2009).  Justice Scalia inquired, “Have we ever approved that, by the way, kicking a misdemeanor up to the felony category simply because of recidivism?”

It appears that in McDonald v Massachusetts, 180 U.S. 311 (1901) not only did the Court address the question, it answered “No”.  In McDonald, the Court considered whether habitual felon statutes violated double jeopardy, and stated, “The allegation of previous convictions is not a distinct charge of crimes but is necessary to bring the case within the (habitual felon) statute, and goes to the punishment only.”

There are many felonies in N.C. which are charged because a defendant commits the same misdemeanor twice. Felonious Stalking, Breaking into a Coin Machine, Habitual DWI, Habitual Misdemeanor Assault, etc. There may be other states which have similar “recidivist felonies”

Howell said that it is okay to kick up a misdemeanor to a felony if the legislature intended the elevation of the second misdemeanor.  Justice Scalia’s question of whether the notion of two misdemeanors making a felony passes constitutional muster, must await another day.

April 9, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Friday, April 06, 2018

AG Sessions announces new "zero-tolerance policy" for immigration offenses ... which could mean ... (a lot or no) more fast-track sentencing?

This new Department of Justice press release reports on a notable new announcement from the Attorney General. Here is the substantive heart of the release:

Attorney General Jeff Sessions today notified all U.S. Attorney’s Offices along the Southwest Border of a new “zero-tolerance policy” for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien. The implementation of the Attorney General’s zero-tolerance policy comes as the Department of Homeland Security reported a 203 percent increase in illegal border crossings from March 2017 to March 2018, and a 37 percent increase from February 2018 to March 2018 — the largest month-to-month increase since 2011.

“The situation at our Southwest Border is unacceptable. Congress has failed to pass effective legislation that serves the national interest — that closes dangerous loopholes and fully funds a wall along our southern border. As a result, a crisis has erupted at our Southwest Border that necessitates an escalated effort to prosecute those who choose to illegally cross our border,” said Attorney General Jeff Sessions. “To those who wish to challenge the Trump Administration’s commitment to public safety, national security, and the rule of law, I warn you: illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice. To the Department’s prosecutors, I urge you: promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens. You play a critical part in fulfilling these goals, and I thank you for your continued efforts in seeing to it that our laws — and as a result, our nation — are respected.”...

Today’s zero-tolerance policy further directs each U.S. Attorney’s Office along the Southwest Border (i.e., Southern District of California, District of Arizona, District of New Mexico, Western District of Texas, and the Southern District of Texas) to adopt a policy to prosecute all Department of Homeland Security referrals of section 1325(a) violations, to the extent practicable.

The one-page memo sent from AG Sessions to all federal prosecutors along the Southwest border is available at this link, and the title of this post flags the big follow-up question that I have.

As federal sentencing fans know, the large number of immigration cases historically prosecuted in border districts led to the creation of a special kind of sentencing adjustment (known as a "fast-track" departure) in order to speed case-processing through sentence reductions. If, as this AG Sessions memo suggests, prosecutors on the border are now going to be bringing even more immigration prosecutions, I would expect to see even more "fast-track" departures. But the memo above speaks of bringing the "full prosecutorial powers of the Department of Justice" to those "illegally entering this country." That language would arguably suggest that federal prosecutors ought not anymore be agreeing to lower sentences for offenses under 8 U.S.C. § 1325(a) now that we are to have a "zero-tolerance policy."

April 6, 2018 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, April 04, 2018

"The Expansion of Child Pornography Law"

The title of this post is the title of this new essay authored by Carissa Byrne Hessick now available via SSRN.  Here is the abstract:

This symposium essay identifies two dramatic expansions of child pornography law: Prosecutions for possessing images of children who are clothed and not engaged in any sexual activity, and prosecutions for possessing smaller portions of artistic and non-pornographic images.  These prosecutions have expanded the definition of the term child pornography well beyond its initial meaning.  What is more, they signal that child pornography laws are being used to punish people not necessarily because of the nature of the picture they possess, but rather because of conclusions that those individuals are sexually attracted to children.  If law enforcement concludes that a person finds an image of a child to be sexually arousing, then these laws can subject that individual to punishment, even though the image would have been perfectly innocuous had it been possessed by someone else.

April 4, 2018 in Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

Friday, March 30, 2018

Texas woman sentenced to five years in prison (!?!?!) for voting illegally

When I first saw the basics of this state sentencing story out of Texas, reported under the headline "Tarrant County woman sentenced to five years in prison for illegally voting in 2016," I did not really believe it. Even after reading the details excerpted below, I am still not quite sure I believe that a judge decided it was just and effective to send someone to prison for half a decade for casting a vote illegally:

A judge sentenced a Rendon woman to five years in prison Wednesday for voting illegally in the 2016 presidential election while she was on supervised release from a 2011 fraud conviction. Crystal Mason, 43, waived her right to a jury trial and chose to have state District Judge Ruben Gonzalez assess her sentence.

J. Warren St. John, her defense attorney, said after the verdict was rendered that an appeal had already been filed and he is hopeful his client will soon be released on bond. "I find it amazing that the government feels she made this up," St. John told the court. "She was never told that she couldn't vote, and she voted in good faith. Why would she risk going back to prison for something that is not going to change her life?"...

During her testimony, Mason — who served just shy of three years in federal prison — told the court that she was assigned a provisional ballot after she arrived at her usual polling place and discovered that her name was not on the voter roll.

Gonzalez, who questioned Mason during her testimony, asked why she did not thoroughly read the documents she was given at the time. The form you are required to sign to get the provisional ballot is called an affidavit, Gonzales told Mason. "There's a legal connotation to that, right?" Gonzales asked.

Mason responded that she was never told by the federal court, her supervision officer, the election workers or U.S. District Judge John McBryde, the sentencing judge in her fraud case, that she would not be able to vote in elections until she finished serving her sentence, supervised release included. She also said she did not carefully read the form because an election official was helping her.

During cross-examination by Tarrant County prosecutor Matt Smid, Mason was reminded that she had jeopardized her freedom in the past by violating federal tax laws. Sacrificing her freedom to vote was not something she would knowingly do, Mason told Gonzales. "I inflated returns," Mason said. "I was trying to get more money back for my clients. I admitted that. I owned up to that. I took accountability for that. I would never do that again. I was happy enough to come home and see my daughter graduate. My son is about to graduate. Why would I jeopardize that? Not to vote. ... I didn't even want to go vote."

Mason was taken to jail after the conclusion of her trial on Wednesday as a chorus of small children leaving the courtroom waved and said, "Bye-bye, Big Mama."

Mason, who was known as Crystal Mason-Hobbs at the time, pleaded guilty to fraud in 2011. As part of her plea agreement, she was ordered to pay $4.2 million in restitution, according to court documents. The fraud charge stemmed from a tax preparation business Mason and her ex-husband, Sanford Taylor Hobbs III, owned and operated in Everman in which they submitted inflated tax refunds to the Internal Revenue Service on behalf of clients.

Mason later divorced her husband, who received a similar sentence after he also pleaded guilty. Mason testified Wednesday that she has remade herself since her release from prison, including getting a degree in a new field and getting a new job.

She had gone to vote at her mother's insistence and brought her driver's license as identification, according to her testimony. When poll workers could not find her name on the list of registered voters, Mason said, she obtained a provisional ballot and was coached through the process by a worker. Mason testified that she did not remember the form saying anything about people on supervised release being prohibited from voting.

To register to vote in Texas, a person must be 18 and a U.S. citizen and cannot be a convicted felon or have been declared mentally incapacitated by a court. In Texas, convicted felons can have their voting privileges restored after fully completing their sentences.

I really cannot fully wrap my mind around the notion that the crime of voting once illegally, even if done with great malice, is the sort of offense that should or even could lead to multiple years in prison. Of course, one might think this is a story about how tough Texas is with all criminals.  But a quick Google new search produces these recent stories of seemingly much worse crimes resulting in probation sentences in Texas:

"Hallsville man sentenced to probation in online solicitation of minor case"

"Woman who made up story about being raped by black men is sentenced to probation"

"Jury gives Waco man probation in deadly drunken driving crash"

March 30, 2018 in Examples of "over-punishment", Offender Characteristics, Offense Characteristics | Permalink | Comments (10)

Tuesday, March 27, 2018

"The Scale of Misdemeanor Justice"

the title of this post is the title of this notable new paper authored by Megan Stevenson and Sandra Mayson now available via SSRN. Here is its abstract:

This Article seeks to inform misdemeanor scholarship and policy by creating the most comprehensive national-level analysis of misdemeanor criminal justice that is currently feasible given the state of data collection in the United States.  First, we estimate that there are 13.2 million misdemeanor cases filed in the United States each year.  Second, contrary to conventional wisdom, this number is not rising.  Both the number of misdemeanor arrests and cases filed have declined markedly in recent years.  In fact, arrest rates for almost every misdemeanor offense category have been declining for at least two decades in almost every state for which data is available.  Third, there is profound racial disparity in the misdemeanor arrest rate for most — but not all — offense types. This is sobering if not surprising.  More unexpectedly, perhaps, the variation in racial disparity across offense types has remained remarkably constant over the past thirty-seven years; the offenses marked by the greatest racial disparity in arrest rates in 1980 are more or less the same as those marked by greatest racial disparity today.

Our national caseload estimate confirms current perceptions about the scale of misdemeanor justice, but the declining arrest and case-filing rates present a challenge for misdemeanor scholarship.  Contemporary research on misdemeanors has been influenced by the impression that the system is expanding.  As a result, the theoretical contributions made by recent scholars provide no immediate explanation for the decline in misdemeanor arrests and case-filing rates.  In addition, we document what to us was a surprising degree of uniformity in misdemeanor trends.  Such consistency suggests that the misdemeanor system may have a deeper and more uniform structure than we anticipated, and may be subject to common influences across jurisdictions.  As misdemeanor scholarship develops, we believe that an important challenge is to expand our theories of misdemeanor justice to make sense of the statistical patterns presented here.

March 27, 2018 in Data on sentencing, Offense Characteristics | Permalink | Comments (0)

Monday, March 26, 2018

High-profile New Jersey case highlights many challenges of sentencing drunk drivers who kill (and appellate review of sentences)

1360879220_amy-locane-bovenizer-lgThis local article, headlined "Former 'Melrose Place' actress to be re-sentenced -- again -- in fatal drunken crash," reports on yet another notable sentencing opinion from a high-profile state sentencing case. Here are the basics from the article, with the full opinion and follow-up thereafter:

Former "Melrose Place" actress Amy Locane who was convicted of killing a 60-year-old woman in a drunken 2010 crash will be re-sentenced -- for the second time. An appellate court ruling issued Friday lambasts the judge's lenient three-year sentence for Locane, calling it "striking."

"We expect our colleagues will agree that the sentence in this case, a hair's breath away from illegal, shocks the conscience," the appellate ruling states.

In August 2016, the state's Appellate Division ruled that the leniency granted by state Superior Court Judge Robert B. Reed in sentencing Locane in the Montgomery Township crash that killed Helene Seeman lacked enough explanation. Locane returned to court for resentencing on Jan. 17, 2017. Reed did not give her any additional jail time, angering the victim's family and leaving prosecutors bewildered.

It appears a three-judge appellate court panel is just as confused. "(Locane) went unpunished for the injuries inflicted upon Seeman, despite the fact she could have easily made alternative arrangements the night of the accident and could have easily avoided driving, was extremely intoxicated, and was engaging in risky maneuvers before the crash," the appellate ruling states. "That is an error we cannot correct."

Locane, who was driving with a blood-alcohol level three times the legal limit during the June 27, 2010, crash, was cleared of the manslaughter charge but found guilty of vehicular homicide and assault by auto.

Locane faced up to 15 years in prison. Reed imposed a sentence that was about a fifth of what she faced under the maximum penalty. He cited the former actress' two small children, including one with Crohn's disease, as a reason for the lenient sentence. Locane was out of prison in two-and-a-half years.

In a sit-down interview with NJ Advance Media in November, Locane said she hadn't touched alcohol since the crash. "I know Judge Reed went out on the limb for me and I'm not going to let him down," she said. "When someone sees the good in you like that and gives you a second chance, you don't want to disappoint them."

But Locane's fate this time around won't be up to Reed. "We are thus compelled to remand this matter for re-sentencing before a different judge," the appellate ruling says.

Locane's attorney, James Wronko, said the comments made by the appellate division about Reed "were simply unwarranted."

"Judge Reed is an excellent judge," he said. "We intend to file with the New Jersey Supreme Court to have them review the matter and then we'll proceed from there." Ironically, Wronko said, Locane was in Steinert High School in Hamilton speaking to students about the dangers of drinking and driving as the appellate court issued its ruling Friday morning.

Hard-core sentencing fans should take some time to check out the full opinion of the New Jersey Superior Court Appellate Division in NJ v. Locane, which runs 43 pages and is available at this link. Though a bit dense with Jersey-specific cites, this Locane opinion remarkably covers in various ways so many intricate issues of modern sentencing policy and practice.

Most fundamentally, this case highlights the challenging balance between offense and offender factors in sentencing, as the appellate court is concluding the trial court wrongfully downgraded the severity of the offense by being unduly moved my the defendant's remorse and rehabilitation. But is also, obviously, raises issue about the discretion of sentencing courts and review of that discretion on appeal. In addition, Sixth Amendment and double jeopardy issues arise in the Locane opinion. So too does the role of concurrent and consecutive sentencing, as well as punishment theory as it relates to sentencing drunk drivers (with a little hint to concerns about race, gender and class).  And the opinion's final paragraph highlights still other matters the opinion engages:

In the beginning of this opinion, we referred to the statements made by the victims during the State's presentation, pursuant to the Crime Victim's Bill of Rights, N.J.S.A. 52:4B36[n]. Their comments dovetailed the sentencing goals embodied in the Code, which in this case were not met. In Liepe, the defendant was sentenced to, in real time, life. In this case, defendant was sentenced to a NERA term of three years. The lack of uniformity is striking and in derogation of the Code.

Put slightly differently, anyone teaching a sentencing class might readily build a number of real interesting exam questions around this case and opinion.

March 26, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Sunday, March 25, 2018

"Prison Crime and the Economics of Incarceration"

The title of this post is the title of this notable new paper authored by Ben Gifford now available via SSRN. Here is its abstract:

As America’s prison and jail populations have skyrocketed, a wealth of empirical scholarship has emerged to measure the benefits and costs of incarceration.  The benefits, from an empirical perspective, consist of the amount of crime prevented by locking people up, as well as the value of that prevented crime to society.  The costs consist of direct state expenditures, lost inmate productivity, and a host of other collateral harms.  Once these benefits and costs are quantified, empirical scholars are able to assess whether it “pays,” from an economic perspective, to incarcerate more or fewer criminals than we currently do.

Drawing on this academic literature, policymakers at all levels of government have begun using cost-benefit analysis to address a wide range of criminal justice issues. In addition to evaluating broader proposals to increase or decrease incarceration rates, policymakers are assessing the costs and benefits of myriad narrower reforms that implicate the economics of incarceration.  In each of these areas, policymakers rely heavily on empirical scholars’ work, whether by adopting their general methods or incorporating their specific results.

While these economic analyses of incarceration offer important insights, they suffer from a near-universal flaw: they fail to account for crime that occurs within prisons and jails. Instead, when scholars and policymakers measure the benefits of incarceration, they look only to crime prevented “in society.”  Similarly, when they measure the costs, they ignore the pains of victimization suffered by inmates and prison staff.  This exclusion is significant, as prison crime is rampant, both in relative and absolute terms.

To address this oversight, this Article makes several contributions: First, it provides a comprehensive review of the literature on the benefits and costs of incarceration, and it explores a range of ways in which policymakers are applying this economic framework.  Second, it makes a sustained normative argument for the inclusion of prison crime in our economic calculus.  Third, it draws on the scarce available data to estimate the impact that the inclusion of prison crime has on our cost-benefit analyses.  As might be expected, once prison crime is accounted for, the economics of incarceration become significantly less favorable.

March 25, 2018 in National and State Crime Data, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Wednesday, March 21, 2018

Two more SCOTUS wins for criminal defendants in Ayestas and Marinello

The Supreme Court this morning released two opinions in argued criminal justice cases: Ayestas v. Davis, No. 16–6795(S. Ct. March 21, 2018) (available here) and Marinello v. United States, No. 16-1144 (S. Ct. March 21, 2018) (available here). Here are the line-ups of the votes by the Justices and the start of each opinion for the Court:

Ayestas v. Davis:

ALITO, J., delivered the opinion for a unanimous Court. SOTOMAYOR, J., filed a concurring opinion, in which GINSBURG, J., joined.

Petitioner Carlos Ayestas, who was convicted of murder and sentenced to death in a Texas court, argues that he was wrongfully denied funding for investigative services needed to prove his entitlement to federal habeas relief.  Petitioner moved for funding under 18 U. S. C. §3599(f), which makes funds available if they are “reasonably necessary,” but petitioner’s motion was denied. We hold that the lower courts applied the wrong legal standard, and we therefore vacate the judgment below and remand for further proceedings.

Marinello v. United States:

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.

A clause in §7212(a) of the Internal Revenue Code makes it a felony “corruptly or by force” to “endeavo[r] to obstruct or imped[e] the due administration of this title.”26 U. S. C. §7212(a). The question here concerns the breadth of that statutory phrase. Does it cover virtually all governmental efforts to collect taxes? Or does it have a narrower scope? In our view, “due administration of [the Tax Code]” does not cover routine administrative procedures that are near-universally applied to all taxpayers, such as the ordinary processing of income tax returns. Rather, the clause as a whole refers to specific interference with targeted governmental tax-related proceedings, such as a particular investigation or audit.

A busy day means I am unlikely to have much time to obsess over these two relatively small wins for defendants, but I do have time to make a quick comment about the voting particulars. Specifically, I think it notable in Ayestas that a state capital defendant got a unanimous vote in his favor from the Court and that in Marinello, both the Chief and the newest Justices voted with the majority in favor of the defendant rather than with Justice Thomas's dissent.

March 21, 2018 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, March 20, 2018

Highlighting the Big Apple as a source for In Justice Today

My headline is a not-so-clever attempt to set up the fact that the latest two postings at the always great In Justice Today are focused on not-so-great criminal justice realities in New York.  Here are links to the two recent pieces with excerpts (and links from original): 

"NY Gov. Cuomo’s Terrible, Horrible, No Good, Very Bad Plan to Protect Your Kids" by Guy Hamilton-Smith:

New York Governor Andrew Cuomo recently unveiled a legislative proposal packaged as part of a budget amendment to expand already onerous residency and presence restrictions for some sex offenders in New York.

The proposal expands blanket presence and residency restrictions for sex offenders who are on parole or post-release supervision by vastly increasing the number of places they cannot be near. It would outlaw the presence of some sex offenders within 1,000 feet of school grounds, “any facility or institution that offers kindergarten or pre-kindergarten instruction,” or any other place that is “used for the care or treatment” of minors. The proposal also prohibits level 2 and 3 sex offenders — those whom the state deems most at risk to re-offend — from staying at homeless shelters that serve families, even if they are no longer under supervision.

In dense urban environments like New York City, such restrictions — which make it illegal for sex offenders to merely exist in many places — are tantamount to banishment. While sex offender registries (and many of the restrictions that go along with them) have proven to be ineffective and inhumane, public defenders, experts, and advocates say that few restrictions are as ineffective and punitive as those proposed by Cuomo.

"Despite Leaders’ Progressive Promises, NYC Remains ’Marijuana Arrest Capital of the World’" by Shaun King:

In spite of committing to simply ticketing people for possession of small amounts of marijuana, last year the NYPD arrested an astounding 16,925 people for it. These were not drug lords and kingpins. These were the very low-level offenses they said they’d stop arresting people for.

Do the math. That’s 46 people a day. It’s an enormous waste of time and resources. And it’s horribly disingenuous to publicly make the claim that the arrests are coming to an end when clearly they aren’t.

This literally makes New York City “the marijuana arrest capital of the world,” according to a recent report from the Drug Policy Alliance. And a staggering 86 percent of those arrests are of men and women of color.

And let’s be clear — whites and people of color use drugs at roughly the same rate. Some studies even show that whites actually sell drugs at a higher rate, but people of color make up 86 percent of the arrests here in New York nonetheless.

This is a scandal. And Mayor Bill de Blasio and the NYPD continue to contort themselves to blame anything they can possibly think of other than institutional racism for this racial gulf in arrests and prosecutions.

De Blasio criticized the Drug Policy Alliance report, pointing out that marijuana possession arrests dropped by 37 percent between 2013 and 2016. But that doesn’t explain away the nearly 17,000 arrests last year.

NYPD Chief James P. O’Neill recently said they were making the arrests because people don’t like the smell. Really, man? How about we start arresting people for farts too? Arresting people because someone doesn’t like the smell? That’s not even a good lie.

March 20, 2018 in Collateral consequences, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Monday, March 19, 2018

"Informed Misdemeanor Sentencing"

The title of this post is the title of this notable new paper authored by Jenny Roberts now available via SSRN. Here is the abstract:

There is no such thing as a low-stakes misdemeanor. The misdemeanor sentence itself, which can range from time served to up to twelve years in some jurisdictions, is often significant.  But the collateral consequences of such a conviction can be far worse, affecting a person’s work and home lives for decades, and sometimes for the rest of their lives. As a result of misdemeanor convictions, defendants can be fired from their jobs, barred from future employment in many fields, deported, evicted from public housing together with their entire family, and refused housing by private landlords.

Under most theories of punishment, a judge at sentencing does not simply look back to the crime and its circumstances but also looks forward at the defendant’s future.  Judges imposing sentences in misdemeanor cases should focus forward much more heavily than back, and should consider the collateral effects of a misdemeanor conviction on the defendant’s future.  Viewed through that more expansive lens, and given the broad discretion of judges in misdemeanor sentencing and lack of existing guidance for that discretion, the sentencing function of judges in misdemeanor cases is in serious need of study and reform.

This Article’s goal is two-fold.  First, it contextualizes judicial responsibility for misdemeanor sentencing in the realities of the lower criminal courts, where a number of structural and systemic barriers — including violations of the right to counsel and pressures on judges to move cases along rapidly — affect but do not excuse the way judges go about sentencing.  Second, the Article calls for judges to undertake “informed misdemeanor sentencing,” which draws on principles of proportionality and parsimony in determining the just sentence in a misdemeanor case.  Accordingly, judges should explicitly acknowledge the many serious collateral consequences an individual suffers after any penal sanction, and incorporate those into the sentencing process to ensure that punishment is proportionate.  In addition, judges should bring parsimony into the sentencing process by making more use of deferred adjudication as well as expungement and related mechanisms for mitigating the unintended effects of a misdemeanor conviction.

March 19, 2018 in Collateral consequences, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, March 08, 2018

You be the sentencing juror: what punishment for deadly drunk driving by Texas State college student?

UntitledThe question in the title of this post is prompted by this local article in Texas, headlined "‘I’m guilty’: Former Texas State student testifies in deadly DWI crash," which highlights that in the Lone Star State jurors are sometimes called to serve as primary sentencers in non-capital cases.   Here are some case particulars via the local press piece:

When Shana Elliott took the stand Thursday morning, she admitted: “I’m guilty.” Elliott, 22, says she was intoxicated and should not have been driving the evening of Aug. 2, 2016, after a day of tubing on the San Marcos River. “We decided to go float the river, we weren’t thinking ahead, we didn’t plan who was going to be driving,” Elliott said on the stand. “The float ended around 5 and that’s when nobody else was going to drive and I decided that I would.”

On that day, Elliott, who was 21 years old at the time, allegedly drove drunk and ran head-on into a car on State Highway 21 killing 23-year-old Fabian Guerrero Moreno and injuring his pregnant wife, Kristian Nicole Guerrero. Guerrero was five months pregnant. The unborn child did not survive.

Elliott says before the crash she dropped her friends off at their homes then decided to drive home herself. “It’s really blurry, I just remember as soon as the accident happened, I know that I made the worst decision ever.”

She says she got out of her car at the scene of the crash and ran to the other vehicle. “I just remember fighting, I wanted to go to make sure they were okay,” she said. “I’m sorry. I accept responsibility and I know what I did was wrong.”

At Elliott’s home, investigators found meth, heroin and a large bag of marijuana.  On the stand Elliott admitted to being addicted to heroin at one time, she said she smoked marijuana, but never did meth. She says after a previous arrest for drugs she had plans to sober up.

While Elliott was on the stand, prosecutors presented a large bottle of alcohol that was found at the crash site.  Elliott told the jury it was hers, adding it was full before she and her friends began floating the river.

Prosecutors also played recordings of phone calls Elliott made from jail. In one of the recordings, Elliott is talking with her boyfriend, speculating the other victims of the crash were part of the cartel. In another recording, Elliott can be heard joking and laughing with her friends about getting her eyebrows threaded in jail just four days after the crash.

Elliott’s grandmother Eleanor Brumley also took the stand Thursday morning. “She was determined to make something of herself,” said Brumley. “I’ve always been proud of her.” Brumley describes Elliot’s childhood as difficult. She says her father died of a heart attack and her stepdad was an alcoholic and was abusive mentally and emotionally. “Shana would deal with that and walk out the door with a smile on her face. She didn’t complain. She’s always thinking of everybody else,” said Brumley.

Elliott says she tried to deal with the abuse herself, but when she arrived at college she sought psychiatric help through a doctor at Texas State University.  She claims the doctor diagnosed her with depression, anxiety and slight PTSD stemming from her difficult childhood.

At the time of the crash, Elliott was a senior at Texas State University. Records show her blood alcohol content was .199 at the hospital.  On Monday, Elliott entered a plea of guilty for two counts of intoxication manslaughter and intoxication assault. The jury is expected to decide her punishment this week.

UPDATE: This local article reports on the jury's sentencing decision:

Shana Elliott, a former Texas State University student, was sentenced to seven years in prison Friday afternoon on each count in the deaths of a man and his unborn child.... Elliott, who pleaded guilty Monday, received seven years in prison each for two counts of intoxication manslaughter with a vehicle in the deaths of Fabian Guerrero-Moreno and his unborn child, who were killed in a drunk driving crash in August 2016.

March 8, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22)

Wednesday, March 07, 2018

"Lethal Rejection: An Empirical Analysis of the Astonishing Plunge in Death Sentences in the United States from Their Post-Furman Peak"

The title of this post is the title of this interesting new paper by David McCord and Talia Roitberg Harmon now available via SSRN. Here is the abstract:

The authors gathered information on 1665 death-eligible cases nationwide for three years at decade intervals: 1994, 2004, and 2014.  In 517 cases death sentences were imposed; in 311 cases sentencers spared the defendants from death sentences, and in 837 cases prosecutors spared defendants from death sentences.  The Article proceeds in three Parts. Part I explains the methodology for unearthing relevant data and preparing it for analysis.  Part II analyzes declines in death sentences due to decreasing death eligibility, that is, fewer murderers over time meeting the criteria that made death a sentencing option.  Four reasons are examined: fewer death-eligible murders, the United States Supreme Court’s exemptions of juveniles who were less than eighteen years of age at the time of the commission of the murder, and persons with intellectual disability (known to the law as the “mentally retarded”); and the abolition of the death penalty in several states.  This Part concludes that about half of the decline in death sentences is attributable to decreased death-eligibility, mostly due to the steep decrease in the number of death-eligible murders.

Part III examines increasingly narrower perceptions of death-worthiness, that is, the evolution in attitudes among prosecutors and sentencers toward deeming fewer among the many death-eligible defendants worthy of death sentences.  This Part requires the most complicated analysis because unlike death-eligibility decisions, which are dictated by law, death-worthiness decisions emerge from an opaque brew of many factors, including, but not limited to, resource differentials among jurisdictions, prosecutorial attitudes, the wishes of the murder victim’s survivors, defense counsel performance, public opinion, and sentencer reactions.  But while death-worthiness decisions are often opaque in individual cases, each case generates empirical data from which patterns may be discerned. Part III uses such data to analyze ten questions and arrive at tentative answers:

• Did the advent of life-without-parole (hereinafter “LWOP”) reduce death sentences in jurisdictions where it was added as an option? (only in Texas)

• Did sentencers become more reluctant to return death sentences? (no)

• Were death sentences decreasingly imposed in less aggravated cases and increasingly imposed in more aggravated cases? (to some extent)

• Did presentation of greater numbers of mitigating factors conduce to fewer death sentences? (no)

• Did robbery during a murder became a less powerful aggravator? (yes)

• Did 18-to-20 year-olds benefit from a ripple effect from the exemption of juveniles? (yes)

• Did death sentences become less common in multiple perpetrator cases? (yes)

• Did low population counties increasingly drop out of death sentencing? (yes)

• Did low revenue counties increasingly drop out of death sentencing? (no) and

• Did a few traditionally high-volume death sentencing counties skew the figures by cutting back on the use of the death penalty due to local political factors? (yes)

March 7, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Tuesday, March 06, 2018

Federal prosecutors seeking (way-below-guideline) sentence of 15 years for "Pharma Bro" Martin Shkreli

As reported in this new Reuters piece, "U.S. prosecutors on Tuesday said former drug company executive Martin Shkreli should spend at least 15 years in prison after being convicted of fraud, saying his lack of remorse and respect for the law justified a long time behind bars." Here is more, with a final point stressed for commentary:

The request by the Department of Justice came three days before Shkreli’s scheduled sentencing by U.S. District Judge Kiyo Matsumoto in Brooklyn federal court. Prosecutors called Shkreli “a man who stands before this court without any showing of genuine remorse, a man who has consistently chosen to put profit and the cultivation of a public image before all else, and a man who believes the ends always justify the means.”

Shkreli, 34, had requested a 12-to-18-month term following his conviction last August for lying to investors about the performance of his hedge funds MSMB Capital and MSMB Healthcare, and conspiring to manipulate the stock price of the drug company Retrophin Inc. Known as “Pharma Bro,” in part for his ability to attract attention, Shkreli is perhaps best known for raising the price of the anti-parasitic drug Daraprim by more than 5,000 percent in 2015, while serving as chief executive of Turing Pharmaceuticals, now called Vyera Pharmaceuticals....

Shkreli has been in jail since September, when Matsumoto revoked his bail after he offered social media followers $5,000 for a hair from former U.S. presidential candidate Hillary Clinton. On Monday, Matsumoto ordered Shkreli to forfeit $7.36 million of ill-gotten gains. She said he may be forced to give up assets such as a Picasso painting and a one-of-a-kind Wu-Tang Clan album if he cannot find the money....

In a letter to the judge last week, Shkreli said he accepted that he had made “serious mistakes,” but still considered himself “a good person with much potential.”

But prosecutors said that while in jail, Shkreli has privately expressed disdain for his conviction and the judicial process, providing further evidence he does not deserve mercy. It cited a January email conversation where Shkreli allegedly wrote “fuck the feds” and expressed hope for a big tax refund because only his “liquid money” was affected by the forfeiture. “Shkreli’s email communications confirm that any remorse he may express publicly is a carefully constructed facade,” prosecutors said.

A 15-year term is shorter than the minimum 27 years recommended under federal guidelines. Brafman has called that length “draconian and offensive.”

There is much in this story and in this high-profile sentencing that merits commentary, but I am especially struck by the decision by federal prosecutors to request a sentence here that is more than a decade below the advisory guideline range.  Recall that the May 2017 Sessions Memo said federal prosecutors "should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553. In most cases, recommending a sentence within the advisory guideline range will be appropriate."  This high-profile case is still more proof that federal prosecutors recognize that the applicable federal sentencing guidelines for at least some fraud offenses are not reasonable and can be unreasonable extreme by more than a decade.

Prior related posts:

March 6, 2018 in Federal Sentencing Guidelines, Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Sunday, March 04, 2018

Noting lengthy struggles in California over the definition of a violent crime

Federal sentencing practitioner know all too well how hard it can be to clearly define what offenses qualify as a "crime of violence" or a violent felony. And while the federal jurisprudence over this issue can be hellish, states can struggle with similar issues in various contexts.  This new Los Angeles Times article, headlined "How a list of 23 crimes now dominates California's debate over prison punishment," explains:

Consider the last two years of debate over what should, and should not, be a "violent" crime. That debate begins with the index of crimes in section 667.5 of the California Penal Code. The list was first enacted in 1976, and has been tinkered with so many times it's hard to say whether it's a fair representation of the most heinous crimes.

Here's why that matters: The list is now a key part of determining which California prison inmates are eligible for early parole under Gov. Jerry Brown's 2016 ballot measure, Proposition 57. A legal fight over how to interpret the ballot measure could become a potent political issue.

Brown signed the law creating the original list of violent crimes during his first tour of duty as governor. It's since been amended or expanded 38 times, the last effort in 2014. Eight specific offenses or crime categories were in the original version. Now, there are 23 crimes. The list almost doubled in size in just the five years between 1988 and 1993.

So what's included? Some violent crimes are relatively straightforward — murder, attempted murder, voluntary manslaughter, robbery, kidnapping. (Kidnapping, interestingly, was dropped from the list in 1977 with no noteworthy explanation and added back in 1991.) Some additions, like the inclusion of carjacking in 1993, were sparked by news events. A prosecutor told The Times that year that classifying the crime as "violent" would give "local district attorneys another weapon in their arsenal to attack this epidemic."

Voters opted to tweak the law twice, making substantial changes that weren't well publicized in those elections. Proposition 21 in 2000 removed the long-standing focus on specific kinds of robberies — those in someone's home and involving a "deadly or dangerous weapon" — and instead made "any robbery" a violent crime. In 2006, voters added more definitions of sex crimes.

And yet other crimes have long been sliced relatively thin. Only specific circumstances in the case of rape or first-degree burglary are on the list of violent crimes. It's doubtful, as a result, that the 23 offenses cover everything the average Californian would think of as being "violent."

This might not be a pressing issue if not for the changes brought on by Brown's 2016 ballot measure, which expanded parole opportunities to those serving time for a "nonviolent felony offense." That phrase is brand new, and Proposition 57 placed the term in the California Constitution.

It's unclear, though, whether "nonviolent felony offense" is just another way of saying any crime that's not on the list of violent crimes. A Sacramento Superior Court judge last month rejected that idea. At the same time, the judge ruled that some convicted sex offenders — who the Brown administration has deemed ineligible under Proposition 57 — should be considered for release because they weren't convicted of one of the 23 crimes.

Judge Allen Sumner's ruling seemed to hint that current law is full of knots crying out to be untangled. He wrote that "it is by no means clear what the voters understood, or intended, the term 'nonviolent' to mean."

Some prior related posts:

March 4, 2018 in Offense Characteristics, Sentences Reconsidered | Permalink | Comments (2)

Thursday, March 01, 2018

"The Politics of Prosecution: Examining the Policymaking Role of Prosecutors"

The title of this post is the title of this new paper available via SSRN authored by Abhinav Sekhri. Here is the abstract:

This short paper focuses on prosecutors in the federal setting and contributes to this growing field of scholarship.  Through the lens of Prosecutorial Agreements in the sphere of corporate criminal liability, I demonstrate that prosecutors engage in important policy making exercises.  I argue that this analysis helps better understand the constrains in which prosecutorial discretion is exercises, and here I suggest how such an analysis offers a more nuanced reading of the prosecutorial charging practices in corporate crime over the last two decades.  I conclude by suggesting that examining the policymaking potential of prosecutors merits great attention today, as the importance of these actors within the criminal justice system is being appreciated beyond legal spheres.

March 1, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, February 22, 2018

Florida Supreme Court finds that state's Miller fix statute to death with Eighth Amendment problems has Alleyne Sixth Amendment problem

The Florida Supreme Court issues an interesting ruling today dealing with juvenile sentencing in Williams v. Florida, No. SC17-506 (Fla. Feb 22, 2018) (available here). Here are the basics from the start of the ruling: 

This case is before the Court for review of the decision of the Fifth District Court of Appeal in Williams v. State (Williams II), 211 So. 3d 1070 (Fla. 5th DCA 2017).  In its decision, the Fifth District ruled upon the following question certified to be of great public importance:

DOES ALLEYNE V. UNITED STATES, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), REQUIRE THE JURY AND NOT THE TRIAL COURT TO MAKE THE FACTUAL FINDING UNDER SECTION 775.082(1)(b), FLORIDA STATUTES (2016), AS TO WHETHER A JUVENILE OFFENDER ACTUALLY KILLED, INTENDED TO KILL, OR ATTEMPTED TO KILL THE VICTIM?

Id. at 1073. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons explained below, we hold that Alleyne requires a jury to make the factual finding, but conclude that Alleyne violations are subject to harmless error review. Where the error cannot be deemed harmless, the proper remedy is to resentence the juvenile offender pursuant to section 775.082(1)(b)2., Florida Statutes (2016).

As the opinion goes on to explain, the statute here was passed when Florida had to comply with the Supreme Court's Eighth Amendment Miller ruling precluding mandatory LWOP sentences for juvenile murderers.  The statute provides that a finding that "a juvenile offender actually killed, intended to kill, or attempted to kill the victim leads to a minimum forty-year sentence with a sentence review after twenty-five years — whereas a finding that the offender did not actually kill, intend to kill, or attempt to kill the victim results in there being no minimum sentence and a sentence review after fifteen years."

The Florida Supreme Court was unanimous here in concluding that this statute has to comply with Alleyne's Sixth Amendment ruling that jury trial rights extend to any fact that raises a binding minimum sentence.  Hard-core sentencing proceduralists might still want to check out the Court's discussion, especially because there is an interesting partial dissent that starts this way:

I agree with the majority that under Alleyne v. United States, 570 U.S. 99 (2013), the factual findings provided for in section 775.082(1)(b), Florida Statutes (2016), must be made by the jury and that the absence of such jury findings in this case requires reversal of the sentence imposed under section 775.082(1)(b)1. and resentencing in the trial court.  But I dissent from the majority’s direction regarding the remand, which requires imposition of the less severe sanction available under the statute.  Because the issue of the remedy on remand has not been briefed in this case, I would simply direct remand for resentencing rather than preclude jury proceedings that might result in imposition of the more severe sentence under the statute.

February 22, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, February 20, 2018

Special counsel Mueller subjects yet another low-level, non-violent offender to federal sentencing

The slightly cheeky title for this post is my gut reaction to the latest news emerging from the latest work by federal prosecutors working with special counsel Robert Mueller.  This BuzzFeed News piece, headlined "The Special Counsel's Office Has Charged A Lawyer Working For The Ukrainian Government With Lying To The FBI," reports the following (with links from original):

The special counsel's office has charged a lawyer who did work for the Ukrainian Ministry of Justice with lying to the FBI, according to court filings unsealed on Tuesday.

Alex van der Zwaan, an attorney, is accused of lying to investigators about his interactions with Rick Gates — the former Donald Trump campaign official and longtime associate of Paul Manafort who is also facing criminal charges in the special counsel's investigation — and an unidentified individual referred to in charging papers as "Person A."

Van der Zwaan is due in court on Tuesday afternoon for a plea hearing.  He is expected to plead guilty.

According to the criminal information filed by special counsel Robert Mueller's office, which is dated Feb. 16, investigators asked van der Zwaan in November about his work in 2012 for the Ukraine Ministry of Justice preparing a report on the trial on Yulia Tymoshenko, the former Ukrainian prime minister.

Van der Zwaan is accused of falsely telling investigators that his last communication with Gates was an "innocuous text message" in mid-August 2016, when he had spoken with Gates in September 2016 about the Tymoshenko report.

Prosecutors alleged that van der Zwaan falsely said that his last communication with Person A was a conversation in 2014 when they "discussed Person A's family," when he spoke with Person A in September 2016 about the Tymoshenko report.

Van der Zwaan is also accused of deleting and failing to produce emails to the special counsel's office and a law firm referred to as "Law Firm A," including email between him and Person A in September 2016.

Van der Zwaan's case is the sixth criminal matter made public by the special counsel's office. Prosecutors on Friday announced that a federal grand jury had indicted the Russian-based Internet Research Agency (IRA), two other Russian entities, and 13 Russian individuals, accusing them of interfering with the 2016 election. The special counsel's office also unsealed a criminal case against a California man who pleaded guilty to identity fraud.

The criminal information unsealed on Tuesday does not specify what law firm van der Zwaan worked for when he prepared the Tymoshenko report, but earlier news articles identified an Alex van der Zwaan as being part of a team from the law firm Skadden, Arps, Slate, Meagher & Flom that prepared a report about Tymoshenko for the Ministry of Justice in 2012.  Skadden released a statement Tuesday morning saying that the "firm terminated its employment of Alex van der Zwaan in 2017 and has been cooperating with authorities in connection with this matter."

Van der Zwaan's firm biography is no longer on Skadden's website, but the Internet Archive's Wayback Machine archived a version of it. The page stated that he served "as rule-of-law consultant to the Ministry of Justice of Ukraine" and wrote "a report on due process issues associated with a high-profile prosecution."

Van der Zwaan did not have a lawyer listed on the public court docket. Van der Zwaan is the son-in-law of German Khan, a Russian bank owner who is suing BuzzFeed News over the publication of an unverified dossier of information concerning President Donald Trump.

February 20, 2018 in Offense Characteristics, White-collar sentencing | Permalink | Comments (9)

Thursday, February 15, 2018

Interesting statements from Senate Judiciary Committee on Sentencing Reform and Corrections Act of 2017 ... and now passage by 16-5 vote!

As I write this, the Senate Judiciary Committee is in the midst of a discussion of the Sentencing Reform and Corrections Act of 2017, and the discussion is quite interesting (though relatively predictable given the articulated past and present positions of various members).   The discussion can be followed at the SJC website here, where one can also find a host of amendments offered by members and Senator Chuck Grassley's official statement.  Here is a portion of Senator Grassley's statement, which summarizes the bill and also why Senator Grassley has become its chief advocate:

Today, we’re also marking up the Sentencing Reform and Corrections Act. This legislation reforms mandatory minimum prison sentences to focus on the most serious drug offenders and violent criminals. This is a bipartisan bill that cuts costs, reduces crime, and optimizes the criminal justice system. It is supported by a diverse array of groups including FreedomWorks, the American Conservative Union, Prison Fellowship, Families against Mandatory Minimums, the NFL, the ACLU, and the NAACP.

It is also a bill with policies that enjoy broad national support. A recent poll showed that the American people strongly support improving our criminal justice system. 87% of Americans and 83% of Republicans believe that mandatory minimums for nonviolent offenders should be replaced by a system focused on judicial discretion. 76% of Americans and 68% of Republicans believe the criminal justice system needs significant improvements. 87% of Americans and 80% of Republicans think we’re spending too much money on prisons that should be used instead for treatment, rehabilitation, law enforcement, and victim services.

The bill gives judges additional discretion in sentencing defendants with minimal non-violent criminal histories that may trigger mandatory minimum sentences under current law. It also applies some of these reforms retroactively, including the Fair Sentencing Act.  But before this happens, judges must first review eligible inmates’ individual cases, including criminal histories and conduct while incarcerated to determine whether a sentence reduction is appropriate.

Importantly, the bill preserves cooperation incentives to aid law enforcement in tracking down kingpins and stiffens penalties for individuals convicted of serious violent felonies. It also adds new mandatory minimums for certain crimes involving interstate domestic violence and the provision of weapons to terrorists and prohibited countries.

Additionally, it creates a new five-year sentencing enhancement for trafficking of heroin laced with fentanyl.  In addition, the bill establishes recidivism reduction programs to help prepare low-risk inmates to successfully re-enter society. Qualifying inmates may receive reductions to their sentences through time credits upon successful completion of recidivism reduction programming....

Yesterday, Attorney General Sessions sent us a letter setting forth his views on the Sentencing Reform and Corrections Act.  When I read his letter, it was almost as if Senator Sessions was back on the Judiciary Committee.  But that’s the problem. He is now the Attorney General and is charged with executing the laws that Congress passes, not interfering with the legislative process.  Certainly we value input from the Department of Justice, but if General Sessions wanted to be involved in marking up this legislation, maybe he should have quit his job and run for the Republican Senate seat in Alabama.

I’ve talked to Attorney General Sessions about this bill many times. He opposes the elimination of mandatory minimums, as do I.  He believes in being tough on crime, and so do I. But I also believe in being fair.  This is a view shared by the last Republican Attorney General, Michael Mukasey, who testified in support of this bill last Congress. So we have one Republican Attorney General who thinks this bill is good policy, and one who has some concerns....

This bill is good public policy. It is the result of years of careful negotiations.  We’ve demonstrated that this bill has significant bipartisan support.  Twenty-two United States Senators are cosponsors, including more than half of the members of this committee.  I look forward to continuing to work with the administration and the House on a legislative solution that the President can sign into law.

A few prior related posts:

UPDATE: Around 12noon and after an interesting debate over an amendment proposed by Senator Cruz to strip the SRCA of its retroactivity provisions and other reforms, the full SJC voted finally on the bill as proposed and voted 16-5 in favor of it. Now the issue becomes whether Senate Majority Leader will bring the bill to the Senate Floor for a full vote. I fear he will not, but we shall see.

February 15, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (6)

Wednesday, February 14, 2018

Notable advocate for clemency on behalf of next condemned to die in Texas

According to this Death Penalty Information Center page, Alabama, Florida and Texas all have executions scheduled for February 22.  This new Los Angeles Times story, headlined "Texas father seeks clemency for son who tried to kill him," discusses the notable person making a notable pitch for clemency for the killer scheduled to be executed.  Here are excerpts:

In a week, Thomas "Bart" Whitaker, 38, is scheduled to be executed for plotting a 2003 attack that left his mother and brother dead and almost killed his father. That father, Kent Whitaker, is doing everything he can to halt the execution. Inspired by his Christian faith and his son's repentance, the 69-year-old retired construction firm comptroller hopes to have his son's sentence commuted.  "The death penalty in this case is the wrong punishment," he said.

Kent Whitaker forgives his son. He paid for lawyers to fight the death sentence at trial in 2007, and got down on his knees and begged prosecutors to seek a life sentence.

Texas is known for capital punishment, executing more inmates than any other state in the country — three this year, seven last year. But Kent Whitaker notes that it is also a victims' rights state, meaning his wishes should be taken into account. "Juries routinely defer to victims in cases to spare the life of a killer," he said.

Thomas Whitaker's last chance is a clemency petition filed with the seven-member Texas Board of Pardons and Paroles, which makes a recommendation to the governor by majority vote.  Clemency is rare.  One of Whitaker's attorneys won it for another convicted murderer, Kenneth Foster, hours before he was scheduled to die in 2007, based on arguments drawn from Scripture.  Parole board members in Texas are bound by their consciences, not the law, and some told the lawyer afterward that his biblical arguments had influenced their votes.

So in Thomas Whitaker's clemency petition, his attorney cited the Old Testament story of Cain, who after murdering his brother Abel was marked — but not killed — by God. He also cited the New Testament parable of the prodigal son, forgiven and accepted by his father after he strayed because he repented. "You have a collision between two interests. Every one of those board members is a death penalty supporter. A nd every one of them is there to protect victims' interests. They have to decide if it is more important to execute Thomas Whitaker or spare Kent Whitaker," attorney Keith Hampton said.

Board members don't confer about clemency: They send their votes to the state individually. Condemned inmates and their families can request to meet a member of the board, but it's not guaranteed.   Last week, board member James LaFavers, a former Amarillo detective, met Whitaker's son on death row. They spent two hours talking. On Tuesday, the chairman of the board, former Lubbock County Sheriff David Gutierrez, met with Kent Whitaker, his new wife and brother in Austin for half an hour.  The chairman didn't ask any questions, just listened as Kent Whitaker made his case for clemency. He said his son had been a model prisoner for 11 years, that the family had asked prosecutors not to seek the death penalty at trial and "it ought to mean something when a victim asks for mercy."

Thomas Whitaker has confessed to plotting the murder of his family. His father believes he has reformed behind bars. Prosecutors disagree.

Whitaker was a troubled teenager.  After he was arrested for breaking into his high school with friends to steal computers, his parents sent him to a private Christian school, then Baylor University and Sam Houston State University. But he stopped attending.  The night of the attack, the family went out to dinner to celebrate his graduation, unaware that it was a lie — he had missed too many classes....

As they entered their house in the Houston suburb, an accomplice shot them, fatally wounding his mother, Tricia, 51, and 19-year-old brother, Kevin. A bullet passed just inches from Kent Whitaker's heart. Thomas Whitaker was shot in the arm to make it appear he too was a victim.  He then called 911.  It would be years before he admitted his role in the crime. A thousand people attended the funeral at the largest church in the family's conservative suburb, Sugar Land — including Thomas Whitaker. "He sat there smiling, acting as victim, knowing that he killed them," prosecutor Fred Felcman said.  Shortly before Whitaker was to be charged in 2004, he fled to Mexico, where he was caught a year later.

Felcman argued at trial that Whitaker planned to kill his family for a million-dollar inheritance. He had two accomplices — the gunman, who pleaded guilty in exchange for a life sentence, and a getaway driver, who got 15 years in prison. Although Whitaker was not the triggerman, Felcman argued, he "was the ringleader. He literally led his family back to be assassinated."

Felcman said Kent Whitaker has been used by his son. "Most people have a conscience so they don't try to manipulate people outright. He does," Felcman said.  The prosecutor has tried 13 capital cases. About half resulted in death sentences. "There's certain crimes you have to forfeit your life for," he said, in part because it's the will of the people. "As soon as Bart Whitaker gets executed I will feel safer, and there are other people who feel that way, too."...

If the board doesn't grant clemency, Whitaker plans to attend his son's execution. When his son looks out of the glassed-in chamber, he wants him to see a caring face among the crowd. Kent Whitaker already has nightmares about what he will witness.   "I hope the board will focus on how this execution will affect those of us who are living," he said. "We've all worked hard to get past our grief, and we're all going to be thrown back into that, realizing that Bart's gone too, that he was the last member of my immediate family. It looks like I'm going to be victimized all over again. What kind of justice is that?"

February 14, 2018 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, February 07, 2018

Sentencing Reform and Corrections Act of 2017 on the agenda for the Senate Judiciary Committee coming meeting

A helpful colleague made sure I saw the exciting news appearing at the very bottom of this agenda for an Executive Business Meeting of the United States Senate Committee on the Judiciary.  After a long list on nominees, we see on that agenda this item:


II. Bills
S.1917 Sentencing Reform and Corrections Act of 2017 (Grassley, Durbin, Graham, Feinstein, Lee, Leahy, Flake, Whitehouse, Klobuchar, Booker)   

I think this notice means that there is now some tangible movement (dare I say momentum) on one very significant federal criminal justice proposal.  Clicking though to the text of S.1917 Sentencing Reform and Corrections Act of 2017, one discovers that this bill has a whole lot of stuff stuffed into its three big sections. For example, "TITLE I — SENTENCING REFORM" includes, inter alia:

Sec. 101. Reduce and restrict enhanced sentencing for prior drug felonies."

Sec. 102. Broadening of existing safety valve....

Sec. 106. Mandatory minimum sentences for domestic violence offenses....

Sec. 108. Inventory of Federal criminal offenses.

Sec. 109. Fentanyl.

And "TITLE II — CORRECTIONS ACT" includes, inter alia:

Sec. 202. Recidivism reduction programming and productive activities.

Sec. 203. Post-sentencing risk and needs assessment system....

Sec. 207. Promoting successful reentry.

Sec. 208. Parole for juveniles.

Sec. 209. Compassionate release initiative.  

And "TITLE III — NATIONAL CRIMINAL JUSTICE COMMISSION ACT" would create another notable federal criminal justice entity.

I can state with confidence that Attorney General Jeff Sessions is surely opposed to the provisions in Title I of this bill, but I he may be supportive of Title II and maybe even Title III. And, of course, since he is no longer in the Senate, Jeff Sessions does not get a vote on legislation, and it will be interesting to see (assuming there is a vote tomorrow of sometime soon) whether there are many (or any) strong opponents of this bill even in this huge form.

February 7, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Thursday, February 01, 2018

Texas completes its thirs execution of 2018

As reported in this local article, headlined "John Battaglia jokes with his ex-wife before being executed for killing their girls while she listened in horror," a death sentence was carried out tonight in Texas. Here are the details:

John David Battaglia went out with a joke and a grin. Battaglia, 62, offered no apologies and showed no remorse for killing his daughters at his Deep Ellum loft in 2001.

He seemed jovial, strapped to a gurney while witnesses arrived to watch his execution at the state's Huntsville Unit. As they filed in, he looked around and asked, "How many people are there? Oh, that's a lot."

The one-time accountant even said hello to his ex-wife, Mary Jean Pearle, who was there to watch him die. "Well, hi, Mary Jean. I'll see y'all later. Bye," he said. "Go ahead, please."

He closed his eyes for several moments, and shortly after the lethal injection was administered, he looked at the chaplain at his feet, smiled and asked, "Am I still alive?" Battaglia grinned and then sighed. "Oh, here, I feel it," he said. It took about 22 minutes for him to be pronounced dead at 9:40 p.m.

Battaglia was the third man executed this year in the nation, all in Texas, and the second killer from Dallas put to death this week. His execution brought an end to a lengthy legal battle to spare his life. He was twice granted a stay so his mental competency could be evaluated, and his attorneys filed last-ditch efforts Thursday to delay the execution.

Battaglia received national attention in May 2001 after he gunned down his 9-year-old daughter, Faith, and 6-year-old Liberty at his Deep Ellum loft while their mother listened helplessly on the phone. At the time, he was on probation for hitting his ex-wife, the girls' mother, and she had been trying to have him arrested for violating that probation.

"Mommy, why do you want Daddy to have to go to jail?" Faith was told to ask her mother, moments before the girl begged for her life. "No, Daddy. Don't do it."

Last week, his attorneys filed a request for a stay of execution to the U.S. Supreme Court saying that Battaglia did not fully understand why he was being put to death. "Although he is aware of the state's rationale for his execution, he does not have a rational understanding of it," appellate attorneys Michael Mowla and Gregory Gardner wrote.

Battaglia, himself, said in a 2014 interview with The Dallas Morning News that he didn't recall committing the crime and still considered the girls his "best little friends."... In his Texas appeals, his attorneys wrote that Battaglia was "convinced that his trial and conviction were a sham" and that his death sentence was all part of a conspiracy involving "the KKK, child molesters and homosexual lawyers."...

A state judge and the state appeals court, however, described Battaglia as highly intelligent, competent and not mentally ill. They argued he was faking mental illness to avoid execution. Testimony at a hearing showed Battaglia used the prison library to research capital case rulings on mental competence and discussed with his father the "chess game" of avoiding execution....

Pearle, the killer's ex-wife and the mother of his victims, was at the Huntsville Unit on Thursday to witness his execution — almost 17 years after she listened to Faith and Liberty die and pleaded for them to run away from their father. On Thursday, she leaned in as close as she could to the window separating the witnesses from the death chamber. Pearle watched as Battaglia's breathing grew heavy and then stopped. "I've seen enough of him," Pearle said as she walked away.

February 1, 2018 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (5)

Tuesday, January 30, 2018

Texas carries out its second execution of 2018

As reported in this local article, a "Dallas man who was already on parole for the murder of his estranged wife when he stabbed and strangled his ex-girlfriend in 1999 begged for forgiveness and thanked God with his final breaths before his Tuesday night execution." Here is more:

"I've asked God to forgive me.  Please find it in your hearts to forgive me," William Earl Rayford said before he died by lethal injection at 8:48 p.m.  The 64-year-old asked his victim's family for forgiveness and promised to keep them in his prayers, according to a Texas Department of Criminal Justice spokesman....

The execution, which took 13 minutes to carry out, was delayed more than two hours in light of a pair of pending Supreme Court appeals, including claims that racially biased testimony tainted his sentencing.

With another execution on the calendar for Thursday, this week could be the first time in five years the Lone Star State has seen back-to-back executions so close together.  The next death date on the calendar is for John David Battaglia, who was convicted of killing his two daughters in 2001 while narrating the slayings to his estranged wife on the other end of the phone.  The scheduled execution comes two weeks after Texas carried out the nation's first execution of 2018 with the lethal injection of Houston-area serial killer Anthony Shore.

Rayford was first sent to death row 17 years ago, following the gruesome slaying of Carol Hall. The crime eerily echoed a 1986 killing that netted him a 23-year prison sentence....

In the years since his arrival on death row, Rayford, who is black, has launched appeals centering on claims of bad lawyering, brain damage and a suicide attempt that his lawyers argued showed remorse and hinted that he may not be a future danger.  This week, in a flurry of last-minute filings in the Supreme Court — including one late Tuesday — Rayford's lawyers argued that racially charged testimony during the punishment phase of trial "irreparably stained" the case....  But late Tuesday — after the execution had been delayed for more than two hours — the court rejected both of Rayford's bids for reprieve....

Last year, Texas led the nation in executions with seven condemned men put to death. The Lone Star State is the only state to execute a prisoner so far this year. Rayford's execution was the second nationwide this year.

January 30, 2018 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (5)

"Expansion of the Federal Safety Valve for Mandatory Minimum Sentences"

Download (7)The title of this post is the title of this relative short "Issue Brief" from FreedomWorks authored by Jason Pye and Sarah Anderson. The five-page document provides a basic overview of the federal statutory safety valve in 18 U.S.C. § 3553(f) which, as the brief explains, provides "an exception to mandatory minimum sentences for nonviolent drug offenders with little to no criminal history." Here are excerpts:

The Sentencing Reform Act, Sentencing Reform and Corrections Act, and the Smarter Sentencing Act proposed an expansion of eligibility for the safety valve by increasing the number of criminal history points an offender may have on his or her record.  The safety valve does not prevent an eligible offender from serving time in prison.  It does, however, reduce overcrowding and allows the limited number of prison beds to be used for violent criminals.  The safety valve also restores a partial measure of judicial discretion, allowing a judge to sentence below a statutory mandatory minimum, should the judge believe the sentence is too harsh for the offense committed....

Since the creation of the federal safety valve, more than 80,000 federal offenders have received fairer, more just sentences.  These lesser sentences for nonviolent, low-level drug offenders allow limited prison resources to be used on violent, repeat offenders who are true threats to public safety....

The proposed changes to the federal code to expand the safety valve to offenders who have up to three or four criminal history points, with exceptions for some of those points coming from more serious or violent offenses, is a modest, common sense change.  Nothing in the safety valve prevents judges from sentencing prisoners at or above the mandatory minimum even if they are eligible for the safety valve, but simply allows judicial discretion to ensure that prison resources are being used where they can best protect public safety, and not wasted on nonviolent, low-level drug offenders.

In the 115th Congress, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) has reintroduced the Sentencing Reform and Correction Act and Sen. Mike Lee (R-Utah) has reintroduced the Smarter Sentencing Act, both of which include an expansion of the federal safety valve.  Although the Sentencing Reform Act has not yet been reintroduced by House Judiciary Committee Chairman Bob Goodlatte (R-Va.), the Prison Reform and Redemption Act, sponsored by Rep. Doug Collins (R-Ga.) would serve as a likely vehicle for sentencing reforms similar to those found in the Sentencing Reform Act.

Should the House Judiciary Committee markup the Prison Reform and Redemption Act, FreedomWorks urges the committee to include an expansion of the federal safety valve that would allow judicial discretion in sentencing qualifying offenders to ensure that lengthy sentences and prison resources are spent on criminals who represent a serious threat to our communities. 

In addition to being a helpful review by a notable organization of one piece of the federal sentencing system, this document strikes me a timely and astute effort to start building the case for incorporating at least a little bit sentencing reform into the prison reform efforts that now are gaining steam in Congress. Because it appears to have the blessing of Prez Trump and maybe even Attorney General Sessions, the Prison Reform and Redemption Act right now looks like the proposed federal legislation with the greatest chance of enactment. This Issue Brief wisely highlights why it would be a wise decision to add a modest sentencing reform provision into that proposal.

January 30, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Sunday, January 28, 2018

Noticing that ALEC is now joining growing calls for reforming drug-free zone laws

Regular readers likely remember some recent and many older posts discussing the problems with drug-free zone laws that can sometimes result in first-time and low-level drug offenders facing and receiving extreme prison sentences when just happening to be inadvertently in the wrong place at the time of their offense.  Via this post at Reason, headlined "ALEC Urges State to Reform Drug-Free School Zone Laws," I see that a not-so-usual suspect is now calling for the reform of these laws. Here are the details (with links from the original):

The American Legislative Exchange Council (ALEC), a conservative, pro-business organization that drafts model bills for state legislatures, passed a resolution Friday urging states to reform their drug-free school zone laws.  The conservative group is the latest in a growing bipartisan chorus opposing punitive drug-free school zone laws, which exist in all 50 states and the District of Columbia.

"Most Drug-Free Zone laws were established decades ago," the resolution says, "but have not been reformed despite evidence that Drug-Free Zones are arbitrary and often unnecessarily broad, are ineffective at deterring drug- related crime, and create significant unintended consequences, including unwarranted disparate impacts on minority defendants."

That's exactly what a December Reason investigation into Tennessee's Drug-Free School Zone Act found.  Tennessee's drug-free school zones extend 1,000 feet from the real property of every school, library, park, and daycare in the state. Using GIS data obtained from the state, Reason found there were 8,544 separate drug-free zones in Tennessee, amounting to 5 percent of the overall area of the state and 26 percent of urban areas.

Those enhanced sentencing zones were rarely, if ever, used to prosecute drug crimes involving children, according to interviews with prosecutors and defense attorneys. But they did result in first-time and low-level drug offenders receiving longer prison sentences than if they had been found guilty of second-degree murder or rape. Sentencing data also showed wide racial disparities in who received drug-free school zone sentences, with blacks making up 69 percent of all current inmates serving time for violations of the act, despite only making up 17 percent of the state population. The zones, which tend to cluster in low-income and minority neighborhoods, also give prosecutors immense leverage to squeeze plea deals out of defendants.

Several states have passed reforms to their laws over the past decade, shrinking the size and number of zones. The Tennessee legislature is considering a similar reform this year to shrink its zones from 1,000 feet to 500 feet. A bipartisan group of civil liberties and criminal justice organizations are supporting the bill, such as Families Against Mandatory Minimums (FAMM). Conservative lawmakers recognize that drug-free school zone laws have proven to be a costly failure," FAMM president Kevin Ring said in a statement on the ALEC resolution. "These laws stick low-level offenders with long sentences even when no children are involved and, as a result, they waste resources that could be better spent on more serious offenders."

A few of many prior related posts:

January 28, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, January 24, 2018

Highlighting comments, commentary and consequences from state sentencing of mass molester Larry Nassar

The nature of Larry Nassar's crimes and of his victims contributed to his state sentencing earlier today (basics here) garnering lots and lots of attention.  I suspect in days to come we may see continuing commentary about Nassar's crimes and their enduring consequences, and tonight I thought to highlight a few particulars already garnering attention.

First, certain comments made by the state judge at sentencing have prompted an array of reactions, and so I thought it useful to link here to a full transcript of the judge's full comments at sentencing.  I think it is fair to call everything about the Nassar case remarkable, and the judge's sentencing statement also merits that adjective.

Second, and speaking of the judge and her sentencing comments, over at Slate Mark Joseph Stern already has this notable commentary headlined "Larry Nassar’s Victims Deserved a Judge Like Rosemarie Aquilina."  The piece closes with these lines: "The result was impassioned and imperfect.  It was also what Larry Nassar deserved."

And third, this local article reports on a noteworthy consequence of Nassar's crimes: "Michigan State President Lou Anna Simon resigns hours after Nassar sentencing."  I hesitate calling the MSU Prez another victim of Nassar, but I do not hesitate predicting that Nassar's crimes will reverberate in many ways and in many areas for quite some time to come.

Prior related posts:

January 24, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (9)

Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation

As reported here by the AP, Larry Nassar after a lengthy state sentencing hearing "was sentenced Wednesday to 40 to 175 years in prison as the judge declared: 'I just signed your death warrant'."  Here is more from the AP:

The sentence capped a remarkable seven-day hearing in which scores of Larry Nassar's victims were able to confront him face to face in a Michigan courtroom. Judge Rosemarie Aquilina said Nassar's "decision to assault was precise, calculated, manipulative, devious, despicable."

"It is my honor and privilege to sentence you. You do not deserve to walk outside a prison ever again. You have done nothing to control those urges and anywhere you walk, destruction will occur to those most vulnerable."

Nassar found competitive gymnastics to be a "perfect place" for his crimes because victims saw him as a "god" in the sport, a prosecutor said Wednesday, shortly before the former doctor was to be sentenced for years of molesting Olympic gymnasts and other young women. "It takes some kind of sick perversion to not only assault a child but to do so with her parent in the room," prosecutor Angela Povilaitis said. "To do so while a lineup of eager young gymnasts waited."

She described the "breadth and ripple" of Nassar's sexual abuse as "nearly infinite." "What does it say about our society that victims of sexual abuse have to hide their pain for years when they did nothing wrong? What does it say about our society when victims do come forward ... and are treated as liars until proven true?" Povilaitis said.

Nassar turned to the courtroom gallery to make a brief statement, saying that the accounts of more than 150 victims had "shaken me to my core." He said "no words" can describe how sorry he is for his crimes. "I will carry your words with me for the rest of my days" he said as many of his accusers wept....

Nassar, 54, pleaded guilty to assaulting seven people in the Lansing area, but the sentencing hearing has been open to anyone who said they were a victim. His accusers said he would use his ungloved hands to penetrate them, often without explanation, while they were on a table seeking help for various injuries.

The accusers, many of whom were children, said they trusted Nassar to care for them properly, were in denial about what was happening or were afraid to speak up. He sometimes used a sheet or his body to block the view of any parent in the room. "I'd been told during my entire gymnastics career to not question authority," a former elite gymnast, Isabell Hutchins, said Tuesday....

Nassar has already been sentenced to 60 years in federal prison for child pornography crimes. He is scheduled to be sentenced next week on more assault convictions in Eaton County, Michigan.

Though not made clear in this AP piece, I am inclined to presume this 40 to 175 year sentence is the maximum permitted under state law. I would be grateful to hear from any Michigan state sentencing experts as to whether this was a max sentence and also why a mass molestation such as this one produces a state sentence with a lower range that is shorter than the federal prison sentence Nassar already received for child porn offenses.

Prior related posts:

UPDATE A helpful commentor noted below that the 40-year minimum sentence imposed here was the maximum bottom-range term provided for in Nassar's state plea agreement.  And, of course, because Nassar would have to live well past 100 to even have a chance of completing the current federal sentence he is serving, the particulars of his state sentence are not really of any significant practical consequence.

January 24, 2018 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

Tuesday, January 23, 2018

New FBI crime data on first half of 2017 show encouraging declines in all areas except murder and car thefts

LargeThis new news release from the FBI, headlined "2017 Preliminary Semiannual Crime Statistics Released: Stats Show Slight Crime Decline in First Half of 2017," reveals some generally positive crime news for the start of 2017. Here are the basics:

Preliminary statistics show declines in the number of both violent crimes and property crimes reported for the first half of 2017 when compared with the first half of 2016, according to the FBI’s Preliminary Semiannual Uniform Crime Report, January - June 2017, released today. The report includes data from more than 13,000 law enforcement agencies nationwide that submitted crime data to the FBI’s Uniform Crime Reporting (UCR) Program.

According to the report, overall violent crime decreased 0.8 percent in the first six months of 2017 compared with the same time frame in 2016, though the number of murders and non-negligent manslaughters reported increased by 1.5 percent.  Additionally, the number of rapes (revised definition) decreased 2.4 percent, robberies decreased 2.2 percent, and aggravated assaults were down 0.1 percent.

Overall reported property crime offenses dropped 2.9 percent in the first half of 2017 compared with the first half of 2016. Burglaries decreased 6.1 percent, and larceny-thefts decreased 3 percent.  One area of property crime that did rise was motor vehicle thefts, with a 4.1 percent increase.

This FBI table providing year-to-year trends of the last four years provides a little more context for this latest data.  It is especially encouraging to see violent crime start to tick down after two years of increases, but the continued increase in murders remains disconcerting coming on the heels of two prior years of increases.  As has been the case in recent years, I suspect the homicide story is a dynamic region-specific tale with divergent numbers and stories in different cities.  Indeed, this FBI chart with population breakdowns and this FBI chart with regional breakdowns seem to indicate that mid/large-sized cities in the Midwest and South account for much of the increases in murders in the first part of 2017.

UPDATE: Attorney General Jeff Sessions already has penned this commentary published by USA Today touting the good news in this new FBI crime data. Here are parts of the piece:

When President Trump was inaugurated, he made the American people a promise: “This American carnage stops right here and stops right now.” It is a promise that he has kept....

Trump ran for office on a message of law and order, and he won. When he took office, he ordered the Department of Justice to stop and reverse these trends — and that is what we have been doing every day for the past year.

We have placed trust in our prosecutors again, and we’re restoring respect for law enforcement. We have invested in new resources and put in place smarter policies based on sound research.

Ensuring every neighborhood in America is safe again will take time, but we are already starting to see results.

In 2017, we brought cases against more violent criminals than in any year in decades.  We charged the most federal firearm prosecutions in a decade. We convicted nearly 500 human traffickers and 1,200 gang members, and helped our international allies arrest about 4,000 MS-13 members.  We also arrested and charged hundreds of people suspected with contributing to the ongoing opioid crisis.

Morale is up among our law enforcement community.  Any loss of life is one too many, but it is encouraging that the number of officers killed in the line of duty declined for the first time since 2013, reaching its second lowest level in more than half a century.  And we are empowering and supporting our critically important state, local and tribal law enforcement partners as we work together to protect communities from crime.

In the first six months of last year, the increase in the murder rate slowed and violent crime actually went down.  Publicly available data for the rest of the year suggest further progress. For the first time in the past few years, the American people can have hope for a safer future.

Our strategy at this department of concentrating on the most violent criminals, taking down violent gang networks, prioritizing gun prosecutions, and supporting our state, local and tribal law enforcement partners has proven to work.  Of course, our work is not done. Crime is still far too high — especially in the most vulnerable neighborhoods.

This first year of the Trump era shows once again that the difficult work we do alongside our state, local and tribal law enforcement partners makes a difference. Crime rates are not like the tides — we can help change them.  And under Trump’s strong leadership, we will.

I fear that AG Sessions may be taking a victory lap a bit too early based on just a small bit of data from the first half of 2017.  But this commentary references positive "data for the rest of the year," and that lead me to think he has a reasonable basis to expect subsequent crime data reports for 2018 to also be positive.  Given that crime rates are already pretty low by historical standards, I rather like that AG Sessions is already prepared to "take ownership" of crime data.  Consequently, if crime continues to trend down, he certainly can and will be in a position to take credit.  And if crime does not continue to trend down, he will have some explaining to do. 

January 23, 2018 in National and State Crime Data, Offense Characteristics | Permalink | Comments (2)

Monday, January 22, 2018

You be the federal judge: what sentence for Senator Rand Paul's attacker?

As regular readers know, I enjoy following up news of a high-profile conviction by asking what sentence readers think fitting for the high-profile convicted offender.  As detailed in this local article, report, headlined "Rand Paul’s attacker should get 21 months in prison, prosecutors recommend," the case today is high-profile because of the victim (and some motive uncertainty). Here are the latest crime and punishment details:

Federal prosecutors will recommend a sentence of 21 months in prison for the neighbor charged with tackling and injuring U.S. Sen. Rand Paul, according to a court document. The document, posted Monday, also makes clear that the attack was not politically motivated.

Paul’s neighbor, Rene Boucher, told police he attacked Paul because he’d “had enough” after seeing the Republican senator stack more brush on a pile near Boucher’s yard, according to the plea agreement Boucher signed.

Boucher’s attorney, Matthew Baker of Bowling Green, has said he will argue that Boucher should not be put behind bars for the attack on Paul.

The plea deal also envisions that Boucher will make restitution to Paul, who was seriously injured.

Boucher, a 58-year-old retired anesthesiologist, and Paul have lived next to each other for years in an upscale subdivision in Bowling Green, but have reportedly had differences of opinion over property maintenance. Boucher is “very meticulous” about yard maintenance, while Paul “takes a different approach,” Baker told the Herald-Leader last week. “It just became … a point of frustration that boiled over,” Baker said....

Boucher’s plea agreement says Paul was mowing his yard — while wearing headphones for hearing protection — when Boucher saw Paul stacking more brush on an existing pile and lost his temper. Boucher “executed a running tackle” of Paul on Paul’s property, the plea agreement said.

Paul did not see Boucher coming until the last second and was “unable to brace for the impact,” the plea document said. Paul suffered several broken ribs and had to be treated for pneumonia which developed as a result of his injuries....

No date has been set for Boucher to formally plead guilty or be sentenced. The charge against him carries a top sentence of 10 years.

Long-time readers know that Senator Paul has long been an advocate for federal sentencing reforms especially for nonviolent drug offenders; in this case, Senator Paul the victim of a violent crime and perhaps the kind he thinks ought to carry some prison time.  Notably, in this 2013 op-ed, Senator Paul explained his opposition to mandatory minimum drug sentences due in part to the risk they create for federal offenders having "their lives ruined for a simple mistake or minor lapse of judgment."   Arguably Boucher's "running tackle" was just a minor lapse, albeit one that seemingly cause some significant harm to Senator Paul. 

Thanks the the federal Crime Victims' Rights Act, Senator Paul has a "right to be reasonably heard" at Boucher's sentencing and it will be interesting to see if Senator Paul exercises this right and whether he might be inclined to urge any particular sentence.  I surmise that the plea agreement filed today provides that federal prosecutors will seek a sentence of 21 months (likely pursuant to the aggravated assault guideline) while the defense will seek a sentence of probation.  It will be interesting to see what the probation office may end up recommending, and in the meantime I am eager to hear in the comments from various readers:

What sentence would you give to Rene Boucher for his assault on Senator Rand Paul?

January 22, 2018 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (15)

Thursday, January 18, 2018

Texas completes first execution of 2018

As reported in this AP piece, headlined "'Tourniquet Killer' executed in Texas for 1992 strangling," the first execution of the year was completed in Texas this evening. Here is the story:

Texas carried out the nation's first execution of 2018 Thursday evening, giving lethal injection to a man who became known as Houston's "Tourniquet Killer" because of his signature murder technique on four female victims. Anthony Allen Shore was put to death for one of those slayings, the 1992 killing of a 21-year-old woman whose body was dumped in the drive-thru of a Houston Dairy Queen.

In his final statement, Shore, 55, was apologetic and his voice cracked with emotion. "No amount of words or apology could ever undo what I've done," Shore said while strapped to the death chamber gurney. "I wish I could undo the past, but it is what it is."

As the lethal dose of pentobarbital began, Shore said the drug burned. "Oooh-ee! I can feel that," he said before slipping into unconsciousness. He was pronounced dead 13 minutes later at 6:28 p.m. CST.

"Anthony Allen Shore's reign of terror is officially over," Andy Kahan, the city of Houston crime victims' advocate, said, speaking for the families of Shore's victims. "There's a reason we have the death penalty in the state of Texas and Anthony Shore is on the top of the list. This has been a long, arduous journey that has taken over 20 years for victims' families."

Shore's lawyers argued in appeals he suffered brain damage early in life that went undiscovered by his trial attorneys and affected Shore's decision to disregard their advice when he told his trial judge he wanted the death penalty. A federal appeals court last year turned down his appeal, the U.S. Supreme Court refused to review his case and the six-member Texas Board of Pardons and Paroles unanimously rejected a clemency petition.

In 1998, Shore received eight years' probation and became a registered sex offender for sexually assaulting two relatives. Five years later, Shore was arrested for the 1992 slaying of Maria del Carmen Estrada after a tiny particle recovered from under her fingernail was matched to his DNA. "I didn't set out to kill her," he told police in a taped interview played at his 2004 trial. "That was not my intent. But it got out of hand."...

He also confessed to killing three others, a 9-year-old and two teenagers. All four of his victims were Hispanic and at least three had been raped. Jurors also heard from three women who testified he raped them.

Harris County District Attorney Kim Ogg, who as an assistant prosecutor worked the then-unsolved Estrada case, said crime scene photos showed Estrada was tortured and had suffered as a stick was used to tighten a cord around her neck. "I know this case, I know his work and the death penalty is appropriate," she said. "A jury in this case gave Shore death. ... I think he's reached the end of the road and now it's up to government to complete the job."

Besides Estrada, Shore confessed to the slayings of Laurie Tremblay, 15, found beside a trash bin outside a Houston restaurant in 1986; Diana Rebollar, 9, abducted while walking to a neighborhood grocery store in 1994; and Dana Sanchez, 16, who disappeared in 1995 while hitchhiking to her boyfriend's home in Houston....

In 2017, 23 convicted killers were put to death in the U.S., seven of them in Texas, more than another state. Three more inmates are scheduled to die in Texas in the coming weeks.

January 18, 2018 in Death Penalty Reforms, Offense Characteristics | Permalink | Comments (6)

Wednesday, January 17, 2018

Taking a critical look at recent report on "Federal Prosecution of Commercial Sexual Exploitation of Children Cases"

Guy Hamilton-Smith has this notable new piece at In Justice Today discussing a new Bureau of Justice Statistics report. The BJS report, available here, is titled "Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004-2013." Guy Hamilton-Smith's critical assessment, available here, is titled "New DOJ Report Demonstrates Stunning Disingenuity on Cases Involving Sexual Exploitation of Children." Here is how the commentary starts and additional excerpts with a sentencing bite:

A recent bombshell report from the Department of Justice claims that the number of people prosecuted in federal court for commercial sexual exploitation of children roughly doubled between 2004 and 2013.

The title of the report from the DOJ’s Bureau of Justice Statistics, Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004–2013, conjures the specter of children being forced into sexual slavery. The titling and framing of the report leaves a casual reader with the impression that more and more children are falling victim to commercial sex offenses  —  such as sex trafficking  —  and that DOJ has placed a high priority on prosecuting these offenses.

The actual data contained within the report itself, however, merits no such dramatic conclusion. The DOJ defines the phrase the “commercial sexual exploitation of children” (CSEC) as involving “crimes of a sexual nature committed against juvenile victims for financial or other economic reasons,” the obvious implication being that these “CSEC” defendants are directly involved in the trafficking of children for sexual purposes. However, according to the BJS’ own data, the vast majority of the defendants charged with CSEC offenses were accused, not of producing of child pornography or of child sex trafficking, but of consuming child pornography, including images of cartoon obscenity....

The growth in these types of child pornography prosecutions is not necessarily indicative of an increase in rates of offending.  Rather, it is more likely the result of law enforcement’s ability to secure confessions and convictions with relatively little effort. In the vast majority of these cases, investigators monitor peer-to-peer networks for hash values of images that are known to be child pornography, serve administrative subpoenas on service providers for records associated with those IP addresses, and knock on front doors with search warrants. Defenses are usually slim to none. Guilty pleas are exceedingly common: The BJS data reveals that 92.5% of defendants prosecuted in federal court for possession, receipt, or distribution of child pornography pled guilty.

Including such defendants under the banner of “CSEC” is sloppy at best and disingenuous at worst.  While the DOJ’s commitment to battling commercial sexual exploitation of children is admirable, their framing and presentation of the data as implication of an epidemic is at odds with the numbers themselves.

Underscoring the need for clarity and objectivity is the fact that defendants prosecuted for non-production child pornography offenses are amongst the most harshly punished defendants in all of the federal system. The report indicates that they are the least likely of all federal defendants to be given non-custodial sentences, even over and above violent and weapon offenses, and that "Prison sentences imposed on defendants convicted of CSEC offenses were among the longest in the federal justice system. The mean prison sentence imposed on convicted CSEC defendants increased by 99% from 2004 to 2013, from 70 to 139 months."

Sentences to the north of a decade are routine for CSEC defendants by virtue of the United States Sentencing Guidelines. These provide a recommended “range” in months of imprisonment based on both the severity of an offense and a person’s criminal history. Offenses, depending on specific characteristics of how they are committed, can receive enhancements that result in lengthier terms of imprisonment.

There are a number of significant sentencing enhancements for child pornography cases which are routinely applied. These may have held some rough logic in an era before Google, but they make little sense now. Use of a computer? Enhancement.  More than ten images?  Enhancement.  Distribution, even unintentional distribution, as discussed above?  Enhancement. More than 10 images (note that a video file, regardless of length, is counted as 75 images)? Enhancement.  Sentence enhancements are piled on such that, even for those individuals with no criminal record and no evidence they sexually assaulted a child, the recommended sentences can easily dwarf the statutory maximum sentences.

No other class of offense in the federal system (or, indeed, in many states) is characterized by such extreme sentences.  As courts have noted, there is virtually no empirical or reasoned bases for any of these enhancements beyond naked revulsion and desire for retribution. Some scholars have suggested that such severe punishments represent punishment by proxy. In other words, they are intended to obscure and compensate for the failure of law enforcement to investigate and prosecute actual cases of child sexual trafficking and commercial exploitation. In seeking to justify such draconian punishments even for “end users,” prosecutors and others (including courts) have advanced a market theory  —  that even possession of such images drives a market for child pornography.  The United States Sentencing Commission, in a 2012 report to Congress, noted that such arguments are without empirical support. Notably, similar arguments were made in support of harsh treatment of drug addicts in the 1970’s and 80’s as a way of winning the war on drugs.

Whatever the underlying rationale, the draconian nature of these sentences has attracted attention and push back in recent years, including from an extremely unlikely group: federal judges, some of whom are recognizing the inherent unfairness of enhancements for these types of offenses, and beginning to impose sentences far more lenient than those recommended by the guidelines.

Equating garden variety child pornography defendants with child sex traffickers is an abdication of reason and rationality. Unfortunately, the DOJ has not signaled any intention of reversing course.  Rather, if the trends in the report are any indication, it appears to be accelerating the use of what might justifiably be described as a prosecutorial machine that crushes defendants in child pornography possession cases, while failing to even charge far more culpable defendants.

January 17, 2018 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (5)

Friday, January 05, 2018

In prelude to federal prosecution, killer of Kate Steinle gets three-year sentence on sole state count of conviction

As reported in this local article, "the Mexican national accused of shooting Pleasanton native Kate Steinle was sentenced today to three years in prison but will not serve any more time in state custody because of credit for time served." Here is more:

Jose Ines Garcia Zarate, 54, will now be handed over to federal authorities to be prosecuted again.

After a four-week trial that drew national attention, a jury in November acquitted the undocumented immigrant of murder, involuntary manslaughter and assault with a semiautomatic firearm in the July 2015 shooting of Steinle on San Francisco’s Pier 14. But jurors convicted him of being a felon in possession of a firearm.

Judge Samuel Feng this morning sentenced Garcia Zarate, who has already spent two and a half years in jail waiting for his trial, to time served on his possession conviction.

Garcia Zarate’s defense team urged Feng to throw it out, arguing that the jury received improper instructions about the charge. But Feng denied the motion this morning at San Francisco’s Hall of Justice....

In the coming days, Garcia Zarate will be arraigned in federal court, where he faces similar charges of being a convicted felon and an illegal immigrant in possession of a firearm.

His defense attorneys have argued that the shooting was an accident, suggesting that Garcia Zarate found the gun on the pier and that it accidentally discharged when he touched it, with the bullet ricocheting 78 feet before hitting 32-year-old Steinle. Garcia Zarate threw the gun into the water after it fired.

Prior related post:

January 5, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (6)

Thursday, January 04, 2018

"I was Raped. And I Believe The Brock Turner Sentence Is a Success Story."

The title of this post is the headline of this notable new commentary authored by Meaghan Ybos, who is the founder and executive director of People for the Enforcement of Rape Laws. I recommend the piece is full, and here is a snippet:

[T]hose critical of the scrutiny of Judge Persky have not defended Turner’s sentence. I will do so here. I am a rape victim engaged in a lawsuit against the Memphis Police Department for systematically failing to investigate rape cases and I believe that Judge Persky’s sentence was just.

The outrage over the supposedly lenient sentence misunderstands the consequences of Turner’s conviction, which includes lifetime registration as a sex offender, and vilifies individualized sentencing. I also believe that the energy and vitriol directed at Judge Persky should have been used instead to hold police departments accountable for properly investigating rape, which too many fail to do....

We should not demonize judges for handing out individualized sentences, even to Brock Turner. Instead, we should demand that judges use discretion more broadly and in favor of people from all backgrounds.  And we must recall that the very worst criminal justice policy springs from outrage over individual high profile cases from Willie Horton to, more recently, Jose Ines Garcia Zarate, a homeless Mexican immigrant in San Francisco who was just acquitted in a high profile murder that Donald Trump seized upon in his 2016 campaign to support his anti-immigration platform.

Furthermore, advocates ... have falsely characterized Turner’s sentence as a slap on the wrist, but his punishment also involves much more than the number of hours he was caged.  Turner owes court fees and is required to pay the victim restitution.  He must attend a year-long rehabilitation program for sex offenders, which includes mandatory polygraph exams for which he must waive his privilege against self-incrimination.  If he violates the terms of his three-year felony probation, he faces a 14-year prison sentence.  He now has a strike that can be used against him under California’s three-strikes law if he is accused of any future criminal activity.  As a convicted felon, he will not be allowed to own a gun....

The most severe part of Turner’s sentence, which anti-rape advocates largely have glossed over, is the requirement that he register as a sexual offender for the rest of his life. This means that an online sex offender registry will show his picture, his address, his convictions, and details of his probation. These lists, which contain people convicted of an ever-growing number of offenses, are so broad and oppressive that a Colorado federal court deemed them cruel and unusual punishment. They are “modern-day witch pyres” that often lead to homelessness, instability, and more time in prison.

As with Jose Ines Garcia Zarate and Willie Horton before him, political leaders seized on outrage over Turner’s sentence to justify punitiveness. The Turner case spurred a new mandatory minimum law in California removing the option of probation for people convicted of sexually assaulting a person who is intoxicated or unconscious.  By imposing a three-year mandatory sentence, the law removes judicial discretion.  “The bill is about more than sentencing,” said Democratic Assembly member Bill Dodd in a written statement following the bill’s passage. “It’s about supporting victims and changing the culture on our college campuses to help prevent future crimes.”

But it’s at the “front end” of the criminal justice system where most rape complaints falter.  Police have often acted as hostile gatekeepers preventing complaints from ever reaching a courtroom.  History shows police gatekeeping in cities like Philadelphia, St. Louis, Baltimore, Cleveland, Detroit, New Orleans, and New York City.  In recent years, police have regularly closed cases before doing any investigation, discarded rape kits (the San Jose Police Department currently has over 1,800 untested rape kits and refuses to count the rape kits collected before 2012), and have even arrested victims for false reporting. It’s not surprising that police departments solve abysmally few rapes, with some cities’ clearance rates in the single digits.

The Turner case was investigated and prosecuted to the full extent of the law.  For a sexual assault case, it is a rare success.  More punishment isn’t always the best or most just response.  Nor does it necessarily provide justice for victims.  And as long as police gatekeeping prevents rape victims from having consistent access to the criminal justice system, recalling judges and increasing sentences will yield no progress in reducing sexual assault.

January 4, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Tuesday, December 19, 2017

Notably lenient Nebraska sex offense sentence reversed based on notably questionable judicial comments

This local press report, headlined "Sentence of probation in Nebraska sexual assault case overturned; judge called 12-year-old girl the 'aggressor'," reports on an interesting state appellate court sentencing reversal.  Here are the basic details:

The Nebraska Court of Appeals has overturned a Kearney judge’s decision to put a man on probation for a felony sexual assault conviction.  In its ruling issued Tuesday morning, the Court of Appeals said Buffalo County District Judge Bill Wright considered forbidden and irrelevant factors when he decided to place Taylor Welty-Hackett on probation.

In February, Wright placed Welty-Hackett on four years of intensive supervised probation for attempted felony first-degree sexual assault of a 12-year-old girl on Aug. 1, 2015, in Kearney.  The charge was punishable by up to 20 years in prison.

The Court of Appeals ordered Welty-Hackett’s case be sent back to Buffalo County, where he will be resentenced by a different judge.  A hearing date hasn’t been set.  Buffalo County Attorney Shawn Eatherton had argued that Welty-Hackett’s sentence was too lenient.  During the Feb. 23 sentencing hearing, Wright called Welty-Hackett’s victim the "aggressor" in the case saying, “She made the advances.”

Wright also went on to tell Welty-Hackett that he “screwed up big time, but I’ve got to find some way of bringing balance back into the system, given the nature of what’s been occurring in this community.”

The Court of Appeals said Wright’s statement about the promiscuity of teenage girls and the need to bring “balance” into sentencing sexual offenders went beyond consideration of the facts in the case.  “If the sentencing judge (Wright) went awry in this case, it was only in failing to provide a more detailed explanation on the record of the multiple factors in the PSI (pre-sentence investigation report) which clearly justified the probationary sentences. ... Such failure caused the trial judge’s brief mention of the defendant’s small stature to become the focus of attention, when in reality it was but a minor point,” the Court of Appeals ruled.

The full opinion in Nebraska v. Welty-Hackett, No. A-17-239 (Neb. Ct. App. Dec. 19, 2017) (available here), makes for an interesting read.  Here are some of its concluding paragraphs:

Unlike in State v. Thompson, the sentencing judge’s comments in this case were more than just a “brief mention” of factors not relevant to imposing sentence.  The court’s discussion of the general promiscuity of teenage girls and the need to bring balance into the system was fairly substantial.  Further, the comments had nothing to do with this particular defendant, in contrast to State v. Thompson.  We recognize that the trial judge in this case indicated he had reviewed the PSR before the sentencing hearing.  While the information contained in the PSR may well have supported the probationary sentence imposed, we cannot determine from the judge’s comments at sentencing how much weight was given to the permissible and relevant sentencing factors compared to the impermissible and irrelevant factors.  We note, however, the court’s final comments before imposing sentence that Welty was getting the benefit of the court’s desire to “find some way of bringing some balance back into the system, given the nature of what’s been occurring in this community.”

Because it appears that the trial court’s reliance upon the impermissible and irrelevant sentence factors largely influenced his decision to impose probation, we find it necessary to vacate the sentence imposed and remand for resentencing before a different judge.

December 19, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Monday, December 18, 2017

Another look at trend to prosecute some opioid overdose deaths as homicides

This morning's Wall Street Journal has this new article on the (not-all-that) new trend of considering homicide charges in response to drug-overdose deaths.  The full lengthy headline of the lengthy article is "Prosecutors Treat Opioid Overdoses as Homicides, Snagging Friends, Relatives As U.S. drug deaths hit record levels, prosecutors and police are trying a tactic that echoes tough-on-crime theories of the 1990s." Here are excerpts (with a few lines emphasized for follow-up commentary):

After Daniel Eckhardt’s corpse was found on the side of a road in Hamilton County, Ohio, last year, police determined he died of a heroin overdose. Not long ago, law enforcement’s involvement would have ended there. But amid a national opioid-addiction crisis fueling an unprecedented wave of overdose deaths, the investigation was just beginning.

Detectives interrogated witnesses and obtained search warrants in an effort to hold someone accountable for Mr. Eckhardt’s death.  The prosecutor for Hamilton County, which includes Cincinnati and its suburbs, charged three of Mr. Eckhardt’s companions, including his ex-wife and her boyfriend, with crimes including involuntary manslaughter, an offense carrying a maximum prison sentence of 11 years.

Mr. Eckhardt voluntarily took the heroin that killed him, but prosecutors alleged the trio were culpable because they bought and used heroin with him that they knew could result in death.  The indictments were part of a nationwide push to investigate overdose deaths as homicides and seek tough prison sentences against drug dealers and others deemed responsible.  It’s an aggressive tactic law-enforcement officials say they’re using in a desperate attempt to stanch the rising tide of overdose deaths.

Fueled by a flood of heroin laced with fentanyl and other powerful synthetic opioids, the overdose death rate in Hamilton County more than tripled between 2006 and 2016 to 50 per 100,000 people, or four times as many as those killed in traffic accidents.  Nationally, some 64,000 Americans died from overdoses last year, up 86% from 2006, according to the Centers for Disease Control and Prevention.

A newly created heroin task force in Hamilton County has investigated hundreds of deaths in the past two years, resulting in a dozen involuntary manslaughter indictments in state court and 13 federal indictments for distribution of controlled substances resulting in death. “The deaths—that’s why. All the people dying,” Cmdr. Thomas Fallon, who leads the Hamilton County task force, says of the prosecution push. “Even in the cocaine and crack days, people didn’t die like this.”

At least 86 people nationwide received federal prison sentences last year for distributing drugs resulting in death or serious injury, up 16% from 2012, according to the U.S. Sentencing Commission, a federal agency that determines sentencing guidelines for judges.  An analysis of news reports found 1,200 mentions nationally about drug-death prosecutions in 2016, three times the number in 2011, according to a recent report by the Drug Policy Alliance, a nonprofit group that supports decriminalizing drug use.

The prosecutions often employ tough-on-crime legislation born of the crack-cocaine epidemic of the 1980s and 1990s.  These state and federal laws hold drug distributors liable for overdose deaths.  Selling even small amounts can result in decades or even life in prison.

In some states, such laws were rarely enforced until recently.  Benjamin J. Agati, a veteran prosecutor in the New Hampshire Attorney General’s office, has helped train police departments throughout the state in how to build cases under the state’s drug-induced homicide law, which carries a maximum penalty of life in prison. The law was enacted in the late 1980s but was rarely applied before the surge in opioid deaths, Mr. Agati says....

The prosecutions sometimes nab members of drug-distribution gangs like that of Navarius Westberry.  Last year, Mr. Westberry pleaded guilty in federal court in Kentucky to operating a drug-trafficking ring that distributed up to a kilogram of heroin and 50 grams of fentanyl over an 18-month period that killed at least one person.  He was sentenced to life in prison.  But in courtrooms around the country, prosecutors are also sweeping up low-level dealers who are addicts trying to support their habit, as well as friends and family members of overdose victims who bought or shared drugs with the deceased. Some critics of the prosecution tactic say these users need treatment, not harsh prison sentences.

Critics see the prosecutions as more of the same drug-war tactics that have filled America’s prisons with nonviolent criminals but done little to stop illicit drug use. There’s scant evidence that fear of prison deters addicts from using, and for every dealer put behind bars, another is ready to take his place, says Lindsay LaSalle, an attorney with the Drug Policy Alliance.

Law-enforcement officials say they’ve seen some signs the prosecutions may be deterring dealers, including jailhouse phone calls they say they’ve overheard in which inmates warn associates that police are pressing homicide charges against drug traffickers.  They say drug-death prosecutions are just one piece of a broader strategy to combat the crisis, including urging addicts into rehab and taking down large-scale traffickers....

A two-hour drive south from Hamilton County, Kerry B. Harvey, the mustachioed U.S. attorney for eastern Kentucky from 2010 to early 2017, made prosecuting drug-deaths a priority around 2015.  He used a 1986 federal law that had rarely been applied in the district, which established a mandatory 20-years-to-life sentence for distributing drugs that resulted in death or serious injury.  The penalty grew to life in prison for defendants with prior felony drug convictions.

He saw the approach as a way to bring solace to families devastated by the increasing number of heroin-related deaths in the area.  Plus, the law’s stiff penalties helped persuade dealers to cooperate against bigger suppliers, he said. “When someone is looking at 20 years to life, they’re gonna tell you whatever they know to save themselves,” he said.

Mr. Harvey assigned three prosecutors to work on the cases and began working with local police to investigate overdose deaths as homicides.  Since 2015 one of the prosecutors, Todd Bradbury, has convicted 16 people for selling drugs that resulted in death, two of whom received life sentences.  One of those convicted was Fred Rebmann, who in 2016 sold $60 of fentanyl to Kathleen Cassity.  Ms. Cassity was six months pregnant and died within hours of buying the drugs. Doctors performed an emergency C-section, but failed to save the life of her unborn child.

At the time, Mr. Rebmann was 31 and spent his days scheming to obtain enough heroin to avoid withdrawal. “I would work odd jobs…steal…hold up signs for money,” he said in an email from prison. He also dealt drugs. “There were days I’d sell heroin to get my own, and there were days I sold scrap metal,” he said in a telephone interview.  Addiction doesn’t “disqualify” small-time dealers like Mr. Rebmann from prosecution, says Mr. Bradbury, the prosecutor.  “He knew he was selling something extremely dangerous to a pregnant woman,” he says.  Mr. Rebmann says he didn’t know Ms. Cassity was pregnant.

Mr. Bradbury offered him a deal.  If Mr. Rebmann pleaded guilty, prosecutors would recommend a 20-year sentence that, with credit for good behavior, could be reduced by three years.  If he went to trial and lost, Mr. Rebmann faced mandatory life in prison because of a 2012 heroin-possession conviction.

Mr. Rebmann took the deal and pleaded guilty in August 2016, but U.S. District Judge Joseph M. Hood, a Vietnam War veteran appointed to the bench in 1990, rejected Mr. Bradbury’s sentencing recommendation.  Ms. Cassity died “because you wanted to stick a needle in your arm,” Judge Hood told Mr. Rebmann, according to a transcript of the hearing.  He sentenced Mr. Rebmann to 30 years in prison. “I want it to be known here in Lexington… if you get convicted of dealing in heroin and a death results, 20 years isn’t enough,” Judge Hood said. “Time for coddling is over.”

The lines I have put in bold in the excerpts above are intended to highlight that, as I have sought to make in some prior blogging on this topic, that whether a drug defendant is prosecuted in federal or state court may ultimately matter a whole lot more than whether a defendant actually faces a formal homicide charge (or even whether the defendant can be linked to an overdose death).  As noted at the outset of this article, the maximum state prison sentence an Ohio defendant can face for involuntary manslaughter is 11 years, but that same defendant can be looking at a mandatory minimum federal prison sentence of 20 years or even LWOP just based on the quantity of drugs even without a direct connection to an overdose death.  Moreover, a defendant facing homicide charges in state court can perhaps hope that a prosecutor will not be able to prove to a jury a sufficient causal link with a drug death beyond a reasonable doubt; a defendant facing a mere allegation of causing a death in federal court has no right to a jury finding or to demand proof beyond a preponderance of the evidence unless that particular finding directly impacts the statutory sentencing range.

These realities serve to inform and underline the importance and significance of an (Obama-appointed) US Attorney like Kerry Harvey deciding to make these cases a federal priority.  This federal prosecutor's stated belief that federal intervention with extreme federal mandatory minimums brings solace to families and enables going after bigger suppliers ultimately likely results in far more prison for far more defendants than any decision by any state prosecutor to start leveraging state homicide laws.

Some prior related posts:

December 18, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

Friday, December 15, 2017

Remarkable story of jury sentencing, jury actions and a victim's response from Virginia

A helpful reader made sure I did not miss this remarkable story from Virginia as reported in the Washington Post under the headline "First the jury convicted this 19-year-old maid for stealing. Then they took up a collection to pay her fine." Here are highlights:

After she was arrested, Mendez Ortega spent eight days in jail until she was released on $1,000 bond . The jury was not told that.  The jury also was not told that Mendez Ortega apparently is not in the country legally, as Copeland said she was told by prosecutors, because it was not relevant to whether she stole the rings.  “I think it’s relevant to the case,” Copeland said.  She said the penalties of a felony conviction, such as not being able to vote or buy a gun, would not be actions available to an immigrant in the country illegally anyway....

The trial seemed utterly ordinary.  A 19-year-old maid swiped a woman’s three rings worth at least $5,000 from a house she was cleaning in Fairfax City, Va., but later returned them after the police questioned her.  She was charged with felony grand larceny.

What the jury did was extraordinary.  They felt bad for the young woman, pregnant with her second child, and agreed that she had made a dumb, youthful mistake. Reluctantly, they convicted her of the felony.  But the fine they imposed was her daily pay as a maid, $60. And then they took up a collection and gave her the money to pay the fine.

“The general sentiment was she was a victim, too,” said the jury foreman, Jeffery Memmott. “Two of the women [jurors] were crying because of how bad they felt.  One lady pulled out a $20 bill, and just about everybody chipped in.”  Memmott then contacted the public defender in the case, and went to the home of Sandra Mendez Ortega. He gave her the jury’s collection, which totaled $80....

The two-day trial was held in July, but the sentencing was last Friday before Fairfax County Circuit Court Judge Robert J. Smith.  Mendez Ortega’s lawyer, assistant public defender Michael C. Cash, asked the judge to defer the case and not enter a conviction or sentence in light of the defendant’s actions and the jury’s response.  Smith declined, entered the conviction and imposed the $60 fine.  Numerous veteran criminal lawyers, on both the prosecution and defense sides, said they had never heard of a case where a jury paid a defendant’s fine.

A happy holiday story, right?  Well what if you’re the woman whose rings were stolen?  Although she was not pleased when the jury returned from their deliberations with only a $60 fine for the felony conviction, crime victim Lisa Copeland was appalled when she learned that the jury had also paid the fine.  “I just pray that they’re never in my shoes,” Copeland said. She said Mendez Ortega never accepted responsibility for the theft.  “If she had accepted accountability, I would be okay with all of this.  The fact that she won’t accept accountability makes it wrong.”

Copeland said Mendez Ortega told a series of lies from the start, and then unfurled a tragic life story that convinced the jury to impose a punishment of a $60 fine.  “I was outraged,” Copeland said.  “I was just flabbergasted. I didn’t think $60 equated to the crime at all.” She did not know the jury had taken up a collection for Mendez Ortega until she was contacted by a reporter.

The case began with Copeland’s discovery in September 2016 that her engagement and wedding rings were missing from the container where they were usually kept.  The engagement ring had been her grandmother’s, made in 1943, and the two rings were appraised at $5,000 in 1996, Copeland said.  Copeland didn’t realize a third, inexpensive ring had been taken until it was turned in.... 

At trial, the facts were not really in dispute. The jury did not hear from Mendez Ortega during the case in chief, but they were already sympathetic to her. “We didn’t feel she should have been tried and convicted,” said Memmott, the foreman. “We tried every way we could to find some way of not convicting her.  But the legal standard was very clear.”  Two other jurors agreed that the felony conviction was appropriate, given the facts and the law.  Lisa Copeland was amazed. “The fact that she confessed,” she said, “and they didn’t want to convict her?  I don’t get this. That’s basically saying it’s okay to steal.”

Then during the sentencing phase, Mendez Ortega took the stand.  She faced a possible sentence of up to 20 years in prison and a fine of up to $2,500.  She told the jury she had dropped out of school after sixth grade, that she first became pregnant at 15, that she was pregnant again at 19 and had no job, according to court records. “The whole time she was telling the sob story,” Lisa Copeland said, I looked at my husband and said, ‘I’ve heard enough of this.'”  She noted that after Mendez Ortega took the rings, “she lied to the cops, she lied to her employers.  She didn’t turn in the rings, she made somebody else do it.  She confessed, but claimed that the rings were in the bathroom.  And then she tried to blame her boss.”

When the jury went back to deliberate on a sentence, the jurors said they quickly agreed that no jail time was appropriate, and that only a small fine should be imposed. “We all came to the conclusion,” Memmott said, “we should fine her the amount she made for a day’s work.”...  “The degree of empathy that was shown by these citizens,” said a third juror who asked to remain nameless, “and the serious way everybody took their responsibility, was really remarkable.”

Remarkable is the word I would attach to every part of this story, while also noting that this would only be possible in a jurisdiction like Virginia that includes a system of jury sentencing. Interestingly, this story does not speak to whether or how the victim here spoke during the trial/sentencing proceedings.  I am pretty sure victims in Virginia have a right to speak at sentencing, and I wonder if this now-aggrieved victim is upset in part because she did not exercise that right.

December 15, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Call for Papers associated with the Innocence Network Conference

I am always happy to use this forum to relay calls for papers and/or conferences announcements, and here is a two-fer that I received this afternoon:

The Innocence Scholarship Committee of the Innocence Network is seeking high quality social science and legal scholarship for presentation at the 2018 Innocence Network Conference in Memphis, Tennessee on March 23-24.

Areas of research are open but should touch upon the multifaceted causes, implications, and/or remedies of wrongful conviction.  International papers are welcome but must be submitted in English.  Please submit a title and paper proposal to the Innocence Scholarship Committee at this Gmail account: innocencescholarship @ gmail.com by January 16, 2018. Paper proposals must be no more than 600 words.  Completed drafts must be submitted to the Committee by March 17, 2018.

The Innocence Scholarship Committee is arranging for publication for those papers accepted for Conference presentations in a symposium edition of the Northeastern Law Review.

The Innocence Scholarship Committee is composed of the following Members: Professor Valena Beety, West Virginia Innocence Project, West Virginia College of Law; Professor Keith Findley, Wisconsin Innocence Project, University of Wisconsin Law School; Professor Stephanie Roberts Hartung, New England Innocence Project, Northeastern Law School; Associate Clinical Professor Paige Kaneb, Northern California Innocence Project at Santa Clara Law; Dr. Glinda Cooper, Innocence Project; and Ms. Vanessa Meterko, Innocence Project.

December 15, 2017 in Offense Characteristics, Recommended reading | Permalink | Comments (1)

Wednesday, December 13, 2017

"Opioids: Treating an Illness, Ending a War"

The title of this post is the title of this new report from The Sentencing Project. Here is how the report's executive summary gets started:

More people died from opioid-related deaths in 2015 than in any previous year.  This record number quadrupled the level of such deaths in 1999. Unlike the heroin and crack crises of the past, the current opioid emergency has disproportionately affected white Americans — poor and rural, but also middle class or affluent and suburban.  This association has boosted support for preventative and treatment-based policy solutions. But the pace of the response has been slow, critical components of the solution — such as health insurance coverage expansion and improved access to medication-assisted treatment— face resistance, and there are growing efforts to revamp the failed and costly War on Drugs.

This report examines the sources of the opioid crisis, surveys health and justice policy responses at the federal and state levels, and draws on lessons from past drug crises to provide guidance on how to proceed. The War on Drugs did not play a major role in ebbing past cycles of drug use, as revealed by extensive research and the reflections of police chiefs. In 2014, the National Research Council concluded: "The best empirical evidence suggests that the successive iterations of the war on drugs — through a substantial public policy effort—are unlikely to have markedly or clearly reduced drug crime over the past three decades."

Growing public awareness of the limited impact and devastating toll of the War on Drugs has encouraged many policymakers and criminal justice practitioners to begin its winding down.  The number of people imprisoned nationwide for a drug offense skyrocketed from 24,000 in 1980 to a peak of 369,000 in 2007.

It has since declined by nearly one-quarter, reaching approximately 287,000 people in the most recent count.  The lessons from past drug crises and the evidence base supporting a public health approach can guide policymakers as they seek an end to the current opioid crisis.

December 13, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, December 08, 2017

Child molester/gymnastics coach Larry Nassar gets maxed-out, 60-year federal prison sentence for child porn offenses

The typical defendants sentenced in federal court for child porn offense have not been convicted of contact offenses and have strong arguments for being sentenced below the severe federal sentencing guideline ranges.  But former USA Gymnastics doctor Larry Nassar is not your typical federal child porn offender and, as reported here, he did not convince a judge he should get a below guideline sentence. Indeed, he got the maxed out in every possible way at his sentencing in federal court yesterday:

Larry Nassar, the 54-year-old former MSU and USA Gymnastics doctor whose work took him to multiple Olympic Games, received an effective life sentence when a federal judge on Thursday sentenced him to 60 years in federal prison on child pornography charges.

"He has demonstrated that he should never again have access to children," U.S. District Judge Janet Neff said as she imposed a sentence that went beyond guidelines calling for 22 to 27 years in prison. He was sentenced to 20 years on each of three counts to which he's admitted. The sentences are to be served consecutively.

Neff also ordered that his federal time would be served consecutively to state sentences for sexual assault to which he's also admitted. He will be sentenced next month on those charges.The courtroom was filled to capacity. Among those in attendance were several victims of Nassar's admitted sexual assault, their relatives and their attorneys. Several victims said after the sentencing they were still trying to process their feelings, but it was a step toward justice.

“I was blown away with what the judge did today, and I thought it was very fitting," Larissa Boyce, who first raised concerns about Nassar to an MSU coach in 1997, said at a news conference after the hearing. "I can’t thank her enough for the things that she said."

In court filings last week, Nassar's attorneys asked Neff to show leniency, saying the doctor had worked toward redemption by helping fellow inmates and taking Bible classes since his arrest nearly a year ago. Nassar, speaking in a barely audible voice from the courtroom podium on Thursday, told Neff he’d long battled an addiction he likened to alcoholism or drug addiction. His shame kept him from asking for help, he said. He said he hoped his crimes would educate people about the problem to prevent others from being hurt in the future....

But Neff said Nassar’s crimes hurt so many people on so many levels. That includes the unnamed children in the pictures who feel assaulted every day knowing someone somewhere could be viewing their bodies, she said. It includes the women Nassar assaulted who now struggle to trust doctors and struggle with their own sense of self-worth.

The judge said she'd sentenced defendants in child pornography cases for a decade but Nassar was "unique" in the sheer volume of pornography he'd collected and the brazen way he assaulted women during medical appointments with parents in the room. "You have to wonder whether he felt he was omnipotent, whether he felt he was getting away with something so cleverly," Neff said as several victims and family members in the room started to cry. "I am a mom of two daughters. I cannot imagine that kind of situation."

Federal prosecutors had argued for the maximum 60 years, saying Nassar "poses an immense risk to the community" and quoting one victim who said he "will not hesitate to reoffend" if he's ever freed. Neff agreed.

Nassar pleaded guilty in July to three federal charges after investigators said he possessed at least 37,000 graphic videos and images of child pornography, including images of prepubescent children engaged in sex acts. He also pleaded guilty to obstruction of justice for trying to destroy the evidence. The U.S. Attorney's Office said Nassar paid to have his work laptop wiped clean and threw away hard drives containing the pornography. Investigators were only able to obtain those hard drives at Nassar's Holt property because the garbage truck happened to be running late that day, according to court records.

Some of the videos appeared to show Nassar assaulting young girls in a pool, investigators said. As part of a deal with federal prosecutors to obtain his guilty plea, prosecutors agreed they would not charge him with alleged sexual exploitation of children in relation to four reported victims. Thursday's sentencing ends one of three criminal cases against Nassar. He's also pleaded guilty to sexual assault charges in both Ingham and Eaton counties and could get to up to life in prison in those cases when he's sentenced next month.

Prior related post:

December 8, 2017 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, December 07, 2017

Judge "convicts" Michael Slager of murdering Walter Scott and gives him 20 years in federal prison

As noted in this prior post, in federal court there was this week a homicide mini-trial as part of the sentencing of former South Carolina police officer Michael Slager pleaded guilty to a federal civil rights offense as a result of his lethal shooting of Walter Scott.  This lengthy local article, headlined "Former officer Michael Slager sentenced to 20 years in prison for shooting of Walter Scott, reports on the results of the judicial inquisition and ultimate sentencing decision.  Here are a few particulars:

Two and a half years after millions saw a cellphone video of Michael Slager gunning down Walter Scott, the 20-year prison sentence he was handed Thursday will be etched into history as one of the most significant for an American police officer involved in a fatal shooting.

Findings by a federal judge aligned with accusations that observers nationwide had aired against the former North Charleston officer since the footage emerged in April 2015: He committed murder when he shot at Scott eight times as the black motorist ran away. He also later misled investigators and lied during court testimony, the judge determined.

The judge rejected the 36-year-old's claim that Scott's own actions at least initially warranted the gunfire. The decision ended a courtroom battle that has played out since scrutiny befell North Charleston amid a national conversation about police killings. But Slager's penalty on a federal charge of violating Scott’s civil rights may extend that legal fight through appeals. It was more than twice what Slager’s defense team had hoped for, and it came as a surprise to many on both sides of the dispute....

U.S. District Judge David Norton had acknowledged two families who cried in his downtown Charleston courtroom and described how their lives had been torn apart by the shooting. Neither, he said, would be satisfied with Slager’s punishment.  "Judging by (Slager’s) history and characteristics, he has lived a spotless life," he said. "Regardless, this is a tragedy that shouldn’t have happened."...

Slager pleaded guilty in May to the federal civil rights violation for using excessive force. But it was the judge’s responsibility to decide the underlying offense: second-degree murder or voluntary manslaughter.

Norton largely dismissed Slager’s manslaughter argument that the officer had been provoked by Scott’s resistance, calling the motorist’s actions “wrongful” but not deserving of Slager’s reaction. Instead, the officer acted with malice by repeatedly shooting the unarmed and fleeing Scott, the judge said.

In reaching the murder finding, Norton rejected a pre-sentencing report’s recommendation that Slager should serve between 10 and 13 years behind bars.  The judge reduced the penalty from the maximum lifetime term for reasons that had little to do with the shooting: for the way federal and state prosecutors collaborated on his prosecution and the risk of abuse Slager will face in prison because he’s a former police officer.

The sentencing relied on several legal determinations based on Norton’s view of the facts, and in delivering the penalty, he mentioned that he had consulted his wife, a forensic pathologist, in reviewing Scott’s autopsy. Defense attorneys took exception to those comments and the result, but the judge said their complaints would have to be addressed by an appeals court.

Slager will likely get credit for the more than yearlong stint he has already spent in jail. In the federal justice system, there is no parole.

Prior related posts:

December 7, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Wednesday, December 06, 2017

Notable state and federal developments in the Garcia Zarate/Kate Steinle case

Last week, I blogged here about the California state court verdict in a high-profile homicide case, asking in the title of my post "Can, should and will AG Sessions seek a federal prosecution of Garcia Zarate after 'disgraceful verdict in the Kate Steinle case'?."  As noted below, we already have an answer to this question, though there is also state prosecution news we should cover first.

Specifically, as reported here, the "attorneys who won acquittal for a homeless undocumented immigrant on murder, manslaughter and assault charges in the shooting of Kate Steinle on a San Francisco Bay pier will seek to have the sole conviction in the case dismissed as well." Here is more:

A jury last week found Jose Ines Garcia Zarate, 45, guilty of a lesser count of being a felon in possession of a gun in connection with Steinle’s death on Pier 14 in July 2015, after the defense argued at trial that the shooting was an accident that happened after the defendant found a stolen gun wrapped in a T-shirt or cloth under a bench.

Now the defense says the conviction is inconsistent with the jury’s larger acquittal. If the panel believed Steinle may have been killed by an accidental discharge, lawyers assert, Garcia Zarate should not be held responsible for possessing the weapon — even though he threw it in the bay as Steinle lay dying.  Matt Gonzalez of the San Francisco Public Defender’s Office, the lead attorney in the case, said he will appeal the charge at some point after Garcia Zarate’s Dec. 14 sentencing in Superior Court. Gonzalez said his appeal will contend jurors should have been told that “momentary” possession of a gun is not necessarily a crime. “If you possess it just to dispose of it or abandon it, it wouldn’t be a crime,” he said.

Because I am not well versed in California's law of possession, I cannot provide an informed assessment of whether this defense claim provides a compelling basis to reverse the one state conviction the state jury brought back against Garcia Zarate. But I can provide a link to and excerpt from this press release from the US Department of Justice highlighting why federal possession law is now of great import to Garcia Zarate:

A federal grand jury indicted Jose Inez Garcia-Zarate today for being a felon in possession of a firearm and ammunition, and for being an illegally present alien in possession of a firearm and ammunition, announced United States Attorney General Jefferson B. Sessions; United States Attorney Brian J. Stretch from the Northern District of California; and Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Special Agent in Charge Jill Snyder.

According to the indictment, on July 1, 2015, Garcia-Zarate, a citizen of Mexico who reportedly is 47 years old, possessed a semi-automatic pistol and multiple rounds of ammunition in violation of 18 U.S.C. § 922(g)(1) (felon in possession of a firearm) and 18 U.S.C. § 922(g)(5) (unlawfully present alien in possession of a firearm).

An indictment merely alleges that a crime has been committed and Garcia-Zarate, like all defendants, is presumed innocent until proven guilty beyond a reasonable doubt. Garcia-Zarate currently is in state custody on other charges.  If convicted of either violation of 18 U.S.C. § 922(g), Garcia-Zarate faces a maximum statutory penalty of 10 years in prison.  However, any sentence will be imposed by the court only after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553.

Prior related post:

December 6, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

VW executive gets seven years in federal prison for emissions fraud

This Reuters article reports on today's notable white-collar sentencing in the Motor City.  Here are the sentencing basics:

A U.S.-based Volkswagen AG executive who oversaw emissions issues was sentenced to seven years in prison and fined $400,000 by a judge on Wednesday for his role in a diesel emissions scandal that has cost the German automaker as much as $30 billion.

The prison sentence and fine for the executive, Oliver Schmidt, were the maximum possible under a plea deal in August the German national made with prosecutors after admitting to charges of conspiring to mislead U.S regulators and violate clean-air laws.

“It is my opinion that you are a key conspirator in this scheme to defraud the United States,” U.S. District Judge Sean Cox of Detroit told Schmidt in court. “You saw this as your opportunity to shine ... and climb the corporate ladder at VW.”

Schmidt read a written statement in court acknowledging his guilt and broke down when discussing his family’s sacrifices on his behalf since his arrest in January. “I made bad decisions and for that I am sorry,” he said.

U.S. Department of Justice trial attorney Benjamin Singer argued in court that Schmidt was “part of the decision making process” at VW to hide a scheme to fake vehicle emissions results and had opportunities tell regulators the truth. “Every time he chose to lie,” Singer said.

In March, Volkswagen pleaded guilty to three felony counts under a plea agreement to resolve U.S. charges that it installed secret software in vehicles in order to elude emissions tests....

Schmidt was charged with 11 felony counts and federal prosecutors said he could have faced a maximum of up to 169 years in prison.  As part of his guilty plea, prosecutors agreed to drop most of the counts and Schmidt consented to be deported at the end of his prison sentence.

December 6, 2017 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (1)

Monday, December 04, 2017

Latest trial of Michael Slager for killing Walter Scott taking place during his federal sentencing for civil rights offense

As noted in this post from May, after a state mistrial in December 2016, former South Carolina police officer Michael Slager pleaded guilty to a federal civil rights offense as a result of his lethal shooting of Walter Scott.  That resolution all but ensured that continued debate concerning Slager's action would take place during his federal sentencing.  And this local article reporting on the first day of that sentencing highlights that this continued debate is in the form of a kind of mini-trial at sentencing.  Here are some details:

What Walter Scott did during his fatal confrontation with North Charleston officer Michael Slager and what the policeman said afterward quickly became the focus of the first day of Slager’s sentencing hearing.

Slager, 36, already has acknowledged violating Scott’s civil rights by repeatedly shooting the fleeing black man as a bystander filmed the encounter. He pleaded guilty to that in May, but key facts remain in dispute — a point on full display Monday at the federal courthouse in downtown Charleston.

Before hashing out a penalty, a judge must decide this week what underlying offense Slager committed in depriving Scott of his constitutional right to be free of excessive force: murder or voluntary manslaughter. After listening to three government witnesses, the judge gave no initial indication on how he might rule. The proceeding is expected to resume Tuesday morning, possibly with another prosecution witness before the defense takes over.

Prosecutors said Scott was simply trying to escape a traffic stop, and they called eyewitness Feidin Santana to back up their contention that Slager murdered Scott and lied to cover his tracks. They rejected Slager’s explanation for the shooting: that he fired only after Scott took his Taser. “I saw a man just determined to get away and leave,” Santana said of Scott. “Like I say in the video, it was an abuse — something unnecessary.”

It was the second time Santana publicly testified against Slager, whose murder trial in state court ended a year ago with a hung jury. Portions of his latest account in U.S. District Court were geared toward helping Judge David Norton decide whether Scott’s conduct contributed to Slager’s decision to shoot. Prosecutors said no; it was wrong from the moment the officer first pulled the trigger.

But defense lawyers said Scott could have at any point stopped and surrendered, and lead attorney Andy Savage pressed Santana about whether Scott had ever raised his arms and given up. “If that happened,” Santana responded, “we wouldn’t be here.”

Santana’s video footage of the April 4, 2015, killing brought national scrutiny to North Charleston amid a broader examination of police-involved deaths across the country. It also landed Slager in jail on a state murder charge when the cellphone clip emerged publicly three days later.

But the jurors in the state case were unable to agree whether he had committed a crime. At least one of them sat in the courtroom Monday, this time as an observer....

The hearing resembled a trial without the same rules of evidence and procedures that can slow proceedings. And the ultimate arbiter of justice is Norton, who can pick any sentence between no prison time and up to life behind bars.  A pre-sentencing report suggested a term of between 10 and nearly 13 years in prison, but defense attorneys asked the judge Monday for a “significant” departure from those guidelines because of the role Scott played in his own death.

In my prior post about this case after Slager's plea, I calculated based on the government advocating for the court to apply the guidelines for second degree murder and obstruction of justice that Slager would be facing a guideline range of roughly 17 to 22 years of imprisonment. But it would appear that the PSR in this case has urged the court to consider Slager guilty only of voluntary manslaughter for sentencing purposes. Of course, Slager has in fact only pleaded guilty to "a violation of 18 U.S.C. § 242, Deprivation of Rights Under Color of Law," but in the magical world of federal sentencing the offense of conviction still often does not really matter all that much.  In this high-profile case, it will be a judge not a jury tasked with both deciding what crime he really committed and what sentence should go with that crime.

Prior related post:

December 4, 2017 in Advisory Sentencing Guidelines, Blakely in Sentencing Courts, Booker and Fanfan Commentary, Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Saturday, December 02, 2017

Thanks to SCOTUS McDonnell ruling, record-long sentence for Congress member reduced to (significant) time served

A little more than eight years ago, as detailed in this post, federal prosecutors were seeking a (within-guideline) sentence of 27 years or more years for former US Representative William Jefferson following his bribery convictions.  Jefferson’s attorneys urged a sentence of less than 10 years, noting that no member of Congress had ever previously been sentenced to more than 100 months in prison.  As reported in this post, US District Judge T.S. Ellis ultimately imposed a record-setting prison sentence of 13 years.

Fast forward to this press story from yesterday, and we learn the details of the notable final chapter in this particular federal white-collar sentencing saga:

Ex-New Orleans Congressman Bill Jefferson walked out of a suburban Washington courthouse Friday owing no further obligations to the United States government, aside from monthly check-ins with a federal parole officer.  The five years and five months Jefferson spent in prison, as well as the $189,215.42 the feds seized from his bank accounts, served as enough punishment for Jefferson’s corruption convictions, U.S. District Judge T.S. Ellis III ruled.

The judge signed off on an agreement between Jefferson’s attorneys and federal prosecutors letting the disgraced former lawmaker walk away from the public corruption case against him after serving less than half of his original prison sentence.  “So, Mr. Jefferson, this ends a long saga,” Ellis said as Jefferson, his balding head shaved smooth and shoulders stooped slightly, stood before him. “You have paid your debt."

The former nine-term Democratic congressman was toppled from power a decade ago amid high-profile FBI raids on his home and congressional offices. Agents had secretly recorded meetings between Jefferson and a wealthy Virginia businesswoman acting as an FBI informant, eventually capturing Jefferson on video accepting a suitcase with $100,000 in cash in a suburban hotel room.  Agents later found $90,000 of the money in Jefferson’s freezer, wrapped in tinfoil and stuffed inside frozen food boxes.  The raid garnered national headlines and left Jefferson’s reputation in tatters....

Ellis, who presided over Jefferson’s trial and originally sentenced him to 13 years in federal prison, threw out seven of the ten counts against Jefferson in October in light of a 2016 U.S. Supreme Court decision requiring federal prosecutors to do more to prove public officials had abused their positions in corruption cases. The decision, which vacated the corruption conviction of former Virginia Gov. Robert McDonnell, triggered a wave of appeals from other former public officials. The judge also ordered Jefferson to be released early from federal prison.

Jefferson, however, had faced the prospect of returning to prison. Ellis left three counts of the conviction standing, each of which carried a potential prison term well beyond the five years Jefferson spent locked up. At Friday’s hearing, Jefferson said little, instead letting his attorneys — both of whom represented him during his eight-week trial — do the talking....

Jefferson offered his gratitude to friends, relatives and supporters who’d stood by him over the years while speaking to reporters outside the courtroom.  The former politician said he plans to stay retired from public life but hopes to become involved in the community and his local church....  “I don’t have time to be angry with anything,” Jefferson said when asked if he harbored bitterness about his time in prison.  Jefferson maintained his innocence in the case even after his conviction but declined Friday morning to say whether he did anything wrong.

As part of the deal with prosecutors, Jefferson accepted his conviction on two federal conspiracy counts and agreed not to file any further appeals in the case.  Ellis, in signing off on the agreement, noted that federal sentencing guidelines recommend 8 to 10 years in prison on those two charges.  The judge called it a fair resolution for everyone involved.  Yet Ellis still castigated the ex-lawmaker’s actions as “venal” in handing down the lesser sentence.

Prior related posts from 2009:

December 2, 2017 in Offender Characteristics, Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (0)

Friday, December 01, 2017

With guilty plea entered, former national security director Michael Flynn now faces (easy?) sentencing

As reported here via the New York Times, "President Trump’s former national security adviser, Michael T. Flynn, pleaded guilty on Friday to lying to the F.B.I. about conversations with the Russian ambassador last December during the presidential transition."  Here are the most basic legal particulars:

Mr. Flynn, who appeared in federal court in Washington, acknowledged that he was cooperating with the investigation by the special counsel, Robert S. Mueller III, into Russian interference in the 2016 election. His plea agreement suggests that Mr. Flynn provided information to prosecutors, which may help advance the inquiry....

Mr. Flynn pleaded guilty to making false statements to F.B.I. agents about two discussions with the Russian ambassador to the United States, Sergey I. Kislyak. Lying to the F.B.I. carries a penalty of up to five years in prison.

Sentencing fans know, of course, that the statutory maximum for any federal offense of conviction typically matters much less than the applicable federal guideline sentencing range. For that reason and others, sentencing fans will want to check out Michael Flynn's "Plea Agreement" and "Statement of Offense" available here via the National Law Journal.  (The folks at Lawfare also have lots of Flynn docs at this link.)  Pages 2-3 of the plea agreement highlight the sentencing story (which serves as the basis for the "easy" adjective in this post title), and here is a snippet: 

A. Estimated Offense Level Under the Guidelines

The parties agree that the following Sentencing Guidelines sections apply:

U.S.S.G. Base Offense Level: 6

Total: 6

B. Acceptance of Responsibility

The Government agrees that a 2-level reduction will be appropriate, pursuant to U.S.S.G. 3E1.1, provided that your client clearly demonstrates acceptance of responsibility, to the satisfaction of the Government, through your client's allocution, adherence to every provision of this Agreement, and conduct between entry of the plea and imposition of sentence....

In accordance with the above, the applicable Guidelines Offense Level will be at least 4....

D. Estimated Applicable Guidelines Range

Based upon the agreed total offense level and the estimated criminal history category set forth above, your client's estimated Sentencing Guidelines range is zero months to six months' imprisonment (the "Estimated Guidelines Range")....

The parties agree that, solely for the purposes of calculating the applicable range under the Sentencing Guidelines, neither a downward nor upward departure from the Estimated Guidelines Range set forth above is warranted, subject to the paragraphs regarding cooperation below. Accordingly, neither party will seek any departure or adjustment to the Estimated Guidelines Range, nor will either party suggest that the Court consider such a departure or adjustment, except as provided in the preceding sentence.

December 1, 2017 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (22)

Monday, November 27, 2017

Record sex-trafficking sentence, 472 years of imprisonment, imposed in Colorado court

This local article, headlined "‘The tough ones are us women:' Colorado pimp gets 472 year sentence," report on a sentencing in Colorado that seems to be record-setting. Here are the details:

A man convicted of sexually exploiting women as a pimp will spend the rest of his life – and then some – in prison. In a sentencing hearing [last] Tuesday afternoon, Arapahoe County Judge Peter F. Michaelson sentenced the man found guilty of running a child prostitution ring to 472 years in prison. That is more than four times the minimum required sentence - and the largest sentence brought down for a human trafficking case in the country.

Brock Franklin was indicted in 2015 by a grand jury for allegedly using drugs and violence to control young girls, often forcing them into lewd acts as part of a child sex trafficking ring. Four others have already been sentenced for their involvement in the human trafficking ring.

Prosecutors said Franklin preyed on young women and girls who were vulnerable. In his trial, a jury heard from eight of the nine victims in the case. “Damage isn’t lessened because of where someone came from or where someone did not come from,” an attorney for the Arapahoe County District Attorney’s Office said in court Tuesday.

In a packed courtroom Tuesday afternoon, prosecutors read two letters from Franklin’s victims. “Every morning I wake up I have to remind myself the defendant will no longer be able to hurt me,” the first letter began. The victim, identified only as “DY,” wrote to the court about the PTSD, anxiety, and depression she suffers because of Franklin’s actions....

In March of this year, Franklin went on trial for 34 counts including pimping a child, patronizing a child prostitute, kidnapping and assault. He was found guilty on 30 counts including human trafficking, sexual exploitation of a child, child prostitution, kidnapping, pimping of a child, and racketeering. He was acquitted of several charges including distributing marijuana and assault with a deadly weapon....

The minimum sentence would have been 96 years in prison, which is what Franklin’s defense team requested, reminding the judge Franklin had not been convicted of any violent crimes. Janet Drake, with the Attorney General’s Office, asked the judge for a 616 year sentence on behalf of the people of the state of Colorado. “This is not a minimum sentence type of case,” Drake said.

Franklin’s defense team argued a 616 year sentence would not be appropriate. His attorneys told the judge a 96 year to life sentence would be ample punishment, since Franklin would likely never live to see his parole eligibility even with that sentence. The defense also said Franklin’s troubled past, including being homeless at age five, should be considered in his sentencing.

I am not sure what I find more remarkable, the fact that the judge here imposed a sentence of nearly half a millennium or the fact that this sentence of 472 years was a full 144 years less than the term requested by prosecutors.

November 27, 2017 in Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

Ohio getting started on Justice Reinvestment 2.0 to confront latest criminal justice challenges

For more than a decade, the Council of State Governments Justice Center and the Justice Department and the Pew Public Safety Performance Project have worked on "Justice Reinvestment" projects in numerous states. These projects generally involve careful study of state and local criminal case processing in order to identify inefficient use of limited prison space and efforts to reduce prison admission and reinvest resulting savings to services that would achieve better public safety outcomes at a lower cost. Now, as this local article from Ohio highlights, it at least one state a second generation of this project is underway:

Amid a glut of nonviolent drug offenders and probation violators serving time in state prisons, Ohio again is taking a look at criminal-justice reform. The effort seeks to tweak the system and criminal sentencing to account for the impact of violent crime and opioid-fueled offenses “while enhancing public safety.”

The 24-member “Justice Reinvestment” committee also hopes to reduce recidivism while pursuing schemes to better route offenders to the right place, whether prison or local community control programs. Emphasis will “explicitly focus on what is happening before prison, or in other words, the system’s ‘front end,’ where many decisions are made that impact both future judicial and corrections practices,” said Michael Buenger, administrative director of the Ohio Supreme Court.

The committee, which includes [State corrections Director Gary] Mohr, [Union County Prosecutor David] Phillips, [Franklin County Common Pleas Court Judge Charles] Schneider and other judges, prosecutors, lawmakers and state and local officials, is scheduled to submit a report and recommendations to the General Assembly in the fall of 2018.

The group began its work this month with a report from the Council of State Governments Justice Center that laid out the scope of its challenge:

‒ Reflecting the opioid addiction crisis, drug-abuse arrests increased 12 percent in Ohio to more than 32,000 annually between 2011 and 2016. Only North Dakota and South Dakota saw a higher increase. A total of 5,609 drug offenders were committed to state prisons last year alone.

‒ Property crime decreased 23 percent between 2011 and 2016 but violent crime ticked up 6 percent over 2015 and 2016, mostly because of increases in Cleveland, Dayton and Toledo. “Low-level crimes drive arrest activity and limit law enforcement’s capacity to respond to violent crime.”

‒ Ohio has the nation’s third-highest rate of people on probation and parole, nearly 244,000 at the end of 2015. Offenders released and then sent back to prison for probation violations account for 23 percent of annual commitments to state prisons. “Ohio still lacks a coherent strategy for recidivism reduction.”

‒ The number of offenders in the $1.8 billion-a-year prison system grew by 9 percent between 2000 and 2016, with the population generally holding steady since 2007 around 50,000 to 51,000. Offenders, in general, also are serving longer stretches in prison. “Prison crowding and costs remain high.”

‒ Ohio’s criminal sentencing scheme “has contributed to crowded prisons and large misdemeanor and felony probation populations. ... Ohio law shows a micromanaged approach to sentencing policy that is needlessly complex.”

State prisons housed 8,300 offenders when Mohr joined the Ohio Department of Rehabilitation and Correction as a teacher’s aide in 1974. By the middle of last year, that number had increased six-fold to 51,014 prisoners (just a tad off the all-time high), who cost an average of $72 a day to house. “Think about the budget, the amount of investment, the reason why we’re still on this path,” Mohr said. “I think there are too many Ohioans incarcerated. It’s a much better investment to place nonviolent offenders in community programs. All evidence shows it’s twice as effective at one-third the cost.”

Mohr is encouraged by a community-alternative program in which the state is spending up to $58 million over two years to divert low-level, nonviolent felony offenders, many convicted of drug possession, from state prisons to local programs. Since the middle of last year, the prison population has dropped nearly 5 percent to 48,799. Forty-eight participating counties are using work-release, substance-abuse treatment, intensive supervision and other programs. Franklin and other large counties still are deciding whether to participate.

Mohr said the state should invest in the lives of low-level offenders “earlier in their lives” in local corrections programs to help address employment, behavioral health and substance-abuse issues before they lead to more serious offenses and state prison time. “All of the counties that have tried it loved it. Ohio is, in my mind, safer than it was before.”

Part of the group’s discussions should center on taking some low-level felonies, such as simple drug possession, that are contributing to prison packing and making them misdemeanors to be handled locally, and improved probation services, Mohr said.

Judge Schneider said that judges are chafing under some criminal sentencing guidelines. “Mandatory sentencing makes sense for crimes like murder and rapes, but some of the drug charges where it is mandatory is frustrating,” he said. Judges should be free to tailor sentences for lower-level offenses to match the offender and his crime “if you can articulate specific facts” whether a prison sentence is appropriate or not, he said.

“If you want us to treat certain (felony) offenses as misdemeanors, then make them misdemeanors. Quite frankly, the legislature doesn’t have the will to do that,” Schneider said, adding, for example, that the current fifth-degree felony threshold of $500 in a theft offense should be raised. Lawmakers, he said, are too fond of creating new offenses and tinkering with prison sentences.

The state’s current scheme also is “schizophrenic” about drug addicts, the judge said. “We say it’s not his fault, it’s a disease. But when that person breaks into a house to fund that disease, it becomes a serious crime. It’s the same person, folks,” Schneider said.

Union County’s Phillips said that, from the perspective of prosecutors, “our primary interest is public safety, No. 1, and holding offenders accountable, No. 2.” He differed from Mohr’s assertion that prison is not appropriate for some. “You should talk to victims of crime and see if they think that is true. Community control sanctions do not work for some people and they need to go to prison.”

At the Ohio Criminal Sentencing Commission's website, one can now find these background documents with more information concerning the state's reinvestment in justice reinvestment:

Ohio Justice Reinvestment Ad Hoc Committee Kicks off Review of Criminal Justice System

Justice Reinvestment in Ohio: Overview

Justice Reinvestment 2.0 in Ohio: Launch Presentation

November 27, 2017 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)

Friday, November 24, 2017

"What Rape Reform Needs: More Convictions, Less Punishment"

The title of this post is the headline of this recent interesting commentary authored by Kari Hong over at The Crime Report. Here are excerpts: 

In what is being called the “Post-Weinstein era,” victims of sexual assault and harassment are finally being believed. This no doubt is overdue, but in the context of rape, believing the victim will not be enough. Three reforms are essential to how we convict and punish rapists.

First, the way states currently define the crime of rape does not target the conduct of unwanted sex. In the United States, rape was initially defined by unwanted sex accompanied by an element of force. The proof of force was and continues to be a high bar to meet, usually requiring threats, physical violence, actual injury, or weapons....

The first needed reform to the definition of the crime of rape, then, is to abandon the definitions of rape used by 42 states. Rape should not be limited to unwanted sex when there is also force or only arising in specific contexts. Rather, all states should simply define rape as only eight currently do: sex without the consent of the other person. Full stop.

Second, unlike homicide and theft offenses, rape law has not benefited from having liability arise from more sophisticated mental states that define the crime....

The second essential reform, then, is establishing a new crime of “rape by malice,” a crime that criminalizes both those who knew — or deliberately did not care to know — if their advances were consented to. Unwanted sex arises from multiple motivations. A mens rea for rape should be flexible and responsive enough to criminalize as much unwanted sex as possible without criminalizing lawful or wanted sex.  Other crimes such as homicide have expansive definitions to capture all killings made by the predators, the fools, and the careless.  A new crime of rape by malice would do the same.

Third, these proposed reforms to the redefinition of rape would lead to more convictions. But convicting more rapists under our current criminal justice system should not be welcomed. On paper, 19 states have respective maximum terms of 99 years, 100 years, and life sentences. And 12 states begin at 10 years.

Although only six states and the federal government even compile data on the number and lengths of sentences, where data is available, the range in actual sentences for rape was from eight to 30 years.  In the rush to condemn rapists, throwing people away in prison is a poor policy option that no other developed country follows.  These numbers should be alarming.  Whereas 40 percent of people convicted of all felonies will be punished with prison terms, about 90 percent of all rapists will receive a prison sentence, and a very lengthy one at that.

In the rush to condemn rapists, throwing people away in prison is a poor policy option that no other developed country follows.  In 35 comparable countries, the vast majority impose prison terms that do not exceed five years. This short sentence does not at all communicate that the crime was not heinous, the offender not depraved, or the victim does not merit justice....

If the goal is to reintegrate into society convicted rapists who will not reoffend, the third essential reform is to impose shorter sentences for rapists.  It is shorter sentences and actual treatment that succeed over calls to simply lock them up.

November 24, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (15)

Wednesday, November 22, 2017

Does and should anyone care about just how and where child molester/gymnastics coach Larry Nassar rots in prison?

The question in the title of this post is prompted by this new CNN article headlined "Ex-USA Gymnastics doctor apologizes, pleads guilty to criminal sexual conduct." Here are the basics from the article, with the last quoted sentence and link of particular note for sentencing fans:

Larry Nassar, the former acclaimed USA Gymnastics team doctor, pleaded guilty Wednesday to seven counts of first-degree criminal sexual conduct and admitted in a Michigan court to using his position to sexually abuse underage girls.  Three of the charges applied to victims under 13, and three applied to victims 13 to 15 years old.  Other charges were dismissed or reduced as part of a plea agreement.  All 125 victims who reported assaults to Michigan State Police will be allowed to give victim impact statements at Nassar's sentencing in January, according to the plea deal.

Nassar made a short statement apologizing and saying he was hopeful the community could move forward. "For all those involved, I'm so horribly sorry that this was like a match that turned into a forest fire out of control," he said.  "I have no animosity toward anyone. I just want healing. ... We need to move forward in a sense of growth and healing and I pray (for) that."

Judge Rosemarie Aquilina said Nassar violated the trust of his patients, and she praised the victims for coming forward.... Dozens of women, including several gold-medal winning members of the famed "Fierce Five" team of American gymnasts, have accused Nassar of sexual misconduct in his role as the USA Gymnastics doctor....

In all, Nassar had been charged with 22 counts of first-degree criminal sexual conduct and 11 counts of third-degree criminal sexual conduct at the state level, Megan Hawthorne, deputy press secretary for state Attorney General Bill Schuette, told CNN in July.  Several of the first-degree charges pertained to victims under 13, and all of the state-level charges involve former family friends, gymnasts and patients of Nassar, Hawthorne said.

Separately, Nassar is also awaiting sentencing on federal charges of receiving child pornography, possessing child pornography and a charge that he hid and destroyed evidence in the case.  That hearing is scheduled for Monday.

The linked article at the end here details that Nassar's federal plea from July was to a series of federal counts with a "combined maximum of 60 years of imprisonment." For a host of reasons, I would expect the calculated guideline range for Nassar on his federal child porn charges to be life imprisonment, and I would predict that he will get a richly deserved statutory maximum sentence of 60 years imprisonment at his upcoming federal sentencing.  And because Nassar is in his mid-50s, this means he likely will be getting and serving a functional life sentence in federal court before he is even sentenced in Michigan on the state sex charges that he pleaded guilty to today.

The fact that Nassar likely will already be serving a functional federal life term before being sentenced on state charges does not, in my mind, make state proceedings unimportant or inconsequential, especially given that his victims may only have a chance to have their voices directly heard during the state proceedings.  But I asked the question in the title of this post because I wondered if anyone has a particularized view in a case like this as to whether it matters, symbolically or practically, just how a defendant who commits so many terrible crimes is subject to sentencing and prison service.

November 22, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

Thursday, November 16, 2017

"Violent Crime: A Conversation; Is it rising or declining? Does it matter?"

The title of this post is the headline of this notable new Marshall Project piece that captures highlights of a conversation last month that included a number of leading criminal justice researchers and advocates.  I recommend the full piece, and here is the  introduction and parts of the first few reprinted comments:

Over the last two years, there has been a great deal of arguing about the prevalence of violent crime in America and how the national crime rate is changing.  The president and attorney general say it’s soaring. Criminal justice reformers aren’t so certain.  A Who’s Who of crime researchers and experts gathered to tackle the question at the Smart on Crime Innovations conference at the John Jay College of Criminal Justice in New York City last month.... These excerpts have been edited for length and clarity. You can watch the conversation in its entirety here.

Thomas Abt: Just to start us off, in 2016, the last year for which we have the official UCR [FBI Uniform Crime Reporting] data, there were 17,250 homicides. That's up 8.6 percent from 2015 and that comes on the heels of a 12.1 percent increase in 2014-2015. That adds up to about a 21 or 22 percent increase in homicide over two years, which is the largest two-year increase in 25 years. At the same time, we have to acknowledge that the rates of violent crime here in the United States right now are about half of what they were at their peak in the early 90's....

In some ways this question of, “Is this a trend?” is somewhat besides the point because in some ways it doesn't matter. The rates were already far too high, much higher than in other developed nations and especially too high for poor communities of color. One thing I want to get across is that this issue of violent crime, of homicide, is an important issue, literally a matter of life or death, whether or not there is a trend going on. And too often this issue is considered a political football that's carried back and forth.

Criminal justice reformers sometimes want to downplay the issue because they worry that this is going to impact the momentum for other criminal justice reforms. Other people want to exaggerate the issue, and so fear and division link this to other issues like a broader cultural war, or tough on crime, or law and order agenda about crime and immigration.  It's very important that there is a progressive criminal justice response to the issue of violent crime. It disproportionately impacts the constituencies that we reformers claim we care about, which is poor communities of color. The violence in these communities causes intense suffering and if we fail to address that suffering, it's a real disservice to them.

Adam Gelb: Put yourself back 10, 12 years. 2005, 2006 we had two consecutive years of increase in violent crime. And at the time there were dire warnings that we were headed back to the peaks of the early '90s. That did not come to pass, which was terrific and I'm not going to try to prognosticate here. But there are a number of reasons to think that we might be seeing a leveling off, maybe even a decrease.

But in 2007, so exactly 10 years ago, after these two consecutive increases, the attorney general at the time, Alberto Gonzales, issued a statement that I think captures pretty darn well exactly where we are today after two years of consecutive increases. I'm going to read it to you so I get it right. In a speech, he said, "In general it doesn't appear that the current data reveal nationwide trends. Rather they show local increases in certain communities. Each community is facing different circumstances and in many places violent crime continues to decrease."...

Jim Parsons: Yes, there's been this average aggregate increase, but in 68 percent of places, either the crime rate stayed the same or it went down.  So if you're thinking about making national policy, about making national policy decisions based on these crime rates, and if you have the theory that being more punitive or reacting to increasing crime is going to improve the situation, then that would not apply in two-thirds of places.  You'll be making a decision and trying to fix something that was not broken — or at least the trend suggests that things are not getting more dangerous — in two-thirds of places....

David Kennedy: ...[I]n all big cities ... and in lots and lots and lots of other cities there are particular communities that have — while they've come down usually from the worst years of the 1990s — people who are living in unconscionable conditions of persistent violence, trauma, and fear.  We as a nation have taken that as normal and so when things change, we focus on the change.  The scandal is what's normal.  And in this moment where we're debating these small changes and the national homicide rate had come down to between four and five per 100,000 and is now edging back up toward five.  There are communities all over the country where especially young men of color are experiencing persistent homicide rates of over 500 per 100,000 year after year after year after year. That's the story, and everything we know about the increases are that they are in those same places, those same communities, those same people.  This is not reaching out into different demographics. It's not reaching out into different communities. It's not reaching out into places that have not experienced this problem. It’s worsening among the people and places that have been enduring this forever.

November 16, 2017 in National and State Crime Data, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (1)