Wednesday, November 30, 2016

Two new headlines from the same paper highlighting (inevitable?) sentencing disparities

As I opened my Google News feed and turned to my sentencing section, these two headlines from the Washington Post jumped out at me:

Here are some key passages from each piece. First, the latest on serial/mass rapist Darren Sharper:

Former NFL star Darren Sharper was sentenced to 20 years in prison on Tuesday for drugging and raping two women in Los Angeles.  The sentence came as part of a plea deal that saw Sharper sentenced to 18 years in prison in Louisiana in August for drugging and raping up to 16 women in four states, including California and Louisiana, as well as Arizona and Nevada.  Sharper will serve the sentences simultaneously.

Tuesday marked the end of Sharper’s sentencing hearings, but the emotional trauma he inflicted upon the victims of his sexual assaults lives on.  “I can only imagine myself lying there like a vegetable while he took advantage of my body without my permission,” one of the victims said at Tuesday’s hearing (via the Los Angeles Times).  “I have lost every bit of self confidence I’ve ever had and am always in fear while alone. It doesn’t matter whether it’s day or night, I can see a guy and automatically in my head think, ‘What if this guy tries to rape me?’ ”

And now another dispatch from the never-ending federal drug war:

When Lori Clare Kavitz’s sons were 3 and 4 years old, ... her husband ... grabbed a gun and killed himself in front of her dad.... The aftermath was hard. “My emotional trauma and fear of not being able to provide for [my sons] led me to choices that I will always regret,” she says. Her regretful decision-making was not of an uncommon variety: After her husband’s death, she got involved with the wrong guy. He started dealing meth from their home, and when he was arrested, the state went after her, too, casting her as his assistant and charging her with conspiracy to distribute meth.

The man who sold them the meth cooperated with prosecutors, was sentenced to 14 years in prison, and is now out. Her boyfriend got 20 years. Lori Kavitz got 24 years. “She kept her mouth shut, didn’t say anything,” her son, Collin, tells the Watch. “He opened his mouth and tried to pin it all on her.”

Kavitz hasn’t seen her two sons in more than a decade because it’s too expensive for them to travel more than a thousand miles to visit her in prison in a different state. “I have 3 grandchildren that I have never met as I am serving my time in Florida and I am from Iowa. Too far for young struggling families to travel,” Kavitz writes. She’s one of thousands of nonviolent drug offenders hoping to have their sentences commuted by President Obama before President-elect Donald Trump replaces him in office — less than two months from now.

November 30, 2016 in Offender Characteristics, Offense Characteristics | Permalink | Comments (2)

Tuesday, November 29, 2016

Making the case that the next Administration needs to demonstrate that "laws are not just for the little people"

Writing here in the National Review under the headline "A Memo for Attorney General Jeff Sessions," former Justice Department officials Robert Delahunty and John Yoo share some interesting advice for the likely next AG.  I recommend the lengthy piece in full, and here is just a taste:

Hillary Clinton’s alleged criminality was a centerpiece of the last election and may well have cost her the presidency. It was not very long ago that crowds at Trump rallies were chanting “Lock her up!” We can think of no earlier presidential contest in which a candidate’s alleged criminal wrongdoing was so central an issue in the voters’ decision-making. This is truly an unprecedented case.

Unless President Obama acts first to pardon Clinton, the task of balancing these considerations will be left to the new president and his attorney general. Our view is that President Trump should offer her a pardon. Just as with President Gerald Ford’s pardon of Richard Nixon, Clinton’s acceptance of that offer would be widely understood as a tacit admission, if not perhaps of proven criminal guilt, then at least of wrongdoing sufficient to justify prosecution. We think that the matter should rest there.

But even if that were to happen, there are, apparently, more ongoing criminal investigations into the affairs of the Clintons and their inner circle. The investigation that Comey suspended concerned Clinton’s use of a private server to transact governmental business involving classified materials. Media reports have indicated that there are no fewer than five other investigations under way. These include at least one investigation into whether the Clinton Foundation has committed financial crimes or been sullied by influence-peddling.

We believe that those investigations — which were begun under the Obama administration — should be pursued. And if in the end, the findings of those investigations justify bringing criminal charges against the vast network of Clinton helpers and aides, those charges should be brought and tried.... Trump is right to express a desire not to harm the Clintons: The criminal process should never be turned into a political vendetta or even appear to be one. But no one, and certainly not the powerful and politically connected, should be above the law — the Clintons included. Trump’s campaign pledges on that issue resonated with the American public. The law is not just for the little people, and the little people are watching....

Jeff Sessions will take the helm of a Justice Department that has been terribly compromised in other respects. He must act decisively to change its culture. Again, the Clinton “reverse Midas” touch — transforming gold into dross — was at work. Candidate Clinton publicly offered to retain Attorney General Lynch in office if she were elected, even while Lynch at the time was charged with overseeing criminal investigations into the Clinton e-mail and Foundation scandals. By not publicly declining that offer — in effect, a bribe — Lynch tainted the integrity of the investigations as well as the office of attorney general.

President Obama also undermined public confidence in the Justice Department. He maintained that he had learned of Clinton’s private server only when everyone else had. Yet later leaks revealed that he in fact had corresponded numerous times with Clinton through her off-the-record system. Obama also proclaimed Clinton not guilty of wrongdoing even while the investigation into the use of her private server was still open....

These incidents came towards the end of an eight-year period in which the honor of the Justice Department had been badly tarnished. Much of the damage occurred during the five-year stint of former attorney general Eric Holder, the first and only attorney general to be held in contempt of Congress. (Holder’s conduct was so egregious that even most House Democrats declined to vote against the contempt resolution.) Under Holder, the DOJ became thoroughly politicized, taking positions that were, frankly, absurd — on legal issues such as congressional voting representation for the District of Columbia, presidential recess-appointment power, or the War Powers Resolution. Holder’s Justice Department brought cases not on their legal merits but in order to target the administration’s perceived political or ideological opponents....

This election was about the place of law in American public life. The voters were rightly repelled by the performance of public figures, above all Hillary Clinton and her entourage, who acted as if they were above the law. Voters resented President Obama’s chronic refusal to enforce the law — whether in health care or immigration — when he found that it did not suit his political purposes. They seem to have forgiven Donald Trump for his alleged manipulation of the tax code because, even if dodgy, his actions were not illegal.

As president, Donald Trump owes it to his voters and to the American people as a whole to restore the public’s trust in its government. He must repair the contract between the people and its agents that his rival and his predecessor have shattered. And Attorney General Jeff Sessions needs to be a strong and stalwart presence at his right hand as the new president makes this happen.

November 29, 2016 in Criminal justice in the Trump Administration, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (19)

"Why Trump needs to roll back criminal penalties for noncriminal conduct"

The title of this post is the headline of this notable commentary authored by Ronald Lampard, the director of the Criminal Justice Reform Task Force at the American Legislative Exchange Council (ALEC). Here are excerpts:

Unauthorized use of Smokey the Bear's image could land an offender in prison. So can unauthorized use of the slogan "Give a Hoot, Don't Pollute." While one may think the government would never initiate a criminal prosecution for either of these two "criminal" acts, there have been numerous examples of individuals being prosecuted under federal law for conduct that should not be criminalized.

For example, Eddie Anderson of Idaho took his son camping in the wilderness, searching for arrowheads. They didn't find any, but they were searching on federal land, which is prohibited by the Archaeological Resources Protection Act of 1979.  They both faced a felony charge, punishable by up to two years' imprisonment before they pleaded guilty to a misdemeanor and were fined $1,500 each and placed on probation for a year.

Some of these criminal offenses are contained in federal statutes, which prescribe an estimated 4,500 crimes, according to a study by retired Louisiana State University law professor John Baker.  To help put that number in perspective, the Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting.  Around the turn of the 20th century, the number of federal criminal statutes was as low as dozens. Essentially, over the last hundred years, federal statutes carrying criminal penalties have grown at an exponential rate.

The number of criminal statutes — laws passed by both Houses of Congress and signed into law by the president — is dwarfed by the number of regulations carrying criminal penalties. The total number of these regulations is difficult to count, however, it is estimated to number roughly 300,000. Perhaps most disturbingly, these "criminal regulations" are written by unelected bureaucrats, yet still carry the force of law.

In order to stem the explosion of criminal regulations, President-elect Trump can begin the process of removing said regulations.  Trump says in his first 100 days he wants to see two regulations removed for every one regulation created.  Since these regulations were largely written by unelected bureaucrats who work for the executive branch, the Trump administration could start immediately....

Certainly, some of these regulations ought to deter certain conduct. However, this can be accomplished by making the penalty civil or administrative....  As John Malcolm at the Heritage Foundation said, "There is a unique stigma that goes with being branded a criminal. Not only can you lose your liberty and certain civil rights, but you lose your reputation — an intangible yet invaluable commodity … that once damaged can be nearly impossible to repair.  In addition to standard penalties … a series of burdensome collateral consequences that are often imposed by … federal laws can follow an individual for life."

The federal government should proscribe criminal penalties only for conduct that is inherently wrong in order to protect public safety.  Criminal statutes serve a crucial purpose in preserving law and order and establishing the rule of law.  However, preserving law and order need not come at the expense of criminalizing conduct such as nursing a woodpecker back to health or shipping undersized lobsters in plastic bags instead of cardboard boxes.

Trump has a tremendous opportunity to reduce the number of actions criminalized by federal law. Such action would serve all Americans well and would be a great victory for both law and order and individual liberty.

November 29, 2016 in Criminal justice in the Trump Administration, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6)

Saturday, November 26, 2016

Mississippi prosecutor to argue old Facebook post helps justify LWOP sentence for juve getaway driver

This local article about a forthcoming sentencing in a Mississippi state case, headlined "Facebook post to be used in sentencing," strikes me as a disconcerting example of the equivocal evidence some prosecutors will highlight in an effort to secure the most extreme of prison sentences even for offenders who seem to be anything but the most extreme of criminals. Here are the details:

Prosecutors will use a Facebook post from 2010 when Gerome Moore was 13 showing him in possession of a handgun and "arguably" displaying gang signs to try to show Moore should be sentenced to life without parole in the January 2015 shooting death of Carolyn Temple in Belhaven.  Moore was convicted of capital murder in September, but his sentencing is on hold. A capital murder conviction had meant a mandatory life sentence without the possibility of parole, but a 2012 Supreme Court ruling said judges must consider the unique circumstances of each juvenile offender....

Moore was 17 at the time of the crime. He didn't shoot Temple, but his gun was used. He and at least two others were driving around that evening looking for someone to rob. Prosecutors say they followed Temple's vehicle, a Mercedes, to her boyfriend's house in Belhaven. Once she got out her car and went to the curb to retrieve her boyfriend's garbage can, two of the individuals tried to take her purse. She resisted and one of them shot her. Prosecutors believe Moore stayed in the car and was the getaway driver, although he provided the weapon.

In court filings, Assistant District Attorney Randy Harris said, "The cumulative resume of Gerome Moore qualifies him for that exact sentence of life without parole." Harris said Moore's unwillingness to abide by the decent standards of society and to abide by the criminal laws began long Temple's shooting. In addition to the Facebook post, by the time Moore was 17, he would tell investigators he never went riding without his gun, according to Harris. Harris also talked about other crimes Moore was involved in as well as escaping from the Hinds County Detention Center after his arrest. He was later recaptured.

"Truth is that Moore was two months shy of attaining 18 years of age when this capital murder was perpetrated," Harris said. "Had the crime happened merely two months later, this discussion of the propriety of life without parole would not even be taking place as there would be no argument that without parole was an appropriate and legislatively approved sentence."

Moore's attorney, Aafram Sellers, argues his client shouldn't receive a sentence of life without parole. "Clearly, a child who did not actually kill or intend to kill anyone will not be among the uncommon and rare juvenile homicide offenders who might permissibly receive the state's harshest prison sentence," Sellers said.

Sellers said punishment of life in prison without parole would be disproportionate to the sentence of the shooter in the case, Antwain Dukes, who received a sentence of 25 years to serve.

To review, after a robbery went bad and resulted in the shooting of the victim, the robber who actually killed the victim received a sentence of 25 years, but Mississippi prosecutors now want the robber who only sat in the car during the shooting to receive an LWOP sentence.  And Mississippi prosecutors are citing to a Facebook post by the defendant at age 13 when arguing an LWOP sentence for the juvenile getaway driver is justified.  Hmmm.

November 26, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Tuesday, November 22, 2016

"Trump will not pursue charges against Clinton, aide says"

The title of this post is the headline of this new FoxNews piece, which reports these details:

President-elect Donald Trump will not pursue charges against Hillary Clinton relating to the Clinton foundation or the former secretary of state’s use of a private email server, former Trump campaign manager Kellyanne Conway said Tuesday.

In an interview with MSNBC’s Morning Joe, Conway said that while Clinton “has to face the fact that a majority of Americans don’t find her to be honest and trustworthy,” it would be a good thing if Trump can “help her heal.” "I think when the President-elect, who's also the head of your party…tells you before he's even inaugurated he doesn't wish to pursue these charges, it sends a very strong message, tone, and content,” she said.

The move is a significant break from Trump’s campaign rhetoric, which included a warning that if he were president he’d get his attorney general to appoint a special prosecutor to investigate her behavior. In the second presidential debate he quipped to Clinton that if he was president: “you’d be in jail.” Cries of “lock her up” were a common feature at Trump’s campaign rallies....

Trump's decision not to pursue charges against Clinton would not prevent congressional Republicans from opening investigations and referring them to the Justice Department for charges. Trump expanded on his decision at a meeting with reporters at the New York Times Tuesday afternoon, telling them "I think it would be very very divisive for the country" to prosecute the Clintons, although he hadn't taken it off the table entirely.

Though I am 99.9% certain nobody will fully understand the full basis for my first two reactions here, I will share them anyway: (1) I am a tiny bit disappointed, and (2) I hope congressional Republicans will at least do some investigation into the deleted emails and/or into pay-to-play with the Clinton Foundation while Hillary Clinton was serving as Secretary of State. 

UPDATE: Kent over at Crime & Consequences has this post on this topic under the title "Amnesty for Hillary."

November 22, 2016 in Campaign 2016 and sentencing issues, Celebrity sentencings, Criminal justice in the Trump Administration, Offense Characteristics, Who Sentences? | Permalink | Comments (20)

Tuesday, November 15, 2016

Some sentencing question after Georgia jury verdicts of guiltly on all counts of murder, child cruelty and sexting for Justin Ross Harris

9859581_GA horribly awful (and high-profile and very interesting) state criminal case resulted yesterday in a jury verdict of guilt on all counts.  This new CNN article, headlined ""Jury finds Justin Ross Harris guilty of murder in son's hot car death," provides some details about the case that has prompted some sentencing questions for me.  Here are excerpts (with emphasis added on points that prompt follow-up sentencing questions):

A jury in Georgia on Monday found Justin Ross Harris guilty of murder in the 2014 death of his 22-month-old son, Cooper. Harris, 35, was accused of intentionally locking Cooper inside a hot car for seven hours. On that same day, Harris was sexting with six women, including one minor, according to phone records.

In addition to three counts of murder, Harris was found guilty of two counts of cruelty to children for Cooper's death, and guilty of three counts relating to his electronic exchanges of lewd material with two underage girls.  "This is one of those occasions where actions speak louder than words," Cobb County Assistant District Attorney Chuck Boring said after the verdict. "He has malice in his heart, absolutely."

The trial, which spanned almost five weeks, was moved to the Georgia coastal town of Brunswick from Cobb County, outside Atlanta, after intense pretrial publicity. It was briefly interrupted by Hurricane Matthew. The Glynn County jury of six men and six women deliberated for 21 hours over four days.  Jurors considered the testimony of 70 witnesses and 1,150 pieces of evidence, including the Hyundai Tucson in which Cooper died in a suburban Atlanta parking lot.

Justin Ross Harris waived his right to testify in his own defense. Cobb County prosecutors argued that Harris intentionally locked Cooper inside his car on a hot summer 2014 day because he wanted to be free of his family responsibilities. Harris' lawyers claimed the boy's death was a tragic accident brought about by a lapse in memory. 

It was June 18, 2014, when Harris, then 33, strapped his son into a rear-facing car seat and drove from their Marietta, Georgia, home to Chick-fil-A for breakfast, then to The Home Depot corporate headquarters, where he worked. Instead of dropping Cooper off at day care, testimony revealed Harris left him in the car all day while he was at work.  Sometime after 4 p.m. that day, as Harris drove to a nearby theater to see a movie, he noticed his son was still in the car. He pulled into a shopping center parking lot and pulled Cooper's lifeless body from the SUV. Witnesses said he appeared distraught and was screaming. "'I love my son and all, but we both need escapes.' Those words were uttered 10 minutes before this defendant, with a selfish abandon and malignant heart, did exactly that," said Boring in his closing argument.

The prosecution argued that Harris could see his son sitting in his car seat in the SUV. "If this child was visible in that car that is not a failure in memory systems," Boring argued. "Cooper would have been visible to anyone inside that car.  Flat out."  If Cooper was visible, Boring said, "the defendant is guilty of all counts."  After the verdict, jurors told the prosecution that the evidence weighed heavily in their decision, Boring said.

Digital evidence showed that on the day his son died, Harris exchanged sexual messages and photos with six women, including one minor. State witnesses testified that Harris lived what prosecutors described as a "double life."  To his wife, family, friends and co-workers, Harris was seen as a loving father and husband. But unbeknownst to them, Harris engaged in online sexual communication with multiple women, including two underage girls, had extramarital sexual encounters in public places and paid for sex with a prostitute.

Harris' defense maintained that his sexual behavior had nothing to do with Cooper's death. "The state wants to bury him in this filth and dirt of his own making, so that you will believe he is so immoral, he is so reprehensible that he can do exactly this," said defense attorney H. Maddox Kilgore during his closing argument.  Kilgore argued that Cobb County police investigators focused only on matters that fit the state's theory and ignored all the evidence that pointed to an accident. "You have been misled throughout this trial," Kilgore told jurors.  The defense lawyer continued to maintain his client's innocence after the verdict. He said he plans to appeal the verdict. "When an innocent person is convicted there's been some breakdowns in the system and that's what happened here," Kilgore told reporters outside the courthouse. "From the moment we met Ross Harris we've never, ever once wavered in our absolute belief that he is not guilty of what he's just been convicted of."

The defense's key witness was Harris' ex-wife and Cooper's mother, Leanna Taylor. "Cooper was the sweetest little boy. He had so much life in him. He was everything to me," Taylor recalled, as she seemed to fight through tears. For two days, Taylor told jurors private details of her married life with Harris, saying they had intimacy problems and recounting Harris' struggles with pornography.  Marital struggles aside, Taylor described Harris as a "very involved" parent who loved their son. In her mind, she said, the only possible explanation was that Harris "forgot" Cooper and accidentally left him in the car.  Boring said it did not matter that Taylor declined to speak with the prosecutor's office and testified for the defense. "As far as proving the case we did not need her," he told CNN.

Harris is expected to be sentenced December 5. He could face life without parole, though Boring said the prosecution will speak with the family to determine what kind of sentence to ask for.

Especially for sentencing scholars and advocates like me who worry a lot about about white criminals being treated more leniently than similarly-situated or less culpable minority criminals, I have three follow-up sentencing questions based on this case and its forthcoming sentencing in a Georgia state court:

1.  Should we be troubled that the local prosecutor in this case apparently exercised his discretion not to pursue capital punishment in a case in which the white defendant was apparently guilty of intentionally boiling his 22-month son to death?

2.  Should we be troubled that Georgia sentencing provisions, if I am understanding the law properly based on this "'Truth in Sentencing' in Georgia" documentrequires a mandatory LWOP for an adult offender who commits two armed robberies, but only requires a mandatory 25-life for intentionally boiling a toddler to death?

3.  Should we be troubled that the local prosecutor in this case, who already strikes me as unduly lenient for not even pursuing a capital charge, is now apparently willing (after a jury conviction on all counts) to exercise his discretion to seek a more lenient sentence from the sentencing judge based on the sentencing desires of the (white) wife of the murderer?

November 15, 2016 in Celebrity sentencings, Death Penalty Reforms, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9)

Saturday, November 12, 2016

"How Prosecutors and Defense Attorneys Differ in Their Use of Neuroscience Evidence"

The title of this post is the title of this notable article authored by Deborah Denno now available via SSRN. Here is the abstract:

Much of the public debate surrounding the intersection of neuroscience and criminal law is based on assumptions about how prosecutors and defense attorneys differ in their use of neuroscience evidence.  According to some, the defense’s use of neuroscience evidence will abdicate criminals of all responsibility, while the prosecution’s use of that same evidence will unfairly punish the most vulnerable defendants as unfixable future dangers to society.

This “double-edged sword” view of neuroscience evidence demonstrates the concern that the same information about the defendant can either be mitigating or aggravating depending on who is raising it.  Yet empirical assessments of legal decisions reveal a far more nuanced reality, showing that the public beliefs about the impact of neuroscience on the criminal law can often be wrong.

This Article examines how courts respond to neuroscience evidence in capital cases when the defense presents it to argue that the defendant’s mental state at the time of the crime was below the given legal requisite due to some neurologic or cognitive deficiency.  Relying on data from my “Neuroscience Study” (which consists of all criminal law cases that addressed neuroscience evidence from 1992–2012), I examine thirty-nine capital cases in which the defense attempted to use neuroscience evidence to dismiss or diminish the defendant’s level of intent either at the guilt phase or the penalty phase, along with a corresponding rebuttal or counterargument from the prosecution.  I use a range of case examples to show how courts’ differing perspectives on what constitutes mitigating and aggravating evidence suggests that the “double-edged sword” framework is simplistic and, at times, misleading.

This Article concludes that the lack of consistency and guidance among lower mens rea cases seemingly hinders a more effective application of neuroscience evidence in intent determinations.  To remedy this problem, this Article endorses the “reasonable jurist” framework, which recognizes the value of case-by-case determinations and provides courts with a more realistic lens through which to assess the great variety of neuroscience factors.

November 12, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, November 10, 2016

Reading closely the main criminal justice elements of "Donald Trump’s Contract with the American Voter"

I just had a chance for the first time to review closely this two-page document entitled "Donald Trump's Contract with the American Voter." I did not read this document whenever it was released during the campaign, but now I see these notable promises in the criminal justice arena from page two of this document (with my emphasis added):

I will work with Congress to introduce the following broader legislative measures and fight for their passage within the first 100 days of my Administration:...

End Illegal Immigration Act

Fully-funds the construction of a wall on our southern border with the full understanding that the country of Mexico will be reimbursing the United States for the full cost of such wall; establishes a two-year mandatory minimum federal prison sentence for illegally re-entering the U.S. after a previous deportation, and a five-year mandatory minimum federal prison sentence for illegally re-entering for those with felony convictions, multiple misdemeanor convictions or two or more prior deportations; also reforms visa rules to enhance penalties for overstaying and to ensure open jobs are offered to American workers first.

Restoring Community Safety Act

Reduces surging crime, drugs and violence by creating a task force on violent crime and increasing funding for programs that train and assist local police; increases resources for federal law enforcement agencies and federal prosecutors to dismantle criminal gangs and put violent offenders behind bars.

Because I generally think that mandatory minimum sentencing provisions often do more harm than good, I am troubled to see emphasis on such provisions in the first passage I have quoted. At the same time because I generally think out federal criminal justice system should be much more focused on violent crime and much less focused on nonviolent crime, I am actually a bit encouraged to see an particular emphasis on violent crime in the articulation of priorities in the second passage.

November 10, 2016 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (3)

Wednesday, November 09, 2016

Could "mens rea" federal statutory reform become a priority for the next GOP Congress and for a Trump Administration?

The question in the title of this post is prompted by the fact that nearly all GOP members of Congress who have discussed an interest in federal criminal justice reform, as well as many right-leaning policy advocates and advocacy groups, have urged so-called federal "mens rea" reform.  An articulation of these realities finds effective expression in this September 2015 "Legal Memorandum" authored by John Macolm, the Director of the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation, under the titled "The Pressing Need for Mens Rea Reform."  I blogged this document when it was released 14 months ago, and highlight its abstract and "Key Points":

Abstract

One of the greatest safeguards against overcriminalization — the misuse and overuse of criminal laws and penalties to address societal problems — is ensuring that there is an adequate mens rea requirement in criminal laws.  Sentencing reform addresses how long people should serve once convicted, but mens rea reform addresses those who never should have been convicted in the first place: morally blameless people who unwittingly commit acts that turn out to be crimes and are prosecuted for those offenses rather than having the harms they caused addressed through the civil justice system.  Not only are their lives adversely affected, perhaps irreparably, but the public’s respect for the fairness and integrity of our criminal justice system is diminished.  That is something that should concern everyone.

Key Points

1. Nearly 5,000 federal criminal statutes are scattered throughout the U.S. Code, and an estimated 300,000 or more criminal regulatory offenses are buried in the Code of Federal Regulations.

2 Not even Congress or the Department of Justice knows precisely how many criminal laws and regulations currently exist.  Because many of them lack adequate (or even any) mens rea standards, innocent mistakes or accidents can become crimes.

3. Congress should pass a default mens rea provision that would apply to crimes in which no mens rea has been provided.  If a mens rea requirement is missing from a criminal statute or regulation, a default standard should automatically be inserted, unless Congress makes it clear in the statute itself that it intended to create a strict liability offense.

Notably, as I lamented in this post in January 2016, I have long feared that Democratic opposition toward GOP eagerness for mens rea reform was a problematic impediment to any bipartisan federal statutory sentencing getting to Prez Obama's desk before he left the oval office. But the Election 2016 results mean that the next GOP Congress now need not have to worry too much about opposition to mens rea reform from Democratic members of Congress and also probably that such reform will have the support of our next President.

Of course, very few non-lawyers even understand what the term mens rea means, and I am certain that those who voted for Republican federal elected officials did not have mens rea reform in mind when voting. (Indeed, ironically, mens rea reform would generally make it harder to prosecute the kinds of crimes that has led to Hillary Clinton being investigated by the FBI.) Thus, I doubt anyone other than federal criminal lawyers and think-tank types would even notice if mens rea reform is or isn't part of the agenda of the next Congress and Administration. But I hope it is.

Some recent and older related posts:

November 9, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, November 08, 2016

Is the likely federal sentencing guideline range for "Bridgegate" defendants convicted last week at least 3 to 4 years in federal prison?

As noted in this prior post, late last week a federal jury returned guilty verdicts against Bridget Anne Kelly, the former deputy chief of staff to NJ Gov Chris Christie, and Bill Baroni, the former deputy executive director of the Port Authority of New York and New Jersey on seven federal criminal charges stemming from the so-called "Bridgegate" scandal.  This Wikipedia page provides lots of background on the scandal, and this lengthy New York Times article about the convictions provides these hints about the federal sentencing issues to now be debated as a February sentencing for Ms. Kelly and Mr. Baroni looms:

A federal jury convicted two former allies of Gov. Chris Christie on Friday of all charges stemming from a bizarre scheme to close access lanes at the George Washington Bridge to punish a New Jersey mayor who declined to endorse the governor’s re-election.  Though only the two defendants, Bridget Anne Kelly and Bill Baroni, were tried in the so-called Bridgegate case, the scandal surrounding the lane closings in September 2013 left Mr. Christie deeply wounded....

David Wildstein, who was installed as the governor’s enforcer at the Port Authority of New York and New Jersey, which operates the bridge, pleaded guilty to orchestrating the lane closings and became the prosecution’s chief witness....

Facing about 50 reporters and television cameras outside the federal courthouse here on Friday, the United States attorney for New Jersey, Paul J. Fishman, said that his office brought charges against only the people it believed a jury would find guilty beyond a reasonable doubt.  There was substantial documentary evidence, he said, to corroborate Mr. Wildstein’s testimony about Ms. Kelly and Mr. Baroni, once Mr. Christie’s top staff appointee at the Port Authority....

The convictions carry a maximum sentence of 20 years in prison, but under federal guidelines, Ms. Kelly and Mr. Baroni are likely to get far less time.  Mr. Fishman said Friday that under federal guidelines, Mr. Wildstein would be sentenced to 20 to 27 months in prison, but that he was likely to get “credit” from the judge for his cooperation. Prosecutors were likely to recommend longer terms for Mr. Baroni and Ms. Kelly, Mr. Fishman said, because they did not accept responsibility for their crimes and because prosecutors believe that they did not testify truthfully.

Judge Susan D. Wigenton set sentencing for Feb. 21.

I found at this link a copy of the plea agreement in which Mr. Wildstein agreed to plead guilty to two counts and to have his guideline calculation add up to an offense level 16 (including a three-point downward adjustment for acceptance of responsibility).  Such an offense level for a first offender accounts for his applicable guideline range being set at 21-27 months before he gets any further cooperation credit for his substantial assistance in the prosecution of Ms. Kelly and Mr. Baroni.  Assuming the same basic guideline calculations for Mr. Baroni and Ms. Kelly, but now without any benefit for acceptance of responsibility AND with a two-point enhancement for obstruction of justice based on testifying falsely, it seem they are facing an offense level of 21 (at least), and thus looking at an advisory guideline range of 37-46 months (at the lowest).

I can certainly imagine all sorts of arguments that could possibly be made by federal prosecutors to try to drive up the applicable guideline range further, but I suspect that USA Paul Fishman and his line prosecutors will be content to argue for a federal prison sentence in the range of three to four years.  I would also expect that defense attorneys for Ms. Kelly and Mr. Baroni will look for ways to contest any guideline range enhancement and will also advocate forcefully under the provisions of 18 USC 3553(a) for a sentence below whatever the guideline range is calculated to be. 

Because I am going to be turning this real case into a real-world teaching exercise in my sentencing class, I would be grateful to have informed (or even uniformed) folks provide any insights or ideas about how they expect the sentencing for Ms. Kelly and Mr. Baroni and Mr. Wildstein to play out in the week ahead.

Prior related post:

November 8, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (5)

Sunday, November 06, 2016

Another big NYC white-collar sentencing produces another way-below-guideline sentence

This USA Today article, headlined "Wall Street fraud sentencing prompts tears and debate," provides the highlights of a high-profile federal fraud sentencing that took place in Manhattan on this past Friday. Here are some of the details:

It was an emotional federal court sentencing, with the future of an Ivy League-educated former private equity executive hanging in the scales of justice.  

The prosecution said Andrew Caspersen, a scion of a wealthy business family, should get as much as a 15-year-plus prison sentence for executing a Ponzi-like scam that collectively bilked about a dozen of his clients, family members, and his investment company out of roughly $46 million.  The defense said Caspersen never intended to steal and betray. Asking for leniency, his attorney, Paul Shechtman presented evidence to show the 40-year-old father of two had been gripped by a pathological gambling addiction.

On the bench in the 14th-floor Manhattan courtroom sat U.S. District Judge Jed Rakoff, a renowned legal independent and author of a recent essay that almost seemed to foreshadow the proceeding.  "Distinctions of intent frequently determine, as a matter of law, the difference between going to prison and going free," Rakoff wrote in The New York Review of Books in his examination of neuroscience and the law.  What ensued was a nearly three-hour debate over whether and how much gambling addiction should factor in the sentence — complete with references to "The Gambler," a short novel by Fyodor Dostoyevsky.

By the end, Caspersen and his wife, Christina, wept as they held one another in the courtroom.  Shechtman brushed away tears of his own.  And Manhattan U.S. Attorney Preet Bharara issued a statement that noted Caspersen had been sentenced — but made no comment on the punishment.

The prosecution attacked the gambling addiction defense from the start. Assistant U.S. Attorney Christine Magdo argued that 2014-2016 scam run by the Princeton University and Harvard Law School graduate had been carefully calculated. In a sentencing memo to the court, she noted that Caspersen fooled his roughly dozen victims by incorporating sham entities with names similar to real private equity firms.

The victims lost millions.  Some, investment professionals themselves, declined to present victim statements by name, fearing the reputational loss of being fooled.  Magdo added that Caspersen used much of the scam proceeds to pay the mortgage and two home equity credit lines on a Manhattan apartment, as well as a $3 million home in Bronxville, a wealthy suburb of New York City....

Shechtman submitted dozens of support letters to the court, including pleas for leniency from Caspersen's wife, friends, and even the doorman of his Manhattan co-op. The defense also turned to scientific and financial trading experts.  Dr. Marc Potenza, a Yale University School of Medicine psychiatry professor and mental health expert on addiction, examined Caspersen and reviewed his health records in preparation for testifying at the sentencing hearing. "Mr. Caspersen suffered from a severe gambling disorder, a mental illness, and there is little doubt that it contributed substantially to him losing his own money and seek money by fraud from others to continue on the same destructive path," Potenza wrote in a letter to the court....

Citing the experts' conclusions, Shechtman urged Rakoff to weigh the "tragic dimension" of Caspersen's gambling addiction.... Caspersen fought back tears as he addressed the court before being sentenced. "I have committed serious crimes of fraud, and have no one to blame but myself," he said. "I stand before you asking for mercy."...

After more than an hour of testimony and questioning of Potenza, Rakoff said he deemed it "more likely than not" that gambling addiction existed and could be a mitigating factor. Still, he stressed it must be weighed with other factors in the case. "It was a substantial fraud," said the judge. "It was a fraud that involved the deception of people who had a lot of faith in the defendant."

Ultimately, Rakoff sentenced Caspersen to four years in prison, followed by three years of supervised release, and nearly $28 million in restitution. "No purpose would be served by having him rot in prison for years on end," said the judge. He characterized federal sentencing guidelines that would allow the far longer sentence sought by prosecutors as "absurd." And, referring to the likelihood that some might question the leniency, Rakoff said outsiders didn't know all the facts of the case.

I cannot find any indication that Judge Rakoff has or plans to write up his sentencing conclusions in a formal opinion, but I sincerely hope he does.  For consistent and cogent sentencing even after Booker made the guidelines advisory, it is critical in my view not only for federal district judges to consider thoughtfully all the 18 USC 3553(a) sentencing factors, but also for them to produce written opinions to explain how they weighed those factors in high-profile cases in which they significantly deviate from the ranges suggested by the guidelines.

November 6, 2016 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, White-collar sentencing, Who Sentences? | Permalink | Comments (2)

Friday, November 04, 2016

"Bridgegate" now a federal sentencing story after two former New Jersey officials convicted on all federal counts after lengthy jury deliberations

As regular readers know, I tend to avoid discussing high-profile criminal prosecutions unless and until they become interesting or important sentencing stories.  And then, perhaps problematically, once they become notable sentencing stories, I tend to discuss the cases too much.  These tendencies are going to be on full display now that the long-running so-called "Bridgegate" scandal this morning because a great sentencing story. This CNN piece explains, while concluding with an accurate and ridiculous sentencing point:

Two former officials linked to New Jersey Gov. Chris Christie's office were found guilty on all charges Friday in connection with the closure of lanes in 2013 on the George Washington Bridge in an act of alleged political retribution, the fallout for which has come to be known as Bridgegate. The news comes after nearly five days of deliberations from the jury.

Bridget Anne Kelly, the former deputy chief of staff to Christie, and Bill Baroni, the former deputy executive director of the Port Authority of New York and New Jersey, both faced seven counts of various charges including conspiracy, fraud, and civil rights deprivation.

The verdict is another setback in Christie's political career, following a controversy that spans nearly three years and put a significant dent in the Garden State Republican's presidential ambitions. Christie is heading planning behind Republican nominee Donald Trump's transition if he wins the presidency. CNN has reached out to the Trump campaign for comment and not yet gotten a response.

Prosecutors allege that the lane closures on the George Washington Bridge were part of a deliberate effort to punish the Democratic mayor of Fort Lee, New Jersey, who did not endorse the Republican incumbent Christie in his 2013 re-election bid.  Emails and text messages released in January of 2014 form the basis of the charges. In one particularly damning email, Kelly told former Port Authority official David Wildstein, "Time for some traffic problems in Fort Lee."  Kelly later said her messages contained "sarcasm and humor," and she claims that she had told Christie about traffic problems resulting from a study a day prior to sending the email....

Kelly and Baroni each face a maximum sentence of 86 years, according to Paul Fishman, the federal prosecutor in the case.

Though I am disinclined to accuse federal prosecutors of "overcharging" unless and until I know all the facts, the simple fact that the conviction on all counts here even presents the possibility of a sentence of 86 years in prison leads me to be more than a bit suspicious of how the feds approached this case. That concern aside, I feel pretty certain predicting (1) that now-convicted federal felons Bridget Anne Kelly and Bill Baroni are unlikely to be sentences to more than a few years in prison, and (2) that federal prosecutors are going to be inclined to ask for a pretty lengthy prison sentence for these two because they had the temerity to contest their guilt and put the feds through the bother of a lengthy trial, and (3) that a low-profile, high-impact legal question for Kelly and Baroni is whether they will be given bail pending what could be very lengthy appeals of their multiple convictions.

I have not followed this case closely enough to even begin to figure out what the advisory guideline calculations might look like in these cases, but I would love to hear from some informed folks about what they think Bridget Anne Kelly and Bill Baroni are now facing, formally or informally, as this long-running scandal becomes a fascinating federal sentencing case.

November 4, 2016 in Campaign 2016 and sentencing issues, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (9)

"If guilt is proven, should juries always convict?"

The title of this post is the headline of this very interesting new article appearing in my own local Columbus Dispatch.  Here is the context and commentary that follows the headline:

No one denied that Edwin Sobony II savagely beat his wife’s heroin supplier with a baseball bat when the man visited the couple’s Hamilton Township home in December. Sobony admitted to investigators that he did it after repeatedly begging the man to stay away.  At his trial in September on charges of felonious assault, his defense attorney told jurors that Sobony’s actions were “felonious as hell.”

Yet the attorney, Sam Shamansky, encouraged the jury to acquit his client anyway. “He assaulted him with this bat,” Shamansky said, holding the weapon aloft during his closing argument.  “And you say to yourself, ‘You know what, that’s OK. That’s what I would have done.’ Because no one can challenge that opinion. You can go back in that jury room and believe that and vote for it and nobody can touch you. That’s the beauty of the system. It prevents these kinds of prosecutions from ruining lives.”

Shamansky also told jurors that they could acquit by finding that Sobony acted in defense of himself and his family. But he acknowledged last week that, in case they rejected the self-defense claim, he was trying to persuade them that they could employ what is known as jury nullification to find his client not guilty.

Jury nullification occurs when jurors acquit a defendant, despite the prosecution proving its case beyond a reasonable doubt, because they believe the law is unjust or has been unjustly imposed.  It appeared to happen last week in Oregon, where a jury acquitted seven defendants who had armed themselves and occupied a national wildlife refuge during a 41-day standoff with federal authorities.

Shamansky’s arguments on behalf of Sobony didn’t work. The jury deliberated for less than three hours before finding the mail carrier guilty of one count of felonious assault. Sobony, 38, is scheduled to be sentenced Wednesday by Franklin County Common Pleas Judge Charles Schneider.

Not everyone agrees that nullifying a law is an appropriate option for juries. Ric Simmons, a professor of law at Ohio State University’s Moritz College of Law, said jurors take an oath to follow the law and return a conviction if the prosecution meets its burden of proof. “In my view, jurors are under a legal obligation to follow the law,” he said.

However, jurors can’t be punished for their decisions, regardless of their reasoning, and their verdicts can’t be appealed. “So jury nullification exists, and we can’t do anything about it,” said Simmons, a former prosecutor.

Others say jury nullification is a time-honored tradition in the United States and was seen by the Founding Fathers as a check on abuse or overreach by the government. It was used by pre-Civil War juries to acquit those charged with violating the Fugitive Slave Act. More recently, it’s been used to acquit those charged with what juries consider antiquated drug-possession laws.

“Jury nullification has played a huge role in the development of our laws,” said Clay S. Conrad, author of “Jury Nullification: The Evolution of a Doctrine.” “For instance, it’s why we have a range of charges for murder, from manslaughter to capital murder. Juries didn’t want everyone to get the death penalty.”

Conrad, a lawyer based in Houston, said police, prosecutors and judges shouldn’t be the only ones allowed to use discretion in how they apply the law. “If a jury believes the prosecution’s idea of justice is wrong, they should have every right to reflect that with their verdict,” he said. “I think the problem we have with getting more juries to nullify in cases where it is appropriate is because so many people are unwilling to challenge authority.”

The leading advocacy group for jury nullification is the Fully Informed Jury Association, a nonprofit organization founded in 1989 in Montana. The group works to educate the public about jury nullification and says that juries should be informed about it as part of jury instructions. “We’re trying to overcome a lack of information, but it’s more than that,” said Kirsten Tynan, the group’s executive director. “Jurors are almost always going to be misinformed. They’re told by the court that they must follow the law as it’s given to them. “We have to educate people that what they’re being told isn’t necessarily true.”

I got into a bit of a verbal fight with my friend and colleague Professor Ric Simmons about this issue just earlier this week (and thus I love seeing him quoted on this front).  Readers may not be too surprised to hear that I am generally a fan and supporter of jury nullification.  Indeed, I generally believe that juries should be instructed about their power and right to nullify, though I also believe that prosecutors should be able to explain to jurors why they think broad use of nullification powers could have an array of potentially harmful societal consequences.

In this setting and in many others dealing with jury trial rights and procedures, I suspect views are often influenced by one's broader perspectives on the operation of present (and future?) criminal justice systems (both personally and professionally).  I have long viewed US criminal justice systems as bloated and inefficient, and thus I have always been inclined to embrace the jury's role as a critical "democratic" check on the criminal justice work of legislative and executive branches. (The late Justice Scalia's writings in cases like Blakely and other jury-respecting rulings have reinforced and enhanced these perspectives in recent years.) My colleague Professor Simmons obviously takes a different view, and I suspect he will not be surprised to know that I believe his views are at least somewhat influenced by his own professional history before he became an academic.

November 4, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"The lock-’em-up mentality for white-collar crime is misguided"

The title of this post is the subheadline of this recent Economist piece, which reviews a couple notable new books about white-collar crimes and punishments. Here are excerpts:

One thing right-wing populists and left-wing progressives can agree on is that society is too soft on white-collar crime. Conservatives abandon their admiration for business when it comes to “crooked bankers”.  Left-wingers forget their qualms if locking up “corporate evil-doers”.  Hillary Clinton’s line that “there should be no bank too big to fail but no individual too big to jail” would go down equally well at a Donald Trump rally.

But is society really soft on corporate wrongdoing? And would locking up bankers and businessmen and throwing away the key really solve any problems?  Two new books try to inject reason and evidence into a discussion more commonly driven by emotion and hearsay: “Why They Do It: Inside the Mind of the White Collar Criminal” by Eugene Soltes, of Harvard Business School, and “Capital Offenses: Business Crime and Punishment in America’s Corporate Age” by Samuel Buell, the lead prosecutor in the Enron case, who now teaches at Duke University.

Messrs Soltes and Buell both demonstrate that America is getting tougher on business crime. Between 2002 and 2007 federal prosecutors convicted more than 200 chief executives, 50 chief financial officers and 120 vice-presidents. Those at the heart of two big corporate scandals in 2001 and 2002 received harsh treatment: Bernard Ebbers, WorldCom’s chief executive was sentenced to more than 20 years without the possibility of parole — the equivalent of a sentence for murder in many states — and Kenneth Lay, Enron’s former boss, died awaiting sentence.  Between 1996 and 2011 the mean fraud sentence in federal courts nearly doubled, from just over a year to almost two years, as the average sentence for all federal crimes dropped from 50 months to 43.

America is constantly giving way to the temptation to punish white-collar criminals more severely: the Sarbanes-Oxley act (2002) and the Dodd-Frank bill (2010) both include measures designed to punish corporate types more severely. Other countries are moving in the same direction.... The global war on white-collar crime is giving rise to a new global industry: advisers such as Wall Street Prison Consultants and Executive Prison Consultants specialise in helping white-collar criminals adjust to life behind bars.

Prosecutorial zeal does not always result in convictions, but that is because prosecutors face some difficult trade-offs — including respecting the rights of some of the world’s most unpopular people.... The DoJ could bring far more individual prosecutions. But most corporate crime is the result of collective action rather than individual wrongdoing — long chains of command that send (often half-understood) instructions, or corporate cultures that encourage individuals to take risky actions. The authorities have rightly adjusted to this reality by increasingly prosecuting companies rather than going after individual miscreants.

Prosecuting firms may not have the smack of justice that populists crave: you can’t imprison a company, let alone force it to do a humiliating “perp walk” — being paraded in handcuffs in public. And the people who end up paying the fines are shareholders rather than the executives or employees who actually engaged in the misconduct. But it saves the taxpayer a great deal of money: the DoJ routinely asks firms to investigate themselves on pain of more serious punishment if they fail to do so.  It also advances the cause of reform, if not retribution: companies are routinely required to fix their cultures and adjust their incentive systems.

Populists like to think that there is a bright line between right and wrong: overstep it and you should go directly to jail.  But a great deal of wealth-creation takes place in the grey area between what is legal and questionable.  Some of the world’s greatest business people have overstepped the mark. Bill Gates was hauled up before the authorities at Harvard University when he was a student for using computers without permission. Steve Jobs participated in backdating stock option-based compensation at Apple, including his own, in order to inflate the options’ value....

The strongest populist argument is about double standards: it is wrong to let the rich get away with a slap on the wrist while poor youths are put in prison for possessing an ounce of cocaine. Messrs Soltes and Buell have clearly demonstrated that the rich aren’t getting away with a slap.  But even if they were, this would argue for reforming criminal law for the poor rather than extending the lock-’em-up mentality to the rich.  Society should by all means punish white-collar criminals if they have obviously committed crimes and imposed harm.  But it should resist the temptation to criminalise new businesses testing the rules.  And it should certainly resist the temptation to single people out for harsh punishment simply because they are rich and successful.

A few recent related posts:

November 4, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, White-collar sentencing | Permalink | Comments (2)

Monday, October 31, 2016

"Defendant in U.S. opioid kickback case claims constitutional right to smoke pot"

The title of this post is the headline of this notable new argument about a notable motion filed in federal district court case. Here are the details:

A U.S. ex-pharmaceutical sales representative accused of paying kickbacks to induce doctors to write prescriptions for an opioid drug is asserting he has a constitutional right to continue smoking marijuana so he can remain clear-headed for his defense.

In a filing Friday, lawyers for Jeffrey Pearlman asked a federal judge for the U.S. District Court in Connecticut to modify his bail conditions so that he can continue using marijuana that was prescribed to him by a New Jersey doctor to help him kick his opioid addiction.  "Forcing him off the medical marijuana and forcing him to return to addictive opioids would impair his Sixth Amendment right to participate fully in his defense and his Fifth (Amendment) right to due process," his attorneys Michael Rosensaft and Scott Resnik of Katten Muchin Rosenman LLP wrote.

The novel request is one of only at least three such attempts in a federal court to permit the use of medical marijuana.  It is possibly the only motion of its kind to assert a Sixth Amendment defense that the failure to permit medical marijuana use could re-trigger an opioid addiction and impede a person's ability to participate in his own defense....

A variety of state laws have legalized marijuana for medicinal use, but federal law still prohibits it. The drug is classified as a Schedule I substance, meaning it is addictive and serves no medical purpose. Many opioids, by contrast, fall under Schedule II, meaning they are addictive, but have medical uses.

Pearlman, a former Insys Therapeutics, was charged criminally in September for allegedly arranging sham speaker programs designed to encourage medical professionals to write prescriptions for a fentanyl spray.  His lawyers say Pearlman became addicted to opioids used to treat severe back and leg pain and the drugs made him "foggy" and unable to think clearly.

After being prescribed marijuana in August, they said, his pain has subsided and he is able to "think more clearly."  Whether the judge will grant Pearlman's request remains to be seen.  Two defendants in other federal courts previously lost their bids to continue using medical marijuana, though the facts and circumstances in those cases were different.

In this case, the U.S. Attorney's Office has not opposed the request.  A spokesman for the office declined to elaborate further.

There are so many drug war ironies baked into this story, I am not sure I know where to start my fuzzy commentary on the highlights of this case. For now, I will be content to note the remarkable fact that the U.S. Attorney's Office's has here not opposed a request by a federal fraud defendant to be able to break federal drug laws while on bail.

October 31, 2016 in Marijuana Legalization in the States, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Saturday, October 29, 2016

SCOTUS takes up Booker/mandatory sentencing issue and two sex-offender collateral-consequences cases

I had a spectacular afternoon mostly off-line yesterday: I heard Sandy Levinson talk about his book on the Federalist Papers; I talked with my 1L students about a famous criminal case after an infamous disaster; I spoke at lengthy to a reporter about the prospects for federal criminal justice reform in 2017; I had great happy hours conversations with students, friend and family, followed by a spectacular burger at my favorite local gastropub; and I managed to stay awake for (most of) one of the all-time great modern World Series games.

What I did not manage to do until this morning, however, was remember that SCOTUS yesterday had a conference to consider new cases for its docket.  Helpfully, this SCOTUblog post reports on the five SCOTUS cert grants on the last Friday in October 2016, and three of the cases are sure to be worth sentencing fans' attention.  Here are the three grants as described by Amy Howe from SCOTUSblog, organized by me in order of "importance" for those most obsessed with modern sentencing systems: 

The facts of Dean v. United States read like a “true crime” novel, involving robberies of drug dealers in the Midwest. Levon Dean, the defendant in the case, was convicted under the Hobbs Act, a federal law that makes it a crime to “obstruct, delay, or affect commerce” through a robbery.  The justices today declined to review Dean’s challenge to his Hobbs Act convictions, but they agreed to weigh in on a separate question: the scope of a federal trial court’s discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c), which makes it a crime to use or carry a firearm during a crime of violence, in determining a sentence for the felony that serves as the basis for the Section 924(c) conviction.  Dean argued that the district court had the authority to impose a very short sentence — as little as one day — for his Hobbs Act convictions, to take into account the much longer sentence required by Section 924(c), but the lower courts disagreed.

Among the court’s other grants today, Packingham v. North Carolina is the case of Lester Packingham, a North Carolina man who became a registered sex offender after he was convicted, at the age of 21, of taking indecent liberties with a minor.  Six years after Packingham’s conviction, North Carolina enacted a law that made it a felony for registered sex offenders to access a variety of websites, from Facebook to The New York Times and YouTube. Packingham was convicted of violating this law after a police officer saw a Facebook post in which Packingham celebrated, and gave thanks to God for, the dismissal of a traffic ticket.  The justices today agreed to review Packingham’s contention that the law violates the First Amendment.

In Esquivel-Quintana v. Lynch, the justices will make another foray into an area of law known as “crimmigration” — the intersection of immigration and criminal law.  The petitioner in the case, Juan Esquivel-Quintana, was a lawful permanent resident of the United States in 2009, when he was charged with violating a California law that makes it a crime to have sexual relations with someone under the age of 18 when the age difference between the two people involved is more than three years; he had had consensual sex with his 16-year-old girlfriend when he was 20 and 21 years old.  The federal government then sought to remove Esquivel-Quintana from the United States on the ground that his conviction constituted the “aggravated felony” of “sexual abuse of a minor.”  The lower courts agreed with the federal government, but now the Supreme Court will decide.

October 29, 2016 in Collateral consequences, Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Wednesday, October 26, 2016

Has DOJ's "Smart on Crime" initiative had a big impact in federal white-collar sentencing outcomes in recent years?

It has now been more than full three years since then-Attorney General Eric Holder made his historic speech to the American Bar Association (reported here and here) about excessive use of incarceration in the United States.  In that speech, AG Holder announced the US Justice Department's "Smart on Crime" initiative while making the case that "too many Americans go to too many prisons for far too long and for no good law enforcement reason" and that "widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable." At the time, and subsequently as a result of officials' comments (including 2015 remarks by then AG Holder and 2016 statements by now AG Loretta Lynch and Deputy AG Sally Yates), much has been made about the impact of DOJ's "Smart on Crime" initiative on the case processing and sentencing of federal drug offenders.

But recently, as the question in the title of this post suggests, I have been thinking about, and wondering if there is a good way to assess, the possible impact of DOJ's "Smart on Crime" initiative on the case processing and sentencing of white-collar offenders.  Critically, as I have noted to a number of courts in a number of ways in a number of settings, DOJ's public "SMART on CRIME" materials uses a lot of language that applies to, and should impact, how non-violent white-collar offenders are sentenced.  For example, DOJ has stressed the importance of alternatives to incarceration for all non-violent offenders while advocating a "shifting away from our over-reliance on incarceration" to reflect the reality that "[f]or many non-violent, low-level offenses, prison may not be the most sensible method of punishment." And AG Holder's speech was not only focused on drug offenses or offenders when he emphasized excessive incarceration "comes with human and moral costs that are impossible to calculate," and when he stressed that "the judiciary [can] meet safety imperatives while avoiding incarceration in certain cases."

Notably, as some links above highlight, DOJ officials have in 2015 and 2016 documented and promoted how DOJ's "Smart on Crime" initiative has impacted the case processing and sentencing of federal drug offenders.  But, perhaps unsurprisingly in these political times, DOJ officials have not said a word (at least that I have seen) about how DOJ's "Smart on Crime" initiative might be impacting white-collar cases (or really any other non-drug cases).

Against that backdrop, I took another look this week at recent US Sentencing Commission data published through its great Quick Facts series on Theft, Property Destruction, & Fraud and Tax Fraud.  These two reports seem to cover, roughly speaking, the pools of white-collar cases I have in mind that might be readily impacted by "Smart on Crime" talk about reduced reliance on lengthy terms of imprisonment.  And, perhaps significantly, two notable parallel sentencing "trends" were reported in these USSC documents:

These two data notes are not, of course, conclusive qualitative proof that DOJ's "Smart on Crime" initiative has had a big impact on federal white-collar sentencing outcomes in recent years.  But it does suggest something is helping to "move the sentencing needle" in these kinds of cases in recent years.  Relatedly, I would love to hear in the comments or some other way any and all reports (dare I say "qualitative" evidence) from white-collar sentencing practitioners concerning whether they think what AG Holder said and DOJ did as part of its "Smart on Crime" initiative back in 2013 is having a continual tangible impact on case processing and sentencing in non-violent fraud and other white-collar cases.

October 26, 2016 in Criminal justice in the Obama Administration, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3)

Tuesday, October 25, 2016

"Assessing the Impact of Johnson v. United States on the Void-for-Vagueness Doctrine"

The title of this post is the title of this effective and extensive new Casetext essay authored by Carissa Hessick. It starts and ends this way:

Johnson v. United States, 135 S. Ct. 2551 (2015), held that the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague.  Johnson generated a large amount of litigation in the federal courts.  Less than a year after it was decided, the Supreme Court decided another Johnson case, Welch v. United States, 136 S. Ct. 1257 (2016), which held that the rule in Johnson should be applied retroactively to those defendants whose convictions and sentences have already become final.  The Supreme Court has also agreed to hear two new Johnson cases in the 2016 Term.

Johnson raised important constitutional doubts about federal statutes that employ the so-called “categorical approach” to classifying criminal conduct, as well as doubts about certain Federal Sentencing Guidelines.  This short essay describes Johnson and explores the Johnson-related issues that the Court will hear this Term....

Johnson v. United States is of the most cited U.S. Supreme Court cases from recent Terms.  Johnson obviously affected the large number of defendants who were sentenced under the residual clause of the Armed Career Criminal Act.  It may, however, have a lasting impact on the vagueness doctrine itself.  By questioning the viability of the categorical approach and by clarifying that the doctrine applies also to laws that fix sentences, Johnson has called into doubt the constitutionality of other federal criminal laws and various Federal Sentencing Guidelines.  We will have to await the decisions in Lynch v. Dimaya and Beckles v. United States in order to fully assess the legacy of Johnson.  If the government loses those cases, then we are likely to see a further challenges to laws that fall within the long shadow of Johnson.

October 25, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Monday, October 24, 2016

Former Pennsylvania AG sentenced to 10-23 months in prison following jury convictions for perjury and obstruction of justice

I have not closely followed developments surrounding the political downfall and criminal prosecution of former Pennsylvania Attorney General Kathleen Kane.  But today this matter involved some interesting sentencing stories and drama, as reported via this lengthy local article headlined "Despite plea for leniency, Kane gets 10-23 months in jail."  Here are excerpts:

Former Pennsylvania Attorney General Kathleen Kane was sentenced Monday to 10 to 23 months in jail for orchestrating an illegal news leak to damage a political enemy, capping a spectacular downfall for a woman once seen as one of the state's fastest-rising stars.

"The case is about ego, ego of a politician consumed by her image from Day 1," Judge Wendy Demchick-Alloy told Kane at the end of a five-hour hearing in Norristown. "And instead of focusing solely on the business of fighting crime, the focus was battling these perceived enemies . . . and utilizing and exploiting her position to do it."

A tearful Kane pleaded for leniency, urging the judge to consider the impact on her sons. "I would cut off my right arm if they were separated from me and I from them," she said. "Please sentence me and not them."   But Demchick-Alloy was not swayed. "It's a shame that they had to go through all of this," she told Kane. "But that's a decision you made, not this court."

Unable to immediately post $75,000 bail, Kane was led in handcuffs from the courtroom to the Montgomery County Correctional facility in Eagleville.  She was released hours later — and might not have to return anytime soon. She will remain free on bail until she exhausts her state appeals, a process that could take months.

Still, the sentencing marked a bitter end to a career that drew national attention after Kane, a political neophyte and Scranton-area prosecutor, in 2012 became the first Democrat and woman to be elected as attorney general of Pennsylvania. Over hours on Monday, the judge heard Kane's supporters — including her son — extol her accomplishments and describe how devastating her conviction has been.

But Montgomery County prosecutors countered by calling to the stand Kane's current and former colleagues, who testified how she let a personal feud and paranoia poison the state's top law enforcement office and plunge it into disarray.

Erik Olsen, a top prosecutor, said he was thrilled when Kane won election, thinking her victory would bring a much-needed fresh perspective to an office he said had at times been "misogynistic and mean-spirited."  Instead, he testified, "through a pattern of systematic firings and Nixonian espionage, she created a terror zone in this office."

Kane's first year was marked by political and public relations successes.  She drew attention for her stands in support of marriage equality and gun control and for crippling Republican Gov. Tom Corbett's move to privatize the lottery — all positions her lawyer cited Monday in arguing for house arrest.  But after her star began to dim in 2014, she leaked confidential grand jury material to a newspaper in a bid to embarrass a political enemy, and then lied about her actions under oath. The ensuing two years became a bitter war, often played out through legal filings or public statements, that at times entangled government officials, Supreme Court justices, and the legislature.

At a trial in August, a jury found her guilty of perjury, obstruction and other charges.  She resigned a day later.

In her plea to the judge, Kane did not directly apologize for her crimes but rather for the consequences of her actions, saying she never intended to hurt anyone and was sorry if Pennsylvanians had lost a sense of trust in the attorney general's office. But her appeal for house arrest was a personal one: A 50-year-old mother in the throes of a divorce, she said a sentence sending her to prison could devastate her sons, 14 and 15....

Kane's lawyer, Marc R. Steinberg, said Kane's unprecedented fall from grace had been a punishment in itself. "She stands a convicted felon subject to public shame and public humiliation," he said.  Steinberg also argued Kane could be in danger behind bars, a prediction echoed by Frank V. DeAndrea Jr., a former Hazleton police chief who raised the specter of drug gangs ordering a prison hit and told the judge incarceration could be a "death sentence" for the former prosecutor.

Demchick-Alloy retorted: "When you unfortunately dirty yourself with criminal behavior, you assume that risk."

Prosecutors had sought a stiff prison term, pointing to the impact of Kane's crimes and the office culture of fear and paranoia that developed under her tenure. A former state prosecutor, Clarke Madden, testified that Kane's wrongdoing caused the State Police and the FBI to refuse to cooperate with their office, discouraged victims and witnesses from being helpful to their cases and led judges and defense lawyers to subject prosecutors to sarcastic and sniggering remarks....  After the sentencing Monday, Montgomery County District Attorney Kevin R. Steele and fellow prosecutor Michelle Henry told reporters they were satisfied with the outcome. "We suggest that is a significant sentence," Steele said. "Nobody is above the law."

October 24, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (2)

Sunday, October 23, 2016

California judge imposes prison term of 1,503 years(!?!) on father who repeatedly raped daughter

As reported in this local article, a state judge in California gave new meaning to the term "mass incarceration" by imposing a prison sentence on a rapist that will not be completed until the year 3519.  Here are the details:

Fresno prosecutor Nicole Galstan asked a judge on Friday to sentence Rene Lopez to 1,503 years in prison for raping his teenage daughter over a four-year period, ending in 2013.  Judge Edward Sarkisian Jr. agreed, sentencing the 41-year-old Lopez to the longest-known prison sentence in Fresno Superior Court history.

It stands in stark contrast to recent high-profile sentencings in sexual assault cases such as six months for ex-Stanford swimmer Brock Turner and, just this week, 60 days for a Montana man convicted of felony incest for raping his 12-year-old daughter.

In announcing the punishment, Sarkisian told Lopez he violated a position of trust, engaged in violent conduct and is a “serious danger to society.” Sarkisian also noted that Lopez had never shown remorse and has blamed his daughter for his predicament.

Lopez, who sat shackled in the courtroom, sat silently, never acknowledging his daughter, who told Sarkisian that she feared her father. (The Fresno Bee does not name victims of sexual abuse.) “When my father abused me, I was young. I had no power, no voice. I was defenseless,” said the daughter, who now is 23 years old. She also told the judge that her father never has shown remorse for her pain and suffering....

In September, a jury found Lopez guilty of 186 felony counts of sexual assault, including dozens of counts of rape of a minor.  Galstan said the victim was first sexually abused by a family friend.  But instead of the father protecting his daughter, “he chose to turn her into a piece of property and use her to satisfy his sexual needs,” the prosecutor told the judge.

The victim was raped two to three times a week from May 2009 to May 2013.  Galstan said it ended only when the girl got the courage to leave him. Even then, her father would drive by her new home and later leave love songs on her message machine, the judge said....

At Friday’s hearing, Sarkisian read the date of each felony count, which included Lopez raping his daughter on Christmas and other holidays.  Before he announced the sentence, Sarkisian said Lopez turned down two plea deals. Before his preliminary hearing, if he had admitted his guilt, prosecutors would have recommended 13 years in prison. Lopez rejected the offer. Then before his trial, he was offered 22 years in prison if he admitted his guilt. Lopez declined that offer, saying he should be released from jail for the time he already had served, Sarkisian said.

“He ruined her teenage years and made her feel like it was her fault,” Galstan said in arguing for the maximum sentence.

Lopez, who did not testify in his trial, wrote in a letter to the judge that he didn’t get a fair trial and that his daughter lied on the witness stand. “It’s hearsay,” he says in the letter.  But Sarkisian told him that he received a fair trial and that the evidence was overwhelming.  In addition to the victim’s testimony, jurors heard entries from her diary in which she chronicled her father’s crimes against her, Galstan said.  And when she got pregnant from her father, he paid for the abortion, the judge said.

In addition to the prison sentence, Sarkisian said Lopez will have to register as a sex offender.

Though this defendant was convicted of extreme crimes that justified an extreme sentence, the decision of the prosecutor to seek and the judge to impose a term of 1,503 years in prison strikes me as silly and arguably counterproductive to the goal of helping all victims of sexual assault feel vindicated by the criminal justice system.  It is silly, I think, to impose upon a defendant a crazy-long-impossible prison sentence just for symbolic effect, just as a restitution sentence of, say, "one trillion, zillion, billion dollars" would be silly.  And this crazy-long-impossible prison sentence could, at least indirectly, make other victims of sexual assault whose victimizers were given much shorter sentences feel as though their harms were not entirely vindicated in their cases.

UPDATE: Over at his blog Simple Justice, Scott Greenfield has this effective new post titled "Rape, Incest And Retribution" to highlights how this case takes us from "the sublime to the ridiculous" as we reflect on what this case represents against the backdrop of other recent controversial sexual assault cases in California and Montana. In addition to recommending this post in full, I also recommend the comments there (as well as this funny button Scott provides if his post hurts your feelings).

October 23, 2016 in Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (19)

Thursday, October 20, 2016

BJS reports encouraging crime reductions based on its National Crime Victimization Survey

Some more interesting and important (and perhaps confusing) official crime data was reported earlier today via this notable new report from DOJ's Bureau of Justice Statistics excitingly titled "Criminal Victimization, 2015."  Though the title of the report is not so thrilling, the data contained therein is largely a cause for celebration.  This first page of overview/highlights explains why (with my emphasis added):

In 2015, U.S. residents age 12 or older experienced an estimated 5.0 million violent victimizations, according to the Bureau of Justice Statistics’ (BJS) National Crime Victimization Survey (NCVS). There was no statistically significant change in the rate of overall violent crime, defined as rape or sexual assault, robbery, aggravated assault, and simple assault, from 2014 (20.1 victimizations per 1,000 persons age 12 and older) to 2015 (18.6 per 1,000) (figure 1).  However, the rate of violent crime in 2015 was lower than in 2013 (23.2 per 1,000). From 1993 to 2015, the rate of violent crime declined from 79.8 to 18.6 victimizations per 1,000 persons age 12 or older.

The rates of violent and property crime largely followed similar trends over time. Households in the U.S. experienced an estimated 14.6 million property victimizations in 2015. The overall property crime rate (which includes household burglary, theft, and motor vehicle theft) decreased from 118.1 victimizations per 1,000 households in 2014 to 110.7 victimizations per 1,000 in 2015. A decline in theft accounted for most of the decrease in property crime.

„No statistically significant change occurred in the rate of violent crime from 2014 (20.1 victimizations per 1,000) to 2015 (18.6 per 1,000). „

No statistically significant change was detected in the percentage of violent crime reported to police from 2014 (46%) to 2015 (47%). „

No measureable change was detected in the percentage of violent crime victimizations in which victim services were received from 2014 (10.5%) to 2015 (9.1%).

The rate of property crime decreased from 118.1 victimizations per 1,000 households in 2014 to 110.7 per 1,000 in 2015.

In 2015, 0.98% of all persons age 12 or older (2.7 million persons) experienced at least one violent victimization. „

The prevalence rate of violent victimization declined from 1.11% of all persons age 12 or older in 2014 to 0.98% in 2015. „

In 2015, 7.60% of all households (10 million households) experienced one or more property victimizations. „

The prevalence rate of property victimization declined from 7.99% of all households in 2014 to 7.60% in 2015.

In other words, in 2015 according to this distinctive victim-based accounting of crime in the United States (which, critically, excludes any homicide measures), crime remained steady at modern record-low levels or even declined a bit across most types of crime.

October 20, 2016 in Data on sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Local Montana judge being assailed for short jail sentence given to father who raped 12-year-old daughter

The latest controversially lenient sexual offense sentencing garnering social and traditional media attention comes from Montana, and this Washington Post article provides some of the notable details under the headline "Father who ‘repeatedly raped his 12-year old daughter’ gets 60-day sentence. Fury erupts." Here are excerpts:

In the case of Judge John McKeon, as of early morning Wednesday, almost 20,000 people had signed a Change.org petition calling for his impeachment for the 60-day sentence he gave a Glasgow, Mont., man who pleaded guilty to repeatedly raping his prepubescent daughter. “A father repeatedly raped his 12-year old daughter,” Deputy Valley County Attorney Dylan Jenson said during an Oct. 4 sentencing hearing. “It’s time to start punishing the judges who let these monsters walk our streets,” read the petition.

Prosecutors had recommended a mandatory 25-year sentence, 100 years with 75 suspended, which is what state law calls for. Instead, though, Judge McKeon handed down a far lighter sentence: a 30-year suspended prison sentence, which means the man will only serve it if he fails to meet the conditions of his probation.

Among those conditions, which McKeon called “quite rigorous,” was the requirement for the man to register as a sex offender, the Glasgow Courier reported. He also cannot access pornography and has limited access to the Internet. In addition, the man will serve 60 days in jail, but McKeon gave him credit for the 17 days he already served, meaning he’ll only spend another 43 days in jail....

In most of these controversial cases, the judges under siege tend to remain silent. What makes McKeon’s case unusual is that he has chosen to defend himself in public. In an email to the Associated Press, McKeon said he had several reasons for handing down the seemingly light sentence.

The judge claimed that news coverage obscured state law by failing to mention an exception to the mandatory 25-year prison sentence. According to McKeon, the law allows those arrested for incest involving someone under 12 years old to avoid prison if a psychosexual evaluation finds that psychiatric treatment “affords a better opportunity for rehabilitation of the offender and for the ultimate protection of the victim and society.” The judge wrote this is one of Montana’s attempts “to encourage and provide opportunities for an offender’s self-improvement, rehabilitation and reintegration back into a community.”

In the note to the AP, McKeon also referenced letters written to him by the victim’s mother and grandmother. Both letters requested the convicted man not be sentenced to prison. The victim’s mother, who walked in on the man sexually abusing her daughter, wrote that the man’s two sons love him and she wanted his “children have an opportunity to heal the relationship with their father,” according to McKeon.

The victim’s grandmother echoed this, calling the man’s behavior “horrible” but stating that the man’s children, “especially his sons, will be devastated if their Dad is no longer part of their lives.”

For all these letters defending the convicted man, though, Deputy Valley County Attorney Dylan Jensen told the AP that no one spoke on behalf of the victim, a 12-year-old girl, at Friday’s sentencing hearing. The petition to impeach McKeon highlighted this fact. “No one spoke on behalf of the 12 year old child at trial,” it read. “No one. The victim was not given justice, but instead will have to live with the fear that she still has to face her rapist in their community. ”

McKeon’s email concluded, “All district judges take an oath to uphold the Constitution and laws of this state. These constitutional provisions and laws include certain fundamental legal principles that apply at sentencing, including a presumption of innocence for unproved criminal allegations, the varying sentencing policies and the government’s burden to counter evidence supporting an exception to mandatory sentence.”...

McKeon, who has served as a Montana state judge for 22 years, is retiring next month, according to the Associated Press. Considering that an impeachment in Montana, according to the National Center for State Courts, requires a “two-thirds vote of the house of representatives and [a] convict[ion] by a two-thirds vote of the senate,” the point is fairly moot — there simply isn’t enough time to impeach him.

October 20, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)

Wednesday, October 12, 2016

"Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States"

2016-10-usa-coverThe title of this post is the title of this lengthy new Human Rights Watch report. Here is part of the report's summary introduction:

Every 25 seconds in the United States, someone is arrested for the simple act of possessing drugs for their personal use, just as Neal and Nicole were. Around the country, police make more arrests for drug possession than for any other crime. More than one of every nine arrests by state law enforcement is for drug possession, amounting to more than 1.25 million arrests each year. And despite officials’ claims that drug laws are meant to curb drug sales, four times as many people are arrested for possessing drugs as are arrested for selling them.

As a result of these arrests, on any given day at least 137,000 men and women are behind bars in the United States for drug possession, some 48,000 of them in state prisons and 89,000 in jails, most of the latter in pretrial detention. Each day, tens of thousands more are convicted, cycle through jails and prisons, and spend extended periods on probation and parole, often burdened with crippling debt from court-imposed fines and fees. Their criminal records lock them out of jobs, housing, education, welfare assistance, voting, and much more, and subject them to discrimination and stigma. The cost to them and to their families and communities, as well as to the taxpayer, is devastating. Those impacted are disproportionately communities of color and the poor.

This report lays bare the human costs of criminalizing personal drug use and possession in the US, focusing on four states: Texas, Louisiana, Florida, and New York. Drawing from over 365 interviews with people arrested and prosecuted for their drug use, attorneys, officials, activists, and family members, and extensive new analysis of national and state data, the report shows how criminalizing drug possession has caused dramatic and unnecessary harms in these states and around the country, both for individuals and for communities that are subject to discriminatory enforcement.

There are injustices and corresponding harms at every stage of the criminal process, harms that are all the more apparent when, as often happens, police, prosecutors, or judges respond to drug use as aggressively as the law allows. This report covers each stage of that process, beginning with searches, seizures, and the ways that drug possession arrests shape interactions with and perceptions of the police—including for the family members and friends of individuals who are arrested. We examine the aggressive tactics of many prosecutors, including charging people with felonies for tiny, sometimes even “trace” amounts of drugs, and detail how pretrial detention and long sentences combine to coerce the overwhelming majority of drug possession defendants to plead guilty, including, in some cases, individuals who later prove to be innocent.

The report also shows how probation and criminal justice debt often hang over people’s heads long after their conviction, sometimes making it impossible for them to move on or make ends meet. Finally, through many stories, we recount how harmful the long-term consequences of incarceration and a criminal record that follow a conviction for drug possession can be—separating parents from young children and excluding individuals and sometimes families from welfare assistance, public housing, voting, employment opportunities, and much more.

October 12, 2016 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

You be the judge: what sentence for mother and grandmother who delivered deadly heroin to teen?

The question in the title of this post is prompted by this disturbing AP story headlined "Mom, grandma face sentencing in teen's heroin death at hotel." Here are the depressing details:

The mother and grandmother of a teen who died from a heroin overdose at an Ohio hotel are scheduled to be sentenced for giving the 16-year-old the drugs that killed him.  Prosecutors say the grandmother delivered the drugs that her daughter and a friend used with the teen at a hotel in suburban Akron.

Investigators say Andrew Frye was found dead last April in a chair inside the hotel room that was littered with syringes and drug paraphernalia.

Both his mother, Heather Frye, and grandmother, Brenda Frye, pleaded guilty to involuntary manslaughter and other charges last month.  Prosecutors say Brenda Frye got the heroin from her boyfriend who pleaded guilty to heroin possession.

This prior story about the guilty pleas entered last month reports that the mother, Heather Frye, is 31 years old and the grandmother, Brenda Frye, is 52 years old.  With those additional details, I am now genuinely interested in and eager to hear from readers about what they think would be a fair and effective sentence for these two individuals.

October 12, 2016 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Monday, October 10, 2016

Is supposedly "tough-on-crime" GOP Senator (and former federal prosecutor) Jeff Sessions actually not-so-tough on sexual assault?

The provocative question in the title of this post is my reaction to seeing these two new (right-leaning-source) stories about comments made last night by Alabama GOP Senator (and former US Attorney) Jeff Sessions:

From RedState here, "Senator Jeff Sessions Unsure Whether Grabbing Women by Their Genitals is Sexual Assault"

From the Weekly Standard here, "Jeff Sessions: Behavior Described by Trump in 'Grab Them by the P---y' Tape Isn't Sexual Assault"

One of many notable aspects of GOP Prez candidate Donald Trump's campaign has been the fact that his three most-prominent political surrogates are all former US Attorneys: Chris Christie was US Attorney for New Jersey from 2002 to 2008, Rudy Giuliani was US Attorney for the Southern District of New York from 1983 to 1989, and Jeff Sessions was US Attorney for the Southern District of Alabama from 1981 to 1993.  I have long assumed that this notable troika of US Attorneys advising Trump has played a significant role in Trump's effort to brand himself as the "law-and-order" candidate.

As regular readers surely know, I often have a number of different perspectives on a number of crime and punishment issues than do many current and former US Attorneys.  As I also hope readers also realize, I always have had a significant amount of respect for the professional honesty and personal integrity of current and former US Attorneys.  But Senator Sessions' statements reported above (as well as some other actions by Chris Christie and Rudy Giuliani in recent weeks and months) has really dealt a significant blow to my continued ability to have continued respect for the professional honesty and personal integrity of at least some former US Attorneys.

UPDATE: This local article reports on Senator Sessions' effort to clarify his remarks under the headline, "Sen. Jeff Sessions denies dismissing Trump's lewd video comments: 'Crystal clear' sexual assault unacceptable."

October 10, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (93)

Thursday, September 29, 2016

New HELP Act seemingly proposes death — and mandates LWOP — for spiked heroin dealing in every case in which "death or serious bodily injury results"

In this post yesterday I noted that Representative Tom Reed, who represents the 29th Congressional District of New York, last week introduced a bill (with four co-sponsors) that would respond to the current heroin epidemic by expanding the federal death penalty.  In that post, you can find Rep Reed's press release, headlined "Reed Stands with Victims: Offers Death Penalty Proposal for Heroin Dealers," explaining the background and reasons for his proposal.

This morning, I found that this page at Congress.gov providing more information about the Help Ensure Lives are Protected (HELP) Act now has this link to the (quite short) text of Rep Reed's bill.  Somewhat disconcertingly, but not really all that surprisingly, the bill is written in a way that seems to mandate federal life without parole (and permits the death penalty) in any and every case in which any user of spiked heroin suffers even serious bodily injury and even if the person distributing the heroin does not know or even have any reason to know the heroin is spiked or that it could seriously injure a user.  

In other words, as I read the key text of the proposed HELP Act, this bill calls for holding any and all heroin distributors strictly and severely criminally liable for any and all serious injuries or deaths that result from a user ingesting spiked heroin.  This is because the HELP Act simply amends the "Penalties" provision of the Controlled Substances Act by adding "if the mixture or substance [of more than 100 grams] containing a detectable amount of heroin also contains a detectable amount of [spiked substance like fentanyl], and if death or serious bodily injury results from the use of such substance, such person shall be sentenced to life imprisonment or death."

Of course, the Supreme Court long ago concluded that the Eighth Amendment precludes even felony murderers from be subject to the death penalty unless and until it can be shown they were at least extremely reckless in the causing of a death.  Thus, because of constitutional limits, there is little chance this bill if enacted would end up sending lots of drug dealers to federal death row.  But, the Eighth Amendment was interpretted in 1991 to permit Michigan to mandatorily impose LWOP on adults for just the possession of a significant quantity of drugs.  Thus, if the HELP Act were to become law, there is a real reason to expect that a huge numbers of persons involved in heroin distribution throughout the US could soon be facing mandatory life sentences if anyone who gets a spiked drug gets seriously injured.

Prior related posts:

September 29, 2016 in Death Penalty Reforms, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Wednesday, September 28, 2016

"The Case Against Prisons: Alternatives to imprisonment are working around the world — so why isn’t the United States on board?"

The title of this post is the headline of this lengthy new piece by Rebecca Gordon at The Nation (although the title is a bit misleading because the piece talks more about justice and punishment than about prisons). Here are excerpts:

This year, a brave New Jersey state senator, a Democrat, took on the pernicious problem of distracted walking. Faced with the fact that some people can’t tear themselves away from their smartphones long enough to get across a street in safety, Pamela Lampitt of Camden, New Jersey, proposed a law making it a crime to cross a street while texting. Violators would face a fine, and repeat violators up to 15 days in jail. Similar measures, says the Washington Post, have been proposed (though not passed) in Arkansas, Nevada, and New York. This May, a bill on the subject made it out of committee in Hawaii.

That’s right. In several states around the country, one response to people being struck by cars in intersections is to consider preemptively sending some of those prospective accident victims to jail. This would be funny, if it weren’t emblematic of something larger. We are living in a country where the solution to just about any social problem is to create a law against it, and then punish those who break it....

I’ve been teaching an ethics class at the University of San Francisco for years now, and at the start of every semester, I always ask my students this deceptively simple question: What’s your definition of justice?...

For most of my students – for most Americans in fact – justice means establishing the proper penalties for crimes committed. “Justice for me,” says one, “is defined by the punishment of wrongdoing.” Students may add that justice must be impartial, but their primary focus is always on retribution. “Justice,” as another put it, “is a rational judgment involving fairness in which the wrongdoer receives punishment deserving of his/her crime.”...

Often, when citing the sources of their beliefs about justice, students point to police procedurals like the now-elderly CSI and Law and Order franchises. These provide a sanitary model of justice, with generally tidy hour-long depictions of crime and punishment, of perps whose punishment is usually relatively swift and righteous.

Certainly, many of my students are aware that the U.S. criminal justice system falls far short of impartiality and fairness. Strangely, however, they seldom mention that this country has 2.2 million people in prison or jail; or that it imprisons the largest proportion of people in the world; or that, with 4% of the global population, it holds 22% of the world’s prisoners; or that these prisoners are disproportionately brown and black. Their concern is less about those who are in prison and perhaps shouldn’t be, than about those who are not in prison and ought to be.

They are (not unreasonably) offended when rich or otherwise privileged people avoid punishment for crimes that would send others to jail. At the height of the Great Recession, their focus was on the Wall Street bankers who escaped prosecution for their part in inflating the housing bubble that brought the global economy to its knees. This fall, for several of them, Exhibit A when it comes to justice denied is the case of former Stanford student Brock Turner, recently released after serving a mere three months for sexually assaulting an unconscious woman. They are (perhaps properly) outraged by what they perceive as a failure of justice in Turner’s case. But they are equally convinced of something I struggle with – that a harsher sentence for Turner would have been a step in the direction of making his victim whole faster. They are far more convinced than I am that punishment is always the best way for a community to hold responsible those who violate its rules and values....

Of course, the urge to extend punishment to every sort of socially disapproved behavior, including texting in a crosswalk, is hardly a new phenomenon. Since the founding of the United States, government at every level has tended to make unpopular behavior illegal. Just to name a few obvious examples of past prohibitions now likely to stop us in our tracks: at various times there have been laws against having sex outside marriage, distributing birth control, or marrying across races (as highlighted in the new movie Loving). In 1919, for instance, a constitutional amendment was ratified outlawing the making, shipping, or selling of alcohol (although it didn’t last long)....

It’s hard to imagine a justice system that doesn’t rely primarily on the threat of punishment when, for most Americans, no alternative is imaginable. But what if there were alternatives to keeping 2.2 million people in cages that didn’t make the rest of us less safe, that might actually improve our lives? Portugal has tried one such alternative. In 2001, as the Washington Post reported, that country “decriminalized the use of all drugs” and decided to treat drug addiction as a public health problem rather than a criminal matter. The results? Portugal now has close to the lowest rate of drug-induced deaths in Europe – three overdose deaths a year per million people. By comparison, at 45 deaths per million population, the United Kingdom’s rate is more than 14 times greater. In addition, HIV infections have also declined in Portugal, unlike, for example, in the rural United States where a heroin epidemic has the Centers for Disease Control and Prevention worried about the potential for skyrocketing infection rates.

All right, but drug use has often been called a “victimless” crime. Maybe it doesn’t make sense to lock up people who are really only hurting themselves. What about crimes like theft or assault, where the victims are other people? Isn’t punishment a social necessity then?

If you’d asked me that question a few years ago, I would probably have agreed that there are no alternatives to prosecution and punishment in response to such crimes. That was before I met Rachel Herzing, a community organizer who worked for the national prison-abolition group Critical Resistance for 15 years. I invited her to my classes to listen to my students talk about crime, policing, and punishment. She then asked them to imagine the impossible – other methods besides locking people up that a community could use to restore itself to wholeness.

This is the approach taken by the international movement for restorative justice. The Washington, D.C.-based Centre for Justice and Reconciliation describes it this way: “Restorative justice repairs the harm caused by crime. When victims, offenders, and community members meet to decide how to do that, the results can be transformational.”...

So the next time you find yourself thinking idly that there oughta be a law – against not giving up your seat on a bus to someone who needs it more, or playing loud music in a public place, or panhandling – stop for a moment and think again. Yes, such things can be unpleasant for other people, but maybe there’s a just alternative to punishing those who do them.

September 28, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

"How Did Chicago Get So Violent? Did the effort to eradicate the city’s gangs in the 1990s inadvertently lead to its bloody present?"

The question in the title of this post are the headline of this really interesting new Slate article.  I recommend the article in full, and this extended excerpt highlights the key ideas of the piece:

The first wave of convictions stemming from Operation Headache came in March 1996.  But the biggest, most symbolically meaningful blow to the Gangster Disciples was delivered in May 1997, when Hoover was convicted of 42 counts of conspiracy to distribute drugs, received a sentence of six life terms, and was transferred to a supermax prison in Colorado, where his cell was located several stories underground and his ability to communicate with the remnants of his gang were severely constrained.  Soon, the GDs in Chicago had been all but neutralized, and the authorities shifted their attention to decapitating the city’s other major drug organizations, the Black Disciples and the Vice Lords.

Over the course of a roughly 10-year stretch starting in the mid-1990s, leaders from the GDs, the Vice Lords, the Black Disciples, and to a lesser extent, the Latin Kings were successfully prosecuted and taken off the street.  The top-down assault appeared to work as Safer and his colleagues had hoped: violent crime in Chicago began to decline, with the city’s murder total dropping from a high of 934 in 1993 to 599 10 years later.

For a while, it looked like the trend might continue moving in a positive direction, but after dipping below 500 in 2004, the number of murders in Chicago per year leveled off and began hovering in the 400s.  Over the past several years, however, the situation started getting worse; today, Chicago is once again synonymous with out-of-control gun violence, a city that regularly makes national news for the perilous existence that some of its poorest residents must endure.  Over the weekend of Sept. 12, the city passed 3,000 shootings and 500 murders since the beginning of the year, surpassing in just nine months the total numbers from 2015. As of this writing, the 2016 tally is up to 3,131 shootings and 530 homicides; a recent report from the Brennan Center for Justice showed that Chicago, by itself, is responsible for half of the 13 percent increase in homicides that the country as a whole is projected to experience this year.

According to the Chicago Police Department, 85 percent of the city’s gun murders in 2015 can be attributed to gang violence — a statistic that suggests a return to the bad old days while obscuring how profoundly the nature of Chicago’s gang problem has changed in the intervening years.  While experts say the Latin Kings, a Hispanic gang, continue to run a large and rigidly organized drug-selling operation on Chicago’s West Side, the majority of Chicago residents who call themselves gang members are members of a different type of group. Rather than sophisticated drug-selling organizations, most of the city’s gangs are smaller, younger, less formally structured cliques that typically lay claim to no more than the city block or two where they live.  The violence stems not from rivalries between competing enterprises so much as feuds that flare up with acts of disrespect and become entrenched in a cycle of murderous retaliation.

Many close observers of Chicago’s violence believe that, as well-intentioned as it was, the systematic dismantling of gangs like the Disciples led directly to the violence that is devastating the city’s most dangerous neighborhoods in 2016.  Taking out the individuals who ran the city’s drug trade, the theory goes, caused a fracturing of the city’s criminal underworld and produced a vast constellation of new entities that are no less violent, and possibly even more menacing, than their vanquished predecessors.

“Every time they hit these large street gangs, they’d focus on the leadership,” said Lance Williams, an associate professor at Northeastern Illinois University, and the co-author of a book about the rise and fall of the Black P Stone Nation, a gang that was eradicated in the 1980s.  “It’s like cutting the head off a snake — you leave the body in disarray and everyone begins to scramble for control over these small little areas. And that’s where you get a lot of the violence, because the order is no longer there.”  Williams added: “When you lose the leadership, it turns into chaos… What we’re dealing with now is basically the fallout of gang disorganization.”

The proliferation of small gangs has created a complicated and ever-changing patchwork of new alliances and rivalries, and instilled in many young people — predominantly poor, black men — a sense that they are vulnerable at all times to lethal attacks by members of opposing factions.

September 28, 2016 in National and State Crime Data, Offender Characteristics, Offense Characteristics | Permalink | Comments (9)

Wednesday, September 21, 2016

Federal District Judge reasonably asks "What’s The Deal With White Guys And Child Porn?"

Long-time readers and federal district court aficionados likely know plenty about Senior United States District Judge Richard G. Kopf, a jurist who has never been afraid to say what he is thinking (and who's gotten in trouble a few times for that tendency). As evidenced by this new post at Mimesis Law, the judge has lately been giving thought to kiddie porn and the racial demographics of certain offender groups.  Here are excerpts:

In America, there is no doubt that in most circumstances being white (Caucasian in census terms) is a benefit.... But, at least in one category, it appears that being white is not a really good thing, but rather a predictor for the commission of horrible federal crimes. I refer to the production of child pornography.

The Sentencing Commission has told us that child porn consumers[* footnote] are “overwhelming white.” U.S. Sentencing Commission, Report to the Congress: Federal Child Pornography Offenses, ch. 11 at 308 n. 56 (Dec. 2012). The same thing is true for producers of child pornography. That is: "Production offenders, like non-production child pornography offenders, are a relatively homogenous group demographically compared to federal offenders generally. Among production offenders in fiscal year 2010, the overwhelming majority were male (97.0%), white (85.9%), and United States citizens (97.0%)."

Moreover, child porn producers were very different than the normal federal offender.  They were employed, relatively well-educated and came from a higher socio-economic background. To be specific, ... "like non-production offenders, production offenders on average occupy a higher socio-economic status than federal offenders generally. In fiscal year 2010, 87.7 percent of production offenders were high school graduates, and 46.7 percent had at least some college.  In fiscal 2010, among all federal offenders, the typical offender was not a high school graduate (51.4%), and only 19.9 percent of offenders had at least some college education.  There was a high degree of employment among child pornography production offenders at the time of their arrests.  Of the 197 production offenders sentenced in 2010 for which there was employment data, 76.1 percent were employed."

But in all probability, you don’t know what I mean, at least on a visceral level, by the words “child porn producer.”  So let me give you an example.  Be prepared to puke. The following is an accurate media summary of a child porn production case that started off in Michigan and landed on my docket as well because the united group of producers spanned our nation.

"A November arrest in a child porn case has led federal investigators to a larger ring of suspects accused of working together online to manipulate young girls into engaging in sexual acts on camera. A complaint against a California man filed in Detroit federal court Thursday revealed details of a disturbing and elaborate operation that sought to lure minors into video chatrooms where they would be urged to perform 'dares' while their images were recorded.... Federal investigators learned that members of the group served distinct roles that included 'hunters,' 'talkers,' 'loopers' and 'watchers'."

What happened to these young girls, mostly in their early teens, was horrendous.  Suffice it state that they were cajoled or trapped into violating themselves in the most sickening and humiliating of ways, in one case blackmailed to continue the abuse, and in another case permitted to harm herself for the pleasure of the observers.

My part of this case was simple.  The Nebraska white guy, who was 31, and a hardworking man, with post-secondary education, and respected member of his community, was confronted at his home by the FBI.  He told me that he was relieved when the feds came to the door because he didn’t know how to stop.  He immediately spilled his guts.  I accepted the Rule 11(c) (1) (C) plea agreement, containing an appeal waiver, and requiring me to sentence the defendant to 35 years in prison.  His Guideline range was life.

He was very smart to have accepted the deal because I would likely have imposed a life sentence.  Despite my reservations, I approved the plea agreement to avoid a trial with the kids being forced to testify.  I also sentenced him to a life of supervised release when he gets out of prison as an old man.  He was capable of making, and I required him to pay, a substantial amount of restitution to the children.

As I reflected on the above, I wondered about the word “thug” with all the racial freight that word carries.  I asked myself how I should describe these white child porn producers assuming I see no problem with the word “thug.”  Perhaps I could call them “white devils!”  Anyway, at this point I realized that my mind was wandering, so I returned to the essential question.

What the hell is wrong with white guys?

[* footnote] As I have previously noted in Fault Lines, I have some empathy for child porn consumers as opposed to child porn producers.  See here.

September 21, 2016 in Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13)

Tuesday, September 20, 2016

Do animal abuser registries make more or less sense than sex offender registries?

The question in the title of this post is prompted by this recent Washington Post piece headlined "Animal abusers are being registered like sex offenders in these jurisdictions." Here are excerpts:

Starting in November, convicted animal abusers in the county that includes Tampa will be easier to identify. Their names, photos and addresses will be published on a county-run website that is publicly searchable and similar to the online sex offender registries that have proliferated since the 1990s.

The animal abuser registry, passed last week by commissioners in Hillsborough County, is aimed at preventing people who have harmed animals from doing so again.  Retailers and shelters will be required to have prospective pet adopters or purchasers sign an affidavit saying they’re not on the registry.  Regular people seeking pet-sitters or new homes for their animals will be able to vet candidates. Law enforcement officials will, at least in theory, be able to keep tabs on offenders’ whereabouts.

The county is the latest in a tiny but growing group of U.S. jurisdictions to adopt such registries.  A handful of New York counties have them, as does New York City, although that one isn’t accessible to the public. Cook County, Ill., whose county seat is Chicago, recently decided to create one. Tennessee started the first statewide registry in January, although it still has just three people on its list.

“Just as we place extra trust in teachers and law enforcement, so, too, should we ensure that those engaged in the handling of animals have a spotless record,” New Jersey state Rep. Troy Singleton (D) said about legislation he sponsored to make his state home to the second statewide animal abuse registry. He referred to the idea as a “first line of defense.”

The registries are part of widening efforts in the United States to punish and track animal abusers, who, research has shown, commit violence against people at higher rates than normal. All 50 states now have felony provisions for the gravest crimes against animals, although many offenses are still considered misdemeanors. The FBI has added animal cruelty to its list of Class A felonies, and this year began collecting data for such crimes the way it does for other serious offenses, including homicide.

“Most owners consider their pets to be family members,” Kevin Beckner, the Hillsborough County commissioner who pushed for the registry, said in a statement.  “This Registry not only protects animals, but it can identify — and maybe even prevent — violence against humans, too.”

The registries have several limitations. For one thing, they’re local, not national, so a person with an animal cruelty record in Tampa wouldn’t be stopped from getting a cat in Miami. Most require the cooperation of offenders themselves, requiring them to register or face a fine.

And the tool is not without its detractors — some of whom include animal advocates.  The chair of the Hillsborough County’s Animal Advisory Committee called the registry there “not sufficient at all,” according to the Tampa Bay Times.  Retailers have protested the idea of putting salespeople in the position of saying no to potentially violent customers whose names pop up in an online search.  That concern led the Florida county to require stores and adoption shelters to procure only an affidavit, which can be checked against the registry — and passed along to authorities if there’s a match — after the customer leaves. But it has been dismissed elsewhere....

Among the skeptics is the Humane Society of the United States, whose president and chief executive, Wayne Pacelle, wrote in 2010 that the “overwhelming proportion of animal abuse is perpetrated by people who neglect their own animals” and are unlikely to commit violence against other people and pets.  “Such individuals would pose a lesser threat to animals in the future if they received comprehensive mental health counseling,” Pacelle wrote at the time.  “Shaming them with a public Internet profile is unlikely to affect their future behavior — except perhaps to isolate them further from society and promote increased distrust of authority figures trying to help them.”

A few prior related posts:

September 20, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13)

Terrific TakePart series of article and commentary on "Violence and Redemption"

TakePart has this great "Big Issue" collection of articles, videos and commentary under the heading "Violence and Redemption: Can Rehabilitating Felons Make Us Safer."  There is so much important and insightful material collected here, I cannot easily link to it all.  But I can provide this introductory paragraph and some headlines/links to whet appetites:

With 5 percent of the world’s people but 25 percent of the world’s incarcerated, the United States is home to the largest prison population in the world.

A meaningful reduction in the prison population of 2.3 million people can’t happen without addressing those incarcerated for violent offenses. They make up at least 53 percent of the total in state prisons. Is that too many? Are they in for the right reasons? Are they hopeless cases, or can something be done to help reform and rehabilitate them, make them valuable members of society who won’t commit crimes again? Advocates cite three possible approaches to this problem: reforming justice, rehabilitation, and forgiveness.

September 20, 2016 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Sunday, September 18, 2016

Who will go after the biggest (legal) drug dealers still contributing to the biggest modern drug harms?

The question in the title of this post is prompted by this new AP article headlined "Drugmakers fought state opioid limits amid crisis."  Here is how the article starts:

The makers of prescription painkillers have adopted a 50-state strategy that includes hundreds of lobbyists and millions in campaign contributions to help kill or weaken measures aimed at stemming the tide of prescription opioids, the drugs at the heart of a crisis that has cost 165,000 Americans their lives and pushed countless more to crippling addiction.

The drugmakers vow they're combating the addiction epidemic, but The Associated Press and the Center for Public Integrity found that they often employ a statehouse playbook of delay and defend that includes funding advocacy groups that use the veneer of independence to fight limits on their drugs, such as OxyContin, Vicodin and fentanyl, the narcotic linked to Prince's death.

The industry and its allies spent more than $880 million nationwide on lobbying and campaign contributions from 2006 through 2015 — more than 200 times what those advocating for stricter policies spent and eight times more than the influential gun lobby recorded for similar activities during that same period, the AP and Center for Public Integrity found.

The drugmakers and allied advocacy groups — such as the American Cancer Society Cancer Action Network — also employed an annual average of 1,350 lobbyists in state capitals from Olympia to Tallahassee during that span, when opioids' addictive nature came under increasing scrutiny.  "The opioid lobby has been doing everything it can to preserve the status quo of aggressive prescribing," said Dr. Andrew Kolodny, an outspoken advocate for opioid reform. "They are reaping enormous profits from aggressive prescribing."

Prescription opioids are the cousins of heroin, prescribed to relieve pain. Sales of the drugs quadrupled from 1999 to 2010, rising in tandem with overdose deaths. Last year, 227 million opioid prescriptions were doled out in the U.S., enough to hand a bottle of pills to nine out of every 10 American adults....

Doctors continue to prescribe opioids for ailments such as back pain and headaches, even though studies have shown weak or no evidence that the drugs are effective ways to treat routine chronic pain — and even though they come with the risk of addiction.  In 2007, executives at Purdue, the maker of OxyContin, pleaded guilty to misleading the public about the drug's addictive nature and agreed to pay $600 million in fines.

Lawmakers across the country have started attempting to limit the flood of prescribing and prevent overdoses. In 2012, for example, New Mexico considered a bill to limit initial prescriptions of opioids for acute pain to seven days to make addictions less likely and produce fewer leftover pills that could be peddled illegally. The bill died in the House Judiciary Committee. "The lobbyists behind the scenes were killing it," said Bernadette Sanchez, the Democratic state senator who sponsored the measure.

September 18, 2016 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (4)

Friday, September 16, 2016

"Clarity in Criminal Law"

The title of this post is the title of this timely new article authored by Shon Hopwood now available via SSRN. Here is the abstract:

Over the past thirty years, thousands of new federal criminal laws have been enacted, many of which are unclear and leave prosecutors and courts to now define the boundaries of the criminal code.  Tolerating unclear laws in the criminal arena has always been problematic, but it is especially so in this era of overcriminalization and excessive punishment, where a lack of clarity can result in arbitrary application of criminal statutes and the sentencing consequences of a conviction are so severe.  Although several justices have noted the lack of clarity in the criminal law, the Court as a whole has not fully reacted.

This Article suggests what that reaction should be.  It argues for a more robust review of unclear federal criminal laws, using amplified versions of two tools already at the Court’s disposal: the rule of lenity and void for vagueness doctrine.  Employing those doctrines vigorously would, in effect, create a clear statement rule in criminal law.

September 16, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

Monday, September 12, 2016

"Does the Supreme Court still believe in prosecutorial discretion?"

The question in the title of this post is the first line in this terrific new commentary by Randall Eliason at his Sidebars blog under the title "White Collar Crime, Prosecutorial Discretion, and the Supreme Court." I recommend everyone (and not just white-collar fans) to read the entire piece, and here is a taste of the astute discussion seeking to answer the question posed:

Prosecutorial discretion – the power to decide whether to bring criminal charges, who to charge, what crimes to charge, and how ultimately to resolve the case – is a fundamental component of the criminal justice system. The legislature enacts the laws but the executive branch enforces them, which includes making judgments about when and how to bring a criminal case.

On the macro level, this means setting national and local law enforcement priorities and making decisions about the deployment of finite prosecutorial resources. Different administrations at different times have declared areas such as health care fraud, narcotics, illegal immigration, or terrorism to be top priorities and have allocated resources accordingly. Such decisions necessarily mean other areas will not receive as much attention; a dollar spent fighting terrorism is a dollar that can’t be spent investigating mortgage fraud.

On the micro level, prosecutorial discretion involves deciding whether to pursue criminal charges in a given case and what charges to pursue. Factors such as the nature of the offense, strength of the evidence, the nature and extent of any harm, adequacy of other potential remedies, any mitigating circumstances or remedial efforts by the accused, and prosecutorial resources and priorities all may come into play....

In [a series of] recent [SCOTUS] cases, when faced with the interpretation of white collar crimes such as bribery, honest services fraud, and obstruction of justice, the Court’s approach has been to interpret the statutes narrowly and consequently to remove charging discretion from federal prosecutors....

[T]he Court may believe it needs to interpret criminal statutes more narrowly because it cannot always trust prosecutors to exercise sound judgment when enforcing broadly-written statutes. As Justice Kennedy suggested during the Yates argument, it may be that the Court no longer thinks of prosecutorial discretion as a viable concept.

Of course, some critics of federal prosecutors will welcome this development and suggest it is long overdue. And some will point out that, for prosecutors, this may be considered a self-inflicted wound.  The charging decisions in cases like Yates and Bond in particular may be what led the Justices openly to question whether prosecutors should continue to be entrusted with the same degree of discretion.

But it would be unfortunate if the Justices truly come to believe they cannot rely on prosecutors to exercise sound judgment in charging decisions.  One can always argue about the merits of particular cases, but overall our system of broadly-written statutes enforced by the sound exercise of prosecutorial discretion has worked pretty well.  If the Court continues to chip away at those statutes due to concerns about controlling prosecutors, it will continue to create safe harbors for some conduct that is clearly criminal.

I could write a series of law review articles about all the interesting and important modern issues that this commentary raises. With a particular focus on sentencing issues, I think it is not a coincidence that we are seeing the trend identified here at the same time there are widespread concerns about mass incarceration, the severity of some sentences for nonviolent offenders and the spread of significant collateral consequences for all convicted persons. Also, given that states can (and often will) prosecute any serious criminal activity not clearly covered by federal statutes, I really do not think we need to worry too much about narrow interpretations of broad federal criminal statutes.

September 12, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, September 11, 2016

Effective review of notable increase in murders in many cities in 2015 and thereafter

Map6-up-1050The New York Times has this effective new piece reviewing murder rates and realities in 2015 under the headlne "Murder Rates Rose in a Quarter of the Nation’s 100 Largest Cities." The piece includes lots of interesting graphics and analysis, and here are excerpts:

Murder rates rose significantly in 25 of the nation’s 100 largest cities last year, according to an analysis by The New York Times of new data compiled from individual police departments. The findings confirm a trend that was tracked recently in a study published by the National Institute of Justice. “The homicide increase in the nation’s large cities was real and nearly unprecedented,” wrote the study’s author, Richard Rosenfeld, a criminology professor at the University of Missouri-St. Louis who explored homicide data in 56 large American cities.

In the Times analysis, half of the increase came from just seven cities — Baltimore, Chicago, Cleveland, Houston, Milwaukee, Nashville and Washington. Chicago had the most homicides — 488 in 2015 — far more than the 352 in New York City, which has three times as many people. Baltimore had the largest increase — 133 more than 2014 — and the second-highest rate in 2015, after St. Louis, which had 59 homicides per 100,000 residents.

The number of cities where rates rose significantly was the largest since the height of violent crime in the early 1990s.

Donald J. Trump, the Republican presidential candidate, has said that crime is “out of control” and that decades of progress are now being reversed. But the Times analysis shows that the rise in homicides is much more nuanced; while violence is up in a number of cities, it’s not soaring across the nation. Nationally, homicide rates are still much lower than they were in the 1990s, even among the seven cities that drove last year’s increase....

Nationwide, nearly 6,700 homicides were reported in the 100 largest cities in 2015, about 950 more than the year before. About half of the rise — 480 of the 950 — occurred in seven cities. The poverty rate in these cities is higher than the national average.

At least three of these cities have also been embroiled in protests after police-involved deaths of black males, like Freddie Gray in Baltimore, Laquan McDonald in Chicago and Tamir Rice in Cleveland. In his study, Dr. Rosenfeld said that rising crime might be linked to less aggressive policing that resulted from protests of high-profile police killings of African-Americans. But he said this hypothesis, a version of the so-called Ferguson effect, which has spurred heated debate among lawmakers and criminologists, must be further evaluated.

There is no consensus on what caused the recent spike, and each city appears to have unique circumstances contributing to the uptick. “Cities are obviously heterogeneous,” said Robert Sampson, a Harvard professor who is an expert on crime trends. “There is tremendous variation across the largest cities in basic features such as demographic composition, the concentration of poverty, and segregation that relate to city-level differences in rates of violence.”

Many crime experts warn against reading too much into recent statistics. In fact, murder rates remained largely unchanged in 70 cities, and decreased significantly in five. “Even if the uptick continues in some cities, I doubt the pattern will become universal,” Dr. Sampson said....

Alarming levels of violence have become the norm in some of [Chicago's poorest] neighborhoods. While murder rates have continued to decline in the nation’s two largest cities — New York and Los Angeles — Chicago’s has stalled in the last decade. At its peak in the 1990s, New York’s homicide rate was more than seven times as high as it is now.

In Chicago, however, the landscape appears to be worsening, with killings up more than 45 percent so far this year. In August, Chicago had its deadliest month in about 20 years with at least 90 murders — and more homicides so far this year than New York and Los Angeles combined. Areas with “long-standing conditions of alienation, hopelessness, poverty and lack of opportunities” also have the greatest distrust of the police and the greatest complaints of police abuse, said Craig Futterman, a University of Chicago law professor who directs a civil rights and police accountability project at the law school. That means homicides go unsolved, perpetuating a dangerous cycle because people committing the crimes are still out there. In some neighborhoods, the city’s clearance rate, the percentage of homicides in which the police arrest or identify a suspect, is less than 20 percent, he said.

Dr. Futterman said the city’s problems were intensified in recent years by the closing of more than 50 public schools in 2013, the dismantling of public housing throughout the 2000s, and the federal government’s successful prosecution of big gang leaders, which destabilized gang hierarchies, territories and illegal drug markets. While there was violence before, ironically, crime was more contained and easier to police than it is now, he said.

In 2015, Baltimore’s murder rate not only increased the most among the 100 top cities, it also reached a historic high of 55 homicides per 100,000 residents. Its previous record high was in 1993, when the rate was 48. Some experts attribute the sudden spike in violence largely to a flood of black-market opiates looted from pharmacies during riots in April 2015. The death of Freddie Gray, a young black man who sustained a fatal spinal cord injury in police custody, had set off the city’s worst riots since the death of the Rev. Dr. Martin Luther King Jr.

During the riots, nearly 315,000 doses of drugs were stolen from 27 pharmacies and two methadone clinics, according to the Drug Enforcement Administration, a number much higher than the 175,000 doses the agency initially estimated. Most of the homicides in Baltimore were connected to the drug trade, and what happened in 2015 was a result of more people “getting into the game of selling drugs,” said Jeffrey Ian Ross, a criminologist at the University of Baltimore.

Police commanders have said that an oversupply of inventory from looting resulted in a violent battle for customers among drug gangs. “This would have caused a disruption in drug markets, with more people trying to maintain or increase their market share,” Dr. Ross said. “You have new entrants coming into the field, altering the supply and demand of illegal drugs in those neighborhoods,” often leading to increased violence.

If the drug theory holds true, the killings in Baltimore should subside this year. A midyear violent crime survey by the Major Cities Chiefs Police Association showed that while killings were up among 60 large cities, they were slightly down in Baltimore. “I’m not going to say they’re going to return to historic lows, but we hit a peak last year and things are settling themselves out,” Dr. Ross said.

September 11, 2016 in National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Wednesday, September 07, 2016

En banc Third Circuit find as-applied Second Amendment violation in federal firearm prohibition for certain criminals

Long-time readers know that I have been expressing constitutional concerns about broad federal criminal firearm prohibitions even since the Supreme Court in Heller decided that the Second Amendment includes an individual constitutional right to keep arms. Today, the Second Amendment took a bite into federal firearm laws via a fractured Third Circuit opinion that runs 174 pages(!) in a case that might now be headed to the Supreme Court. Here is how the en banc ruling in Binderup v. US AG, No. 14-4550 (3d CIr. Sept. 7, 2016) (available here) gets started:

Federal law generally prohibits the possession of firearms by any person convicted in any court of a “crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). Excluded from the prohibition is “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” Id. § 921(a)(20)(B).  And there is also an exemption for “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored,” where the grant of relief does not expressly preserve the firearms bar. Id. § 921(a)(20).

In United States v. Marzzarella we adopted a framework for deciding facial and as-applied Second Amendment challenges.  614 F.3d 85 (3d Cir. 2010).  Then in United States v. Barton we held that the prohibition of § 922(g)(1) does not violate the Second Amendment on its face, but we stated that it remains subject to as-applied constitutional challenges. 633 F.3d 168 (3d Cir. 2011).

Before us are two such challenges.  In deciding them, we determine how a criminal law offender may rebut the presumption that he lacks Second Amendment rights.  In particular, a majority of the Court concludes that Marzzarella, whose two-step test we reaffirm today, drives the analysis.  Meanwhile, a separate majority holds that the two as-applied challenges before us succeed.  Part IV of this opinion sets out how, for purposes of future cases, to make sense of our fractured vote.

September 7, 2016 in Collateral consequences, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues | Permalink | Comments (0)

Tuesday, September 06, 2016

You be DOJ: after SCOTUS reversal, should former Virginia Gov Bob McDonnell be tried for corruption again?

The "you-be-the-judge"-type question in the post is prompted by this Washington Post article headlined "U.S. attorney’s office recommends putting Robert McDonnell on trial again." Here is the basic context:

Less than three months after the Supreme Court vacated the convictions of former Virginia governor Robert F. McDonnell, the U.S. attorney’s office that prosecuted the Republican has recommended to Justice Department higher-ups that they endeavor to try him again, according to people familiar with the case.

The recommendation from the U.S. attorney’s office in the Eastern District of Virginia does not guarantee that McDonnell will once again have to battle corruption charges in court.  The decision ultimately rests with senior officials at the Justice Department, including the deputy attorney general and possibly the attorney general.  But it is a significant step that demonstrates how despite a Supreme Court ruling upending McDonnell’s convictions and significantly narrowing what can be considered public corruption, the prosecutors who convinced jurors that he was guilty the first time believe they could do it once more.

An attorney for McDonnell, a Justice Department spokeswoman and a spokesman for the U.S. attorney’s office all declined to comment.  Asked in an interview earlier this week whether she would accept the recommendation of prosecutors who handled the case — whatever that might be — Attorney General Loretta E. Lynch said, “That’s working its way through the process, so I’m not able to give you a comment on that.”

Prosecutors have until Sept. 19 to formally inform the U.S. Court of Appeals for the 4th Circuit what they intend to do and — if they are going forward — to set a briefing schedule.

McDonnell and his wife, Maureen, were convicted in 2014 of public corruption charges after jurors concluded that they lent the power of the governor’s office to Richmond business executive Jonnie R. Williams Sr. in exchange for $177,000 in loans, vacations and luxury goods.  Prosecutors alleged that the McDonnells helped Williams specifically by arranging meetings for him with other state officials and allowing him to host an event at the governor’s mansion to promote a product he was trying to sell. In one case, prosecutors alleged, the governor pulled out a bottle of that supplement, Anatabloc, and told other state officials that it worked for him....

Justice Department officials are probably weighing not only whether a case could be brought again but also whether it should. McDonnell’s first trial spanned five weeks, and it came after months of bitter and time-consuming pretrial litigation. Four prosecutors in the Eastern District of Virginia and the Justice Department’s public integrity section were consumed by it.  McDonnell was ultimately sentenced to two years in prison; his wife to a year and a day.

And from the case came a unanimous Supreme Court ruling that experts say makes prosecuting politicians on corruption charges substantially more difficult than it was before.  It is possible more successful challenges could lead to a further narrowing of corruption laws and hamper other investigations.  The Supreme Court’s ruling dealt a critical blow to the case against McDonnell but not an immediately fatal one.  The court decided that jurors were wrongly instructed on the meaning of the term “official act” — the thing that prosecutors were required to prove McDonnell did or tried to do for Williams in exchange for the businessman’s favors — and offered a definition far more narrow than what jurors had considered....

McDonnell’s defense attorneys had wanted the case to be thrown out wholesale on the grounds that prosecutors had presented insufficient evidence of an official act.  But the Supreme Court declined to do that, saying both sides had not had an opportunity to address the question in light of the court’s clarified definition.

And the opinion offered a possible way forward. While setting up meetings or calling other government officials could not be official acts by themselves, Roberts wrote, they could serve as evidence of an agreement to perform such an act — if, for example, jurors concluded the meeting helped show an official was attempting to pressure or advise another official to do something more....

If the Justice Department allows prosecutors to go forward, they will first have to convince the U.S. Court of Appeals for the 4th Circuit that there is enough evidence to proceed — which is no guarantee. That decision itself could be appealed to the Supreme Court.  And if they ultimately go to another trial, prosecutors would have to recalibrate how they present their case, focusing less on the meetings and events themselves than on how they show that Williams and McDonnell had broader plans.  That will not be easy. Roberts noted in the opinion that several McDonnell subordinates had testified at trial that the governor “asked them to attend a meeting, not that he expected them to do anything other than that.”

For a variety of reasons, I am inclined to conclude that the former Gov has, at least in some sense, already been punished enough. And, I am especially inclined to say I am not so keen on having the feds spend a lot more of my tax dollars going hard again after someone who poses no threat to public safety. But perhaps others view public corruption concerns differently, and thus the sincere question in the title of this post.

September 6, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (70)

Tuesday, August 30, 2016

Split en banc Seventh Circuit ruling, previewing coming Beckles debate before SCOTUS, applies Johnson to career-offender guidelines

As regular readers may recall (and as I like to remind everyone), in this post right after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the (now older, pre-reform version) career-offender guideline of the US Sentencing Guidelines.  As I have noted before, the Justice Department has consistently conceded Johnson-based constitutional problems with that guideline, even though there was some prior rulings in some circuits that the federal guidelines could not be attacked based on traditional void-for-vagueness doctrines. 

In the last year, most of the circuit courts, perhaps moved a lot by DOJ 's view, have come to rule that vagueness challenges to the guidelines are proper and have concluded that there are Johnson-based constitutional problems with sentences based on the old career-offender guideline.  But, as noted in this post last September, an Eleventh Circuit panel in US v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (available here), ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  

As I have previously noted, I consider the ruling Matchett suspect; but an amicus brief I helped put together urging en banc review in Matchett has not led to its reconsideration.  As blogged here this past June, we now have the ultimate judicial authority on this issue poised to weigh in: the final Supreme Court order list of last Term included a grant of certiorari in Beckles v. United States, No. 15-8544, which will explore whether Johnson's constitutional holding applies to the residual clause in the older, pre-reform version of the career offender guideline.  Continuing my friendly ways in this setting, I had the honor and pleasure to work with Carissa Hessick and Leah Litman on this new SCOTUS Beckles amicus brief explaining why we think the US Sentencing Guidelines are subject to vagueness challenges and why any ruling that a guideline is unconstitutionally vague should be made retroactive.

Though folks interested in a full understanding of the Beckles case might read all the extant SCOTUS briefing, folks interested in understanding the substantive highlights and the basic arguments on both sides of this intricate and important story can now just turn to the split en banc ruling of the Seventh Circuit yesterday in US v. Hurlburt, No. 14-3611 (7th Cir. Aug. 29, 2016) (available here).  Here are two key paragraphs from the start of the majority opinion (per Judge Sykes) in Hurlburt:

The residual clause in § 4B1.2(a)(2) mirrors the residual clause in the Armed Career Criminal Act (“ACCA”), which steeply increases the minimum and maximum penalties for § 922(g) violations. 18 U.S.C. § 924(e)(2)(B).  One year ago the Supreme Court invalidated the ACCA’s residual clause as unconstitutionally vague.  Johnson v. United States, 135 S. Ct. 2551, 2563 (2015).  The question here is whether Johnson’s holding applies to the parallel residual clause in the career offender guideline.  An emerging consensus of the circuits holds that it does. See infra pp. 16–17.

In this circuit, however, vagueness challenges to the Sentencing Guidelines are categorically foreclosed. Circuit precedent — namely, United States v. Tichenor, 683 F.3d 358, 364–65 (7th Cir. 2012) — holds that the Guidelines are not susceptible to challenge on vagueness grounds.  But Tichenor was decided before Johnson and Peugh v. United States, 133 S. Ct. 2072 (2013), which have fatally undermined its reasoning.  Accordingly, we now overrule Tichenor.  Applying Johnson, we join the increasing majority of our sister circuits in holding that the residual clause in § 4B1.2(a)(2) is unconstitutionally vague.

And here are a few key paragraphs from the dissenting opinion (per Judge Hamilton) in Hurlburt:

The doctrinal foundation of the majority opinion is inconsistent with the overall sweep of Supreme Court decisions following United States v. Booker, 543 U.S. 220 (2005), which held the Guidelines advisory as the remedy for the Sixth Amendment problems with mandatory sentencing rules that require judicial fact‐finding. Since Booker, the Supreme Court has been trying to maintain a delicate balance, recognizing that the difference between “binding law” and “advice” depends on the different standards of appellate review. See Gall, 552 U.S. at 50–51....

If the Supreme Court extends the rationale of Peugh, as the majority does here, and embraces wholeheartedly the concept that the Guidelines are like laws, that result would be difficult to reconcile with the Booker remedy, which spared the Guidelines from Sixth Amendment challenges by making them advisory. The delicate doctrinal balance the Court has tried to maintain since Booker would be threatened by extending vagueness jurisprudence to the advisory Guidelines.

August 30, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)

Feds takeover of "The Playpen" to facilitate child-porn distribution now generating court controversies

In this post from back in January, I noted early reports of a surprising government operation of a notorious "dark-web" child porn website and asked "Will FBI child porn operations generate same controversy as Fast and Furious?". This Seattle Times article highlights that the controversy is starting to find expression in motions by criminal defendants to dismiss prosecutions based on what they call outrageous government actions. Here are the basics:

For two weeks in the spring of 2015, the FBI was one of the largest purveyors of child pornography on the internet. After arresting the North Carolina administrator of The Playpen, a “dark web” child-pornography internet bulletin board, agents seized the site’s server and moved it to an FBI warehouse in Virginia.

They then initiated “Operation Pacifier,” a sting and computer-hacking operation of unparalleled scope that has thus far led to criminal charges against 186 people, including at least five in Washington state.

The investigation has sparked a growing social and legal controversy over the FBI’s tactics and the impact on internet privacy.  Some critics have compared the sting to the notorious Operation Fast and Furious, in which the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed the illegal sales of thousands of guns to drug smugglers, who later used them in crimes.

Defense attorneys and some legal scholars suggest the FBI committed more serious crimes than those they’ve arrested — distributing pornography, compared with viewing or receiving it.  Moreover, the FBI’s refusal to discuss Operation Pacifier and reveal exactly how it was conducted — even in court — has threatened some of the resulting criminal prosecutions.

Last month, a federal judge in Tacoma suppressed the evidence obtained against a Vancouver, Wash., school district employee indicted in July 2015 on a charge of receiving child pornography because the FBI refused to reveal how it was gathered.  Similar motions are pending in other prosecutions in Washington and elsewhere around the country.

During the two weeks the FBI operated The Playpen, the bureau says visitors to the site accessed, posted or traded at least 48,000 images, 200 videos and 13,000 links to child pornography.  At the same time, agents deployed a secret “Network Investigative Technique,” or NIT, to invade their computers, gather their personal information and send it back to the FBI.

According to court documents, between Feb. 20 and March 4, 2015, as many as 100,000 people logged onto the site, which was accessible only by using the anonymous “Tor” browser, which encrypts and routes internet traffic through thousands of other computers to hide the identity of a user.  Tor, which is used for private communications by government officials, lawyers, journalists, judges and others, was thought to be virtually uncrackable until news of the FBI’s operation became public....

In [court] pleadings, the government has defended the operation as the only way to pierce the anonymity of the so-called “dark web” and get at the criminals who dwell there.  Such websites cannot be found by Google or by typing in a web address and are typically operated on the Tor network. “The United States, the FBI, did not create this website,” said Assistant U.S. Attorney Keith Becker, a trial attorney with the DOJ’s Child Exploitation and Obscenity Section, at a Tacoma court hearing in January. “It was created by its users, and administrators, and existed and substantially distributed child pornography long before the government took it over in an effort to actually identity its criminal users.”

Defense attorneys, however, alleged in filings last week that FBI agents actually improved The Playpen site during the two weeks they had control, making it faster and more accessible.  Visitation of The Playpen while under FBI control jumped from 11,000 to 50,000 people a week.  “This is easily the largest domestic use of hacking by law enforcement in U.S. history,” said Mark Rumold, a senior staff attorney at the Electronic Frontier Foundation, a digital freedom and legal services nonprofit in San Francisco. “The problem is that there just aren’t a lot of rules on how they go about it.”

“I will not be surprised at all if we wind up before the U.S. Supreme Court,” he said. Critics also accuse the FBI of committing crimes more serious than it was investigating — distribution of pornography versus receiving it — and say the operation flies in the face of the Justice Department’s pronouncement that a child is re-victimized every time a pornographic photo is viewed or distributed.

Chris Soghoian, the principal technologist and a senior policy analyst with the American Civil Liberty Union’s Speech, Privacy, and Technology Project, said The Playpen investigation bears striking similarities to Operation Fast and Furious. “Except here, it’s child porn,” Soghoian said....

Last month, U.S. District Judge Robert Bryan in Tacoma threw out the evidence in one of the first “Operation Pacifier” prosecutions, involving a Vancouver school employee named Jay Michaud.  The reason: The FBI has refused a court order to reveal to Michaud’s defense attorneys the nature of the Tor vulnerability or how the NIT works.  Michaud is accused of visiting the Playpen site multiple times during the two weeks it was under FBI control and viewing explicit photos of children being sexually abused. He faced up to 20 years in prison. With the evidence tossed out, Michaud’s case likely will be dismissed. The government has appealed the judge’s decision.

A federal judge in Oklahoma reached the same conclusion in an Operation Pacifier case there, and similar motions are pending in dozens of other cases.  Bryan has also allowed two other Operation Pacifier defendants in Washington state to withdraw guilty pleas so they can challenge the government over the issue.

Michaud’s attorney, Colin Fieman, a Tacoma-based federal public defender, is leading a “national defense working group” that is tracking and coordinating challenges to Operation Pacifier cases.... The case has shown that the “FBI cannot be trusted with broad hacking powers,” Fieman said.  “There is no question that the internet poses serious challenges to law enforcement,” Fieman said. But he believes that in its desire to overcome those challenges — and fight the scourge of child pornography — the agency “has lost its moral compass and is willing to ignore the rules and even break the law to extend its reach.”

Michaud and other defendants have also sought to have their charges dismissed due to “outrageous government conduct” over the FBI decision to take it over and leave the site running. “It is impossible to reconcile the Playpen operation with the government’s own view of the harm caused by the distribution of child pornography,” Fieman wrote in motion to dismiss another Washington case filed last week. “The DOJ routinely emphasizes … that possessing and circulating pornographic images re-victimizes the children depicted in them.”...

Judge Bryan rejected that argument in the Michaud case, stating during a January hearing that agents were “trying to catch the bad guys, so to speak.”

“Whether they did it right is a different thing,” he said. “But they didn’t do it wrong as to be grossly shocking or outrageous to violate the universal sense of justice” and warrant dismissing the charges.

Prior related post:

August 30, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Monday, August 29, 2016

As Donald Trump falsely claims inner-city crime "is reaching record levels," will those truly concerned about public safety address new spike in roadway deaths?

GOP Prez candidate Donald Trump took to twitter this morning to propagate false information about modern crime rates by saying in this tweet that "Inner-city crime is reaching record levels."   This Wall Street Journal article, headlined "Trump Says Crime Near Records, but Data Show Murders Well Below ’90s Highs," details why this statement is patently false:

As part of Donald Trump’s declared outreach to black voters, the Republican presidential nominee has painted a dire picture of American “inner cities” rife with crime, and stated he can make them safe. While crime has indeed ticked up recently, it remains near historic lows, especially as compared to, say, the 1980s and 1990s when the streets of Mr. Trump’s hometown of New York City were far more dangerous than today.

Homicides for the first six months of the year hit 2,801 in 61 major cities surveyed by the Major Cities Chiefs Association, up 15% from the year previous. Thirty-six of the 61 departments reported increases in homicides so far this year with Chicago showing the largest jump. As of Sunday, there have been 455 murders in Chicago, up 47% from the same period last year, according to the police. There were 472 murders in all of 2015, about half the all-time high set 25 years ago....

It is hard to remember how violent the country was back then. One example is New York City. The nation’s largest city annually had 2,000 homicides during the violence-prone early 1990s.  This year, the city will likely have about one-sixth of that total.  The nation’s homicide record setting year was 1991, with 24,703 homicides, according to the Federal Bureau of Investigation. The nation’s larger cities had numbers considerably higher than those recorded recently.

I highlight this data not only to provide, yet again, some needed context for concerns expressed about recent the uptick in homicide in a number of notable cities, but also to highlight that even the most violent year in modern American history --- 1991, with 24,703 homicides --- still experienced 10,000+ fewer death than accidents just last year on American roads. The latest data on US traffic deaths comes from this official press release which came out just today, titled "Traffic Fatalities Up Sharply in 2015," from the National Highway Traffic Safety Administration.  Here are some of these details:

The nation lost 35,092 people in traffic crashes in 2015, ending a 5-decade trend of declining fatalities with a 7.2% increase in deaths from 2014. The final data released today by the U.S. Department of Transportation’s National Highway Traffic Safety Administration showed traffic deaths rising across nearly every segment of the population. The last single-year increase of this magnitude was in 1966, when fatalities rose 8.1% from the previous year.

"Despite decades of safety improvements, far too many people are killed on our nation’s roads every year," said U.S. Transportation Secretary Anthony Foxx. "Solving this problem will take teamwork, so we're issuing a call to action and asking researchers, safety experts, data scientists, and the public to analyze the fatality data and help find ways to prevent these tragedies.”

Ten years ago, the number of traffic deaths was nearly 25% higher, with 42,708 fatalities reported nationwide in 2005. Since then, safety programs have helped lower the number of deaths by increasing seat belt use and reducing impaired driving. Vehicle improvements, including air bags and electronic stability control, have also contributed to reducing traffic fatalities.  After a decade-long downward trend, traffic deaths in 2015 increased by nearly one-third compared to 2014....

Pedestrian and pedalcyclist fatalities increased to a level not seen in 20 years. Motorcyclist deaths increased over 8%. NHTSA also noted human factors continued to contribute to the majority of crashes. Almost half of passenger vehicle occupants killed were not wearing seat belts. Research shows almost one in three fatalities involved drunk drivers or speeding. One in 10 fatalities involved distraction. "The data tell us that people die when they drive drunk, distracted, or drowsy, or if they are speeding or unbuckled," said NHTSA Administrator, Dr. Mark Rosekind. "While there have been enormous improvements in many of these areas, we need to find new solutions to end traffic fatalities."

August 29, 2016 in Campaign 2016 and sentencing issues, Data on sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Fourth Circuit ruling highlights circuit split (and general insanity) regarding loss calculations and guideline sentencing in securities fraud case

The Fourth Circuit on Friday handed down a lengthy opinion in US v. Rand, No. 15-4322 (4th Cir. Aug. 26, 2016) (available here), affirming the convictions and sentence of a white-collar defendant "following his involvement in earnings mismanagement and improper accounting transactions while acting as chief accounting officer at Beazer Homes USA, Inc." The sentencing discussion in Rand occupies only six pages of a 35+ page opinion, but those pages include elements of what I see as so very insane about loss calculations and guideline sentencing in security fraud cases.  These background paragraphs from the Rand opinion provide the foundation for my insanity complaint:

U.S. Sentencing Guideline § 2B1.1 sets the offense level for certain fraud offenses and requires an increase based on the loss caused by the offense conduct, in accordance with a table in § 2B1.1(b)(1). An application note instructs that “in a case involving the fraudulent inflation or deflation in the value of publicly traded security,” loss should be calculated based on how the price of a security changed, “after the fraud was disclosed to the market.” U.S.S.G. § 2B1.1 Application Note 3(F)(ix).

At sentencing, the parties debated which of Beazer’s three public disclosures qualified as the date on which the “fraud was disclosed to the market”.... The court determined that the fraud was disclosed in June and August and that the loss to investors following those dates was $135 million. Accordingly, the district court calculated an offense level of 51 for a guidelines range of life imprisonment, capped by the statutory maximum.  The parties agreed that if the October date were used, the resulting loss would be $0. Had the district court used the loss amount following the October disclosure, Rand’s offense level would have been 19, with a range of 30 to 37 months.  The court ultimately varied downward from the guidelines range of life imprisonment and imposed a ten-year sentence.

In other words, it seems here that the facts surrounding the defendant's criminal behavior is not in serious dispute for sentencing purposes, but there is a big legal dispute over how the federal sentencing guidelines take stock of the "loss" cause by this behavior. And, remarkably, for calculating the advisory guidelines sentencing range, one legal take on this issue calls for the defendant to get an LWOP+ sentence, but the other legal take calls for the defendant to get no more than about 3 years' imprisonment. I do not think it is insane for me to assert that it is insane for so radically different guideline prison recommendations to hinge on a technical legal dispute over loss calculations.

Adding to the insanity, at least in my view, is the Fourth Circuit panel's subsequent explanation for why it is disinclined to follow the Second and Fifth Circuits in having the US Supreme Court's "Dura [civil case] loss-causation principles apply to criminal securities fraud cases."  In short form, the Fourth Circuit panel agrees with "the Third, Sixth, and Ninth Circuits [which] have declined to apply Dura in the context of criminal sentencing" largely because concerns about mis-attributing "loss" are distinct in the civil and criminal contexts.  I fully agree that concerns about mis-attributing loss are distinct in the civil and criminal contexts, but it seems backward to make it much easier to attribute loss (as does the Fourth Circuit and other circuits refusing to adopt Dura loss-causation principles) in criminal cases where life and liberty (and not just property) are at stake.

In any event, and perhaps quite wisely, in the Rand case as noted in the case excerpt, the sentencing judge ultimately did not follow the guidelines range of life imprisonment when sentencing the defendant.  The defendant he was sentenced "only" to 120 months' imprisonment, which obviously constitutes a huge downward variance from the guidelines' LWOP recommendation (though also, of course, constitutes a huge upward variance if the Rand’s offense level really should have been 19 with a range of 30 to 37 months' imprisonment).  In this way, I suppose, the sentencing judge in Rand did what he could to stop the guidelines insanity.

August 29, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, August 25, 2016

Ohio Supreme Court concludes it violates due process to treat a juve adjudication like adult conviction at later sentencing

As reported in this local press article, headlined "Court: Juvenile crimes can't enhance adult sentences," the Ohio Supreme Court handed down an interesting sentencing opinion today in Ohio v. Hand, No. 2016-Ohio-5504 (Ohio Aug. 25, 2016) (available here).  Here is the press summary of the ruling:

Prior juvenile convictions cannot be used to escalate the severity of charges or increase the prison sentences of adults, a divided Ohio Supreme Court ruled today.

In a 4-3 decision, the justices declared that treating cases from juvenile court as prior convictions for adult-sentencing purposes is unconstitutional, violating the due-process clauses of the Ohio and U.S. constitutions, and is “fundamentally unfair.”

Justice Judith Ann Lanzinger, writing for the majority, said that juvenile court proceedings, which are civil — not criminal — matters, are designed to protect the development of those under age 18 while they are rehabilitated.

Adult felony sentences, however, are designed to protect the public and punish offenders, she wrote. “In summary, juvenile adjudication differs from criminal sentencing — one is civil and rehabilitative, the other is criminal and punitive,” Lanzinger wrote.

The full opinion is available at this link. And as this final conclusion paragraph highlights, there are lots of interesting elements of the decision that all sentencing fans will want to check out:

Treating a juvenile adjudication as an adult conviction to enhance a sentence for a later crime is inconsistent with Ohio’s system for juveniles, which is predicated on the fact that children are not as culpable for their acts as adults and should be rehabilitated rather than punished.  It is widely recognized that juveniles are more vulnerable to outside pressures, including the pressure to admit to an offense.  Under Apprendi, using a prior conviction to enhance a sentence does not violate the constitutional right to due process, because the prior process involved the right to a jury trial.  Juveniles, however, are not afforded the right to a jury trial.  Quite simply, a juvenile adjudication is not a conviction of a crime and should not be treated as one.

August 25, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

You be the state legislator: how should Ohio respond to new data showing drug overdose deaths reaching another record high in 2015?

Png;base6493e59080e74e719cThe question in the title of this post is the question I plan to be asking in coming days to students in both my first-year Criminal Law class and in my upper-level Sentencing Law & Policy class.  It comes to mind in response to the "breaking news" alert I received from my local Columbus Dispatch linking to this new article reporting on new data under the headline "Drug overdose deaths pushed to another record high in Ohio." Here are some data details:

Drug overdoses took the lives of a record 3,050 Ohioans last year, more than one-third from fentanyl, a super-potent opiate often mixed with heroin. Across Ohio, someone died from a drug overdose every two hours and 52 minutes on average all year long in 2015.

The annual report on unintentional drug overdose deaths released today by the Ohio Department of Health showed the toll from all drugs was 20.5 percent higher than 2014, a disappointment to state officials who have been working for years on many fronts to curb the drug-related carnage.

While heroin deaths rose, fatalities from fentanyl, a synthetic narcotic 30 to 50 times more potent than heroin and up to 100 times stronger than morphine, soared to 1,155 last year, more than double the 503 deaths in 2014. The vast majority involved illegally produced fentanyl, not the prescription drug commonly given to end-stage cancer patients.

The 2015 deaths bring the total to nearly 13,000 overdose victims in the state since 2003. The report was compiled from Ohio's 88 county coroners....

"These are 3,050 tragedies that could have been avoided," said Tracy Plouck, director of the Ohio Department of Mental Health and Addiction Services. "It's very disappointing, but we have a responsibility as leaders in the state to continue to press forward ... This absolutely does not mean we have given up."

Gov. John Kasich, who often spoke passionately about the drug epidemic during his Republican presidential campaign, said in an interview that the state continues "playing a rear guard action ... But I believe we’re making progress. I feel we’re doing every thing we possibly can. We're not looking the other way. We're not putting our heads in the sand. "This is not about politics. This is about life."

Kasich said the drop in opiate pain pills prescriptions is a good sign because people usually become addicted to painkillers before moving to heroin. “We knew when we started this battle five years ago that progress wouldn’t be easy, but we are well prepared to stay on the leading edge of fighting this epidemic thanks to the multi-faceted strategies we have put into place," said Dr. Mark Hurst, medical director of the Ohio Department of Mental Health and Addiction Services.

Public Safety Director John Born said the higher numbers "are motivating because we see the impact of drugs on the quality of life and life itself." Born said troopers already have seized 118 pounds of heroin this year, compared to a total of 304 pounds seized from 2010 to 2015. The report showed Franklin County overdose deaths soared to 279 last year, a 42 percent jump from 196 in 2014. The county leads the state in heroin seizures by the Highway Patrol, 76 pounds from 2010 through 2015.

People 25 to 34 years old were the most common fentanyl victims, with men twice as likely to die from an overdose. Every drug category except prescription pills, alcohol and "unspecified" rose in 2015 compared to 2014. Heroin deaths rose to 1,424 from 1,196 (up 19 percent); prescription opioids (667 from 672, down 1 percent); benzodiazepines (504 from 420, up 20 percent); cocaine (685 from 517 (up 32 percent); alcohol (380 from 383, down less than 1 percent); methadone (108 from 103, up less than 1 percent); hallucinogens (61 from 49, up 24 percent); barbiturates (19 from 6, up 200 percent); and other unspecified (194 from 274, down 29 percent).

Hamilton County reported the most fentanyl-related deaths with 195, followed by Summit, 111; Butler, 104; Montgomery, 102; Cuyahoga, 83; Clermont, 54; Clark, 48; Lucas, 41; Franklin, 40; Stark, 26; Trumbull, 25; Lorain, 21, and Greene, 20.

Dr. Mary DiOrio, medical director of the Department of Health, said the state has taken several steps in the drug fight, including establishing the Start Talking education program aimed at young people, increasing law enforcement efforts, encouraging physicians and pharmacists to use the online drug monitoring system, and creating opioid prescribing guidelines.

The state last year asked the federal Centers for Disease Control and Prevention to step in to study the fentanyl problem. Officials said they will take further action this year, asking state lawmakers to pass tougher laws for selling fentanyl, increasing money for naloxone, expanding treatment options, and adding drug courts.

As regular readers of my blog Marijuana Law, Policy & Reform know, one possible (and surely controversial) legislative response to this problem would be to explore more rigorously and expeditiously whether legalization of marijuana might be a port to consider in this deadly drug overdose Ohio storm.  As noted in this post, well over six month ago, US Senator Elizabeth Warren wrote to the Center for Disease Control and Prevention to request more research on wether marijuana reform might help address the national opiate abuse problem.  I would be very eager to see Ohio official following-up on this front so as to more fully explore the prospect that has been shown in some existing research that making marijuana more readily and legally accessible can contribute usefully to the needed "multi-faceted strategies" for dealing with this pressing public health problem 

Some recent recent related posts from my blogs:

August 25, 2016 in Drug Offense Sentencing, National and State Crime Data, Offense Characteristics, Who Sentences? | Permalink | Comments (0)

Massachusetts judge's probation sentence for sexual assault gives east coast its own Brock Turner

This new New York Times article, headlined "Judge’s Sentencing in Massachusetts Sexual Assault Case Reignites Debate on Privilege," reports on the latest seemingly too-lenient sentence for sexual assault stirring up controversy in the wake of a summer spent discussing the now-infamous Brock Turner case out of California.  Here are the details:

The two women were asleep on a bed after drinking at a party when they were sexually assaulted.  A high school athlete pleaded guilty to indecent assault and battery on a person over 14 in the case, according to court documents. But when a Massachusetts judge sentenced the defendant, David Becker, to two years’ probation last week, he reignited a debate on white privilege, leniency and judicial discretion.

The case is being compared to a rape trial in which a champion student swimmer from Stanford University, Brock Turner, received six months in jail for raping an unconscious woman behind a Dumpster at a party on campus.  The judge in that case, Aaron Persky of the Santa Clara County Superior Court, was the subject of a recall effort in June.

Prosecutors in the Massachusetts case recommended a two-year sentence for Mr. Becker, 18, a former student at East Longmeadow High School, a spokesman for the Hampden County district attorney’s office, James Leydon, said in an email on Wednesday.  Mr. Becker also would have had to register as a sexual offender.

But on Aug. 15, Judge Thomas Estes of Palmer District Court not only ignored the prosecutors’ recommendation, but he also allowed Mr. Becker to serve his probation in Ohio, where the defendant planned to attend college, court documents showed. Judge Estes said Mr. Becker must abstain from drugs and alcohol, submit to an evaluation for sex offender treatment and stay away from the victims, both of whom were 18, they showed.

According to The Republican, Mr. Becker’s lawyer, Thomas Rooke, said, “The goal of this sentence was not to impede this individual from graduating high school and to go onto the next step of his life, which is a college experience.”

“He can now look forward to a productive life without being burdened with the stigma of having to register as a sex offender,” Mr. Rooke said, according to The Republican. Mr. Rooke could not be reached by telephone on Wednesday.

After Mr. Becker’s sentence was made public, a petition went up online seeking names to present to state lawmakers to remove the judge. It had garnered more than 10,000 signatures by Wednesday afternoon. “This is yet another instance of a white athlete receiving a slap on the wrist for a violent sexual crime, following on the heels of the Brock Turner case in California,” the petition said.

Mr. Becker was originally charged with two counts of rape and one count of indecent assault, according to the documents.  According to police reports, Mr. Becker told investigators that when one of the women “didn’t protest,” he assumed it was “O.K.,” but he denied having any physical contact with the other woman, according to the documents.

In a text message to one of the victims the next day, Mr. Becker apologized for the assault, the court documents said. The victim responded with a text telling him, “Don’t even worry about it,” but later told the police that she had said that because “she did not know what else to say,” according to a police report presented in court. The police declined to comment on Wednesday.

The sexual assault case is one of several recent episodes that activists say show a troubling trend toward lenient punishment for young white perpetrators.  In one case in Colorado, a former University of Colorado student, Austin Wilkerson, 22, who was convicted of raping a female student in 2014, was sentenced to two years on work or school release and 20 years to life on probation.  He also must register as a sex offender.  Prosecutors said the victim had consumed too much alcohol at a party, The Daily Camera reported. “No prison time for sexual assault sends a terrible message,” the Colorado attorney general, Cynthia Coffman, said on Twitter after the decision....

Colby Bruno, a senior legal counsel with the Victim Rights Law Center in Massachusetts, said that in the 12 years she had been with the center, she has seen her share of cases involving elements of racial privilege.  Even more so, she has observed a bias in favor of male suspects in court cases involving violence against women, she said in a telephone interview, adding, “This is basically business as usual for the courts.”

“There is an element in each of the cases of entitlement on the part of the perpetrators. It is something I have seen across the board in the cases that I have represented,” she said.  “Giving perpetrators a second chance is not a good idea,” Ms. Bruno added. “This is a felony, not a mistake, and it has to be treated like that.”

August 25, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Wednesday, August 24, 2016

Interesting exploration of possible harms of "Gateway Crimes"

Murat Mungan has this interesting new paper up at SSRN titled simply Gateway Crimes."  Here is the abstract:

Many who argue against the legalization of marijuana suggest that while its consumption may not be very harmful, marijuana indirectly causes significant social harm by acting as a “gateway drug,” a drug whose consumption facilitates the use of other, more harmful, drugs.  This article presents a theory of “gateway crimes”, which, perhaps counterintuitively, implies that there are social gains to decriminalizing offenses that cause minor harms, including marijuana-related offenses.

A typical gateway crime is an act which is punished lightly, but, because it is designated as a crime, being convicted for committing it leads one to be severely stigmatized. People who are stigmatized have less to lose by committing more serious crimes, and, therefore, the criminalization of these acts increases recidivism.  Thus, punishing “gateway crimes” may generate greater costs than benefits, and this possibility must be kept in mind when discussing potential criminal justice reforms. This “gateway effect” does not require that, but, is strongest when, people underestimate, or ignore, either the likelihood or magnitude of the consequences associated with being convicted for a minor crime.  Therefore —  if potential offenders in fact underestimate expected conviction costs —  this theory not only implies previously unidentified benefits associated with decriminalizing acts that cause questionable or minor harms, but also benefits associated with making the costs associated with convictions more transparent.

August 24, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

"Defining Violence: Reducing Incarceration by Rethinking America's Approach to Violence"

Image-fullThe title of this post is the title of this important and timely new report by the Justice Policy Institute.  Here is an extended passage from this effective JPI report's effective introduction:

Statutes abstractly categorize behavior as violent or nonviolent. How might these categorizations, along with the workings of the justice system, combine to limit reform efforts designed to reduce our reliance on incarceration? Does statistical reporting obscure critical facts that change agents, policymakers, and the public need to consider when designing policies to significantly reduce the use of incarceration?

In Defining violence: reducing incarceration by rethinking America’s approach to violence, the Justice Policy Institute (JPI) explores how something is defined as a violent or nonviolent crime, how that classification affects how the justice system treats a person, and how all that relates to the use of incarceration.  The report summarizes the relationship of offenses to the use of incarceration and how that varies by:

  • How violent offenses are categorized from place to place: An act may be defined as a violent crime in one place and as a nonviolent crime somewhere else.  The law in a particular jurisdiction may define something as a nonviolent crime, but a corrections department may define the same behavior differently.  For example, although burglary rarely involves person-to-person behavior, it is defined as a violent crime in some places and can lead to a long prison sentence;

  • How context matters in the way a violent or nonviolent offense is treated by the justice system: Sometimes a behavior that would not normally be a defined as a “crime of violence” or result in a long prison term can mean a much longer term of imprisonment when a gun is involved; and

  • The disconnection between the evidence of what works to make us safer and our current policies: People convicted of some of the most serious offenses —  such as homicide or sex offenses —  can have the lowest recidivism rates, but still end up serving long prison terms.

These three factors overlap with each other in a way that brings into sharp relief the fact that the nation will fail to make meaningful reductions in the use of incarceration unless we revamp our approach to violent crime and how the justice system treats people convicted of a violent crime.  How a behavior is treated by the courts can occur in isolation from the research that demonstrates someone’s ability to change, and brings competing values around what is proportionate and just response to behavior.

This is a complicated political and systems reform issue.  When politicians support bills that focus solely on nonviolent crimes, they can point to polling and voter-enacted ballot initiatives that show that the public supports their agenda. In some places, policymakers have vocally rejected justice reform bills and ballot initiatives if there was a hint that someone convicted of a violent crime might benefit from the change.

When someone has been the victim of a violent crime, they may want to see that person locked up. Scholars have noted that if the U.S. wants to treat the root causes of violence in the communities most affected by serious crime, it will require a significant investment of public resources —  more than what we could currently “reinvest” from downsizing and closing prisons and jail.

To help unpack some of the complicated issues at play, the Justice Policy Institute (JPI) analyzes how behaviors are categorized under sometimes-arbitrary offense categories, explores the larger context that exists when something is classified as a violent or nonviolent offense, and shows the consequences for the justice system and the use of incarceration.  This report also looks at how the debate over justice approaches to violent crime, nonviolent crime, and incarceration is playing out in legislatures and how justice reform proposals are debated.

August 24, 2016 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Friday, August 19, 2016

US Sentencing Commission finalizes its priorities for the guideline amendment cycle ending May 1, 2017

This new Federal Register notice from the US Sentencing Commission reports on the results of the USSC's meeting yesterday in which the Commission "identified its policy priorities for the upcoming amendment cycle."  Here are what I consider to be highlights from the fourteen listed priorities:

[T]he Commission has identified the following priorities:

(1) Continuation of its work with Congress and other interested parties on statutory mandatory minimum penalties to implement the recommendations set forth in the Commission’s 2011 report to Congress, titled Mandatory Minimum Penalties in the Federal Criminal Justice System, including its recommendations regarding the severity and scope of mandatory minimum penalties, consideration of expanding the “safety valve” at 18 U.S.C. § 3553(f), and elimination of the mandatory “stacking” of penalties under 18 U.S.C. § 924(c), and to develop appropriate guideline amendments in response to any related legislation.

(2) Continuation of its multi-year examination of the overall structure of the guidelines post-Booker, possibly including recommendations to Congress on any statutory changes and development of any guideline amendments that may be appropriate. As part of this examination, the Commission intends to study possible approaches to (A) simplify the operation of the guidelines, promote proportionality, and reduce sentencing disparities; and (B) appropriately account for the defendant’s role, culpability, and relevant conduct.

(3) Continuation of its study of approaches to encourage the use of alternatives to incarceration.

(4) Continuation of its multi-year study of statutory and guideline definitions relating to the nature of a defendant’s prior conviction (e.g., “crime of violence,” “aggravated felony,” “violent felony,” “drug trafficking offense,” and “felony drug offense”) and the impact of such definitions on the relevant statutory and guideline provisions (e.g., career offender, illegal reentry, and armed career criminal), possibly including recommendations to Congress on any statutory changes that may be appropriate and development of guideline amendments that may be appropriate.

(5) Continuation of its comprehensive, multi-year study of recidivism, including (A) examination of circumstances that correlate with increased or reduced recidivism; (B) possible development of recommendations for using information obtained from such study to reduce costs of incarceration and overcapacity of prisons, and promote effectiveness of reentry programs; and (C) consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study....

(9) Study of offenses involving MDMA/Ecstasy, synthetic cannabinoids (such as JWH-018 and AM-2201), and synthetic cathinones (such as Methylone, MDPV, and Mephedrone), and consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study.

(10) Possible consideration of whether the weapon enhancement in §2D1.1(b)(1) should be amended to conform to the “safety valve” provision at 18 U.S.C. § 3553(f) and §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases)....

(14) Consideration of any miscellaneous guideline application issues coming to the Commission’s attention from case law and other sources, including possible consideration of whether a defendant’s denial of relevant conduct should be considered in determining whether a defendant has accepted responsibility for purposes of §3E1.1.

August 19, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, August 18, 2016

New York Times editorial pushes for "Mercy on Texas’ Death Row" for condemned getaway driver

Today's New York Times has this notable new editorial discussing a notable capital case in Texas under the headline "Rare Chance for Mercy on Texas’ Death Row." Here are excerpts:

When it comes to capital punishment, there is not much official mercy to be found in the state of Texas.  As 537 death row inmates were executed there over the last 40 years, only two inmates were granted clemency.  The last commutation to life in prison occurred nine years ago, when Gov. Rick Perry, despite his formidable tally of 319 executions, chose to make an exception and spare a man convicted of murder under the state’s arcane and patently unfair “Law of Parties.”

This law in effect holds that someone waiting outside at the wheel of a getaway car deserves the same capital punishment as his associate inside who shoots and kills a store clerk.  This is the rough equation that now finds Jeffrey Wood on death row in Texas, 20 years after his involvement in just such a crime.  The actual killer was executed in 2002; Mr. Wood faces execution next Wednesday as a somehow equally culpable party, unless the state commutes his sentence to life in prison.

The Law of Parties has been on trial as much as Mr. Wood has in the arduous criminal justice process in which he faces death. With an I.Q. of 80 and no criminal history, Mr. Wood, who was 22 then, was initially found by a jury to be incompetent to stand trial. But the state persisted, and he was convicted in a slipshod proceeding in which no mitigating evidence or cross-examination was attempted in his behalf during the crucial sentencing hearing....

The theory underpinning the Law of Parties — that an accomplice deserves to die even though he did not kill the victim — has been abandoned as difficult to apply if not unjust in most state jurisdictions in recent decades.  It holds that an accomplice should have anticipated the likelihood of a capital murder and deserves the ultimate penalty.  Since the death penalty was restored in 1976, there have been only 10 executions in six states under accomplice culpability laws, in which defendants did not directly kill the victim, according to Texas Monthly.  Five of them have been in Texas. Jared Tyler, Mr. Wood’s lawyer, who specializes in the state’s death row cases, says he has never seen a sentence of execution “in which there was no defense at all on the question of death worthiness.”

This is just one of many grounds for the clemency that four dozen evangelical leaders have recommended to avoid a gross injustice. The state parole board would have to make this recommendation, with the final decision by Gov. Greg Abbott, who has not granted clemency in 19 executions.

The Law of Parties stands as a grotesque demonstration of how utterly arbitrary capital punishment is. The only true course for justice in Texas is for the law to be scrapped and Mr. Wood’s life to be spared.

UPDATE:  For more interesting and timely coverage of this case, check out this new Texas Tribune article headlined "State Rep. Leach Tries to Stop Jeff Wood Execution."  Here is how the article gets started:

It’s not often that a staunch conservative loses sleep over imposition of the death penalty, but state Rep. Jeff Leach, R-Plano, says he is up nights over the impending execution of Jeff Wood.

The two-term legislator has spent the past week poring over court documents and speaking with the governor’s office and Texas Board of Pardons and Paroles, hoping to prevent what would be the state’s seventh execution of the year. Wood is set to die by lethal injection Aug. 24.  “I simply do not believe that Mr. Wood is deserving of the death sentence,” Leach told the Tribune. “I can’t sit quietly by and not say anything.”

August 18, 2016 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Wednesday, August 17, 2016

Federal district judge assails prosecutors for not seeking more prison time for cooperators in government corruption cases

This local article from New Jersey, headlined "Judge blasts U.S. attorney during sentencing of Guttenberg contractor in theft," reports on a federal judge expressing concern that federal prosecutors are being too soft in sentencing recommendations in a notable white-collar setting.  Here are the details:

A federal judge repeatedly criticized the U.S. Attorney's Office in Newark during a hearing Wednesday, scolding prosecutors for seeking light sentences -- sometimes with no prison time -- for people who plead guilty to corruption and related offenses.

Before sentencing a Guttenberg contractor who conspired with Union City officials to steal federal housing funds, U.S. District Judge William H. Walls spent several minutes upbraiding the U.S. Attorney's Office for a "ridiculous" pattern of bringing corruption cases and then seeking lenient sentences for defendants who plead guilty.

"That is so ridiculous it makes no sense in the context of true law enforcement," Walls said from the bench. "This is sheer legal nonsense." "If you swindle the government, regardless of your status, you should go to jail," he added.

Despite his protests, Walls agreed in the end with prosecutors, who had filed motions to avoid mandatory sentencing guidelines, and sentenced the defendant in Wednesday's case to three years of probation instead of prison.

Walls, a senior judge appointed by President Bill Clinton, is also presiding over the corruption trial of U.S. Sen. Robert Menendez.  Attorneys for Menendez, D-Paramus, deny the charges and have sought to quash the indictment. Justice Department officials in Washington are handling that prosecution, not the U.S. Attorney's Office in Newark.

U.S. Attorney Paul Fishman has made corruption cases a hallmark of his tenure and his office is prosecuting Bill Baroni and Bridget Anne Kelly, two former associates of Governor Christie's who have been implicated in the George Washington Bridge lane-closure case.  Christie, who was U.S. attorney before Fishman, also made corruption cases a highlight of his term.

Since President Obama appointed him in 2009, Fishman has secured convictions for several top officials including the former chairman of the Bergen County Democratic Organization, Joseph Ferriero; a former Trenton mayor, Tony Mack; and the former chairman of the Port Authority of New York and New Jersey, David Samson, who is also a former New Jersey attorney general.

A spokesman for Fishman, in response to Walls's comments, noted that defendants who cooperate with prosecutors are entitled to "some consideration" at sentencing.  “It is firmly rooted in our system of justice that a defendant who admits his own guilt and cooperates in the government's investigation or prosecution of criminal conduct is entitled to some consideration at the time of sentencing," said Fishman spokesman Matthew Reilly.  "It is the prosecution's responsibility to bring that information to the attention of the court, and the court has the discretion to determine how much weight to give it.”

Darren Gelber, a lawyer at the Wilentz, Goldman and Spitzer firm and a former president of the Association of Criminal Defense Lawyers of New Jersey, said "Judge Walls has a reputation of being a tough sentencer."

"I'm sure he like others has become increasingly frustrated with the perception that corruption is all too prevalent in our state," said Gelber, who was not involved in Wednesday's case.

The U.S. Attorney's Office charged that Leovaldo Fundora, the owner of Falcon Remodeling of Guttenberg, conspired with two public officials in Union City to steal federal housing funds. The two Union City officials instructed Fundora to collude with two other businesses, which are unnamed in court papers.... Prosecutors estimated losses from the scheme between $120,000 and $200,000.

"I deeply regret what I have done," Fundora told the court as his wife and daughter sat behind him. "I know it's going to take a long time to get my reputation back, but I will try my best."  His attorney, Raymond Flood, said Fundora was a Cuban immigrant who had been working since he was 12 years old. "He's been a criminal for four years," Walls noted, "four years that he swindled the government."

Fundora pleaded guilty in 2013 and his theft conviction carried a maximum sentence of 10 years and a $250,000 fine.  At Fundora's sentencing hearing Wednesday, prosecutors recommended a much lighter sentence and Walls, despite his critical comments, agreed.  The U.S. Attorney's Office filed what is known as a "5K1.1" motion, asking the judge to depart from the federal sentencing guidelines to impose a lighter punishment on Fundora.  Walls sentenced Fundora to three years of probation, ordered him to pay $73,753 in restitution, and imposed a $2,000 fine.

"This is absolutely ridiculous and I will not do it again," Walls told the assistant U.S. attorney handling the case, Barbara Llanes.  Walls said businesses that win contracts from government agencies should hold themselves to a higher standard.  He suggested the U.S. Attorney's Office was more interested in getting favorable conviction statistics than pursuing tough punishments.  "The society is being swindled, and your office seems to care about notching wins," the judge told Llanes.

Responding to Walls's questions, Llanes noted that the two Union City public officials -- Johnny Garces and Washington Borgono, who both pleaded guilty -- have not been sentenced.  Prosecutors would not file "5K1.1" motions for them, she added.

August 17, 2016 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0)

Tuesday, August 16, 2016

"Want to Stop Gun Violence? End The War On Drugs"

The title of this post is the title of this notable commentary by Jay Stooksberry that backs up an effective argument with lots of helpful links to support his claims.  Here are excerpts (with links from the original):

Every December 5th, American beer, wine, and spirit enthusiasts celebrate Repeal Day.  It was on this day in 1933 that the United States officially passed the 21st Amendment, effectively ending the failed “noble experiment” known as Prohibition.  This was not only a good day for liberty and libations; it also marked the end of a violent era in American history.

The transport and sale of illicit booze became a prolific criminal enterprise backed by well-armed, violent gangs. The result: a homicide rate in the United States that steadily climbed between 1920 and 1933.  In addition, the rise of “victimless crimes” — namely, consumption or possession of alcohol — added to the already overburdened judicial system.  Furthermore, alcohol consumption — what Prohibition laws sought to minimize — actually increased nearly 70 percent.

To call Prohibition a failure would be an understatement.   Repealing Prohibition destroyed the monopoly on alcohol maintained by organized crime. Disempowering the black market produced a noticeable decline in the homicide rate. In fact, homicides continued to diminish each year for eleven years straight.

Fast forward 82 years, and we are in the midst of Prohibition 2.0. This time we call it the “War on Drugs,” and its impact is even more deadly. If concerned citizens want to get serious about reducing gun violence, then they should be encouraged to focus less on policies that are ineffective — “assault weapons” bansgun buyback programs, and outright confiscation — and focus more on ending our failed, four-decade long, overly-militarized, trillion-dollar battle against narcotics.

Let’s put gun violence into perspective. There is no doubt that gun violence is a problem. Guns are used in nearly three-fourths of all American homicides.  What typically brings gun control to the forefront of our political dialogue is the recurring tragedy of a mass shooting.  However, mass shootings receive a disproportionate amount of media attention considering how much they actually contribute to our national homicide rate.

According to Mass Shooting Tracker, in 2014, mass shooting incidents resulted in the deaths of 383 people—about 3% of total gun homicides for the year. In comparison, the violence caused by the Drug War overshadows the bloodshed of mass shootings. Though difficult to quantify due to inconsistent reporting, estimates of drug-related homicides reach as high as 50 percent of the total homicides in the United States....

Without legal mechanisms in place, the only option for arbitration in the black market is violence.  This violence takes many forms: turf wars between drug suppliers where civilians are also caught in the crossfire; no-knock police raids (sometimes occurring at the wrong house) where suspects are gunned down; drug addicts assaulting others to secure money for their addiction. The multi-faceted nature of the violence makes the task of fully grasping the available data difficult.

The violence of the American Drug War has even spilled over internationally — primarily in Latin America.  Between 2007 and 2014, Mexican authorities estimates that 164,000 homicides were the result of cartel violence.  For perspective, during the same time period, civilian deaths in Afghanistan and Iraq totaled 103,000 combined....

Despite our backwardness regarding most drug policies, the United States is ahead of most of the international community when it comes to the legalization of cannabis—and we are witnessing some of the positive effects of those efforts.  Colorado legalized recreational marijuana with Amendment 64 in 2013, resulting in a “green rush” of population growth. Despite the increase in population, Denver police reports indicate a drop in overall crime, including a 24 percent drop in reported homicides.

Granted, the Colorado experiment with legalized marijuana and its benefits is still new. Plus, it is difficult to demonstrate correlation with such a small sample of data. However, there is a distinct correlation between increased policing of controlled substances and the escalating violence of the black market in those substances. The Independence Institute examined arrest and homicide rates throughout the 20th century and concluded that the greatest contributor to violence is “a violent black market caused by the War on Drugs today, and Prohibition in the 1920’s.”

August 16, 2016 in Drug Offense Sentencing, National and State Crime Data, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)