Sentencing Law and Policy

A potent SCOTUS tag-team on the rule of lenity

This post at SCOTUSblog reporting on the filing of two new amicus briefs in support of cert in a rule of lenity case had me recalling some famed pro-wrestling tag teams.  Here are the details: "[T]wo cert.-stage amicus briefs were filed [in support of the defendants in Kay v. US, No. 07-1281]: this one on behalf of the U.S. Chamber of Commerce, and this one on behalf of the National Association of Criminal Defense Lawyers." 

As this prior SCOTUSblog post details, Kay raises these two notable issues in the context of a federal criminal prosecution under the Foreign Corrupt Practices Act:

First, is the omission of an element of an offense structural error or instead subject to harmless error review?...

Second, what degree of statutory ambiguity triggers the rule of lenity, and when will legislative history suffice to avoid application of lenity?

With the gruesome twosome of the Chamber of Commerce and the NACDL fighting for the defendants here, the feds may be in some serious trouble if the Justices decide that this case should be resolved through a SCOTUS cage match.

Feds agree to probation for tax cheat billionaire!?!?!

After seeing this story at Forbes, headlined "U.S. Agrees Guilty Billionaire Shouldn't Go to Jail," I may have to rethink my assumption that federal prosecutors never are willing to go soft on any white-collar criminals.  Here are the details:

[T]he sentencing of billionaire Orange County real estate developer Igor M. Olenicoff, scheduled to take place in a federal court in California April 14, might not make for good scared-straight headlines. In a new court filing, government prosecutors agree that Olenicoff, who pleaded guilty in December to one felony count of filing a false 2002 U.S. individual income tax return, should get off on probation.

In his plea agreement, Olenicoff, 65, admitted he lied on his 1998 through 2004 tax returns when he answered "no" to a question asking if he had ownership or authority over any financial accounts in foreign countries.  In fact, he had accounts in the Bahamas, Switzerland, Liechtenstein and Britain. As part of the plea deal, Olenicoff paid $52 million in back federal taxes, interest and civil fraud penalties and agreed to bring all the money in his foreign accounts (believed to total in the hundreds of millions) back to the U.S.

Forbes estimates the self-made, Russian-born Olenicoff, who came to the U.S. at age 15, is now worth $1.6 billion.  While the false-tax-return charge is punishable by up to three years in jail, Olenicoff's deal with prosecutors, together with federal sentencing guidelines, made it unlikely he would get more than six months.  Then last month, a U.S. probation officer filed a pre-sentencing report recommending Olenicoff get off with just one year of probation and a $3,500 criminal fine.  While that report is not a public document, prosecutors' response to it is.

In a filing this week, prosecutors said they didn't object to probation, but urged that the probation last three years--to ensure Olenicoff's "future compliance with Internal Revenue laws. " The prosecutors noted that while Olenicoff has fully complied with the terms of his plea deal, his "use of off-shore bank accounts and the transferring of assets to these accounts dates back to at least 1992."

Edward M. Robbins Jr., Olenicoff's attorney, said the prosecutors' position makes it "highly unlikely" that the judge will sentence Olenicoff to any prison time, although he still might order home detention. But Robbins, a former federal tax prosecutor who is now a partner with Hochman, Salkin, Rettig, Toscher & Perez, in Beverly Hills, rejected any suggestion that Olenicoff is getting off lightly and insisted the felony conviction alone would indeed have a strong deterrent effect.

I think what irks me about this story is the idea that a defendant apparently worth $1.6 billion is going to only face a fine of a few thousand dollar.  Especially if he is to avoid all prison time, how about a fine of, say, .1% of his worth.  Even letting this fellow keep 99.9% of his fortune could still produce a more fitting fine of $1.6 million.  Also, how about some community service requiring him to help low and middle income tax payers set up lawful tax shelters?

You make the call: what is a just and effective sentence for Sister Barbara Markey?

Since most judges likely have no experience sentencing nuns, I hope readers will use the comments to help out the Nebraska judge who will soon have to sentence Sister Barbara Markey.  Here is the AP story providing the background:

A Roman Catholic nun accused of stealing from the Omaha Archdiocese and gambling much of the money away has pleaded guilty to theft.  An attorney says Sister Barbara Markey pleaded Monday to theft of more than $1,500.  Defense attorney J. William Gallup says she also agreed to pay $125,000 in restitution.

Markey faces up to 20 years in prison when she is sentenced in July.

Markey is an internationally known speaker.  She was fired in 2006 as director of the archdiocese's family life office after an audit found irregularities. The audit found that Markey spent $307,545 for her own use or without documentation.  Prosecutors say Markey used the money to cover gambling forays, gifts and trips.

Regular readers will not be surprised to hear that I do not think a long prison term makes much sense for Sister Barbara Markey.  But I am still thinking about what would make sense.  Suggestions, dear readers?

A tough sentence (but not tough enough?) for tenth DWI offense

Regular readers know that I am often complaining that repeat drunk drivers often do not seem to get tough enough sentences.  So I was pleased to get this local story from Texas about one state sentencing judge finally getting really tough on a defendant for his TENTH conviction for DWI.  Here are the details:

A Taylor man was sentenced to 60 years today for his 10th driving while intoxicated conviction. Anthony Lynn Falco, 54, was arrested in June for failing to use a turn signal while driving north on Mays Street in Round Rock.

He admitted that he’d been drinking beer at a Round Rock bar and failed field sobriety tests. Falco refused a breath sample, but a blood search warrant was obtained, according to a release by Williamson County District Attorney John Bradley.  The sample showed that he had more than two times the legal limit of alcohol in his blood, Bradley said.

Falco has nine previous DWI convictions, the first of which came in 1979, Bradley said. On his last three DWI convictions, he also served prison terms.  He will not be eligible for parole for 15 years.

Candidly, I am a bit troubled that this very dangerous repeat criminal will ever be eligible to be free to drive again, but maybe by 2023 we will have developed a technology that can truly ensure that this repeat offender is completely incapacitated and unable to put innocent lives at risk yet again.  If not, I hope he does not get granted parole.

Some related posts about getting tougher on drunk drivers:

Some related posts:

• Tougher (but still not tough enough?) on DUI
• Shouldn't we be much, much tougher with drunk drivers?
• Getting tougher on drunk driving
• Why do we worry so much more about sex offenders than drunk drivers?
• Technology versus toughness to combat drunk driving
• Undue leniency for drunk drivers?
• More discussion of leniency for drunk drivers
• Why do we worry so much more about sex offenders than drunk drivers?
• Is capital punishment for drunk driving morally required?
• Technology versus toughness to combat drunk driving

Research and data on prostitution, punishment and shaming sanctions

This NPR segment, titled "The Legality of Prostitution," got me wondering about research on prostitution and punishment.  The NPR piece referenced this interesting recent paper, titled "An Empirical Analysis of Street-Level Prostitution," which is authored by Steven Levitt and Sudhir Alladi Venkatesh. The paper is focused on just the economics of prostitution in Chicago, and it has lots of interesting findings.  This passage especially caught my eye:

We estimate that prostitutes are officially arrested only once per 450 tricks, with johns arrested even less frequently. Punishment conditional on arrest is limited — roughly 1 in 10 prostitute arrests leads to a prison sentence, with a mean sentence length of 1.2 years among that group. For many johns, perhaps the greatest risk is the stigma that comes with having a mug shot posted on the Chicago Police Department web page.  There is a surprisingly high prevalence of police officers demanding sex from prostitutes in return for avoiding arrest.  For prostitutes who do not work with pimps (and thus are working the streets), roughly three percent of all their tricks are freebies given to police.

For those interested in a very different type of perspective on the oldest profession, I also found this interesting website titled "Prostitution Research & Education."  The website has a strong anti-prostitution message, and it includes this page which states:

In order to understand prostitution, it is necessary to understand:

1. lethal gender inequality
2. incest and other childhood sexual assault
3. poverty and homelessness
4. the ways in which racism and colonialism are inextricably connected with sexism in prostitution
5. domestic violence, including rape
6. post-traumatic stress disorder, depression, mood and dissociative disorders as consequences of prostitution
7. drug and alcohol addiction
8. the fact that prostitution is a global business which involves interstate and inter-country trafficking as a necessary part of its profitable operation
9. in non-dominant states — the ways in which economic development programs erode traditional ways of living
10. the need for culturally-relevant treatment
11. the ways in which diverse cultures normalize and promote prostitution
12. stripping, exotic dancing, nude dancing, table dancing, phone sex, trafficking, child and adult pornography, lap dancing, massage brothels, and peep shows as prostitution

SCOTUS Cuellar case continues Term of statutory interpretation and sentencing

For legal process and statutory interpretation geeks like me, the criminal cases on the SCOTUS docket this Term are so intriguing.  As I have noted before, the Court has taken up a number of ACCA sentencing statutory interpretation cases this Term, and a number of other major sentencing cases —  such as Gall and Kimbrough and even capital cases like Baze and Medellin and Kennedy — can be viewed as matters concerning the impact of statutes and the legislative process.

The focus on statutory interpretation today is clear in Cuellar v. U.S. (06-1456), which concerns an issue effectively summarized this way at SCOTUSwiki:

[H]ere is the question raised: “Whether merely hiding funds with no design to create the appearance of legitimate wealth is sufficient to support a money laundering conviction?”  Relying on dictionary definitions and legal argument, the petition contends that “as a matter of plain English, to ‘launder’ money ‘is to disguise illegally-obtained money by making it appear legitimate’ ” — in other words, to make “dirty money” look “clean.”

Though seemingly about the definition of a federal offense, this passage from the short amicus brief from the NACDL spotlights the sentencing aspects of this case:

The expansive and unwarranted interpretation adopted by the Fifth Circuit below ... improperly expands the scope of an already broad statute far beyond its intended reach.  Section 1956 has become a vehicle for increasing potential sentences substantially in excess of what otherwise would be permissible for the underlying conduct, without any showing of the aggravated societal harm that the money laundering statute was designed to redress.  If this over-expansive interpretation is allowed to stand, criminal defendants unjustly will face longer sentences and will be forced to weigh the potential for such sentences in considering whether to plead guilty.

As I love to say, everything always comes back to sentencing issues.

UPDATE: The transcript of today's argument is now available here.

What sentence will (and should) Bill Lerach get?

As detailed in this Reuters story, class-action attorney Bill Lerach has lots of notable supporters as he faces sentencing on Monday:

Famed San Diego class-action attorney William Lerach has asked a federal judge to sentence him to a year in prison and to let him serve half that stretch at home as punishment for his role in a client kickbacks scheme, according to court papers filed Friday. 

Scores of supporters, including Ralph Nader, commentator Ben Stein and U.S. Sen. Carl Levin, filed letters praising Lerach with the court of U.S. District Judge John Walter, who is set to sentence Lerach Monday. Prosecutors have asked Walter to sentence Lerach, best known for winning more than $7 billion in legal settlements on behalf of Enron investors, to two years in prison....

The federal probation office recommended a sentence of 15 to 21 months, two to three years of supervised release and a fine of $4,000 to $40,000 for Lerach.  Defense attorney John Keker argued in a sentencing memo filed Friday that his client deserves a lighter sentence in light of “his exemplary character and compelling personal history and his continuing value to the community.”  The sentencing memo excerpted at length the letters of support, which came “from gardeners to judges, adversaries to colleagues, family members to friends,” as well as investors who recouped lost funds thanks to Lerach, Keker wrote.

Interestingly, as detailed in this New York Sun article, one of the letter submitted on Lerach's behalf has some notable comments about the practice of paying plaintiffs:

A prominent class-action lawyer facing sentencing today for secretly paying plaintiffs to file securities lawsuits, William Lerach, is suggesting that the under-the-table practice was widespread and was not isolated to the firm he helped run for decades, Milberg Weiss.  Lerach's claim that the payments were commonplace came in a letter one of his family members filed with Judge John Walter, who is scheduled to impose the sentence during a hearing this morning at federal court in Los Angeles....

"I did something wrong and I have to pay the price. Everybody was paying plaintiffs so they could bring their cases. I thought I had to do it, too," Lerach recently told one of his children, according to the letter. "After they changed the law, I stopped doing it, but other people at my firm kept doing it.  I didn't know they were … I made the wrong decision and I have to go to jail."

The letter containing Lerach's comments on the scope of the secret payments was among those filed under seal, but an excerpt from it appeared in a defense pleading that was not properly redacted.

Related prior post:

• Feds saying harm to reputation justifies a below-guideline sentence for Bill Lerach

UPDATE:  The WSJ Law Blog has this post on the Lerach sentencing, as well as this link to the "public version" of his sentencing memorandum filed in the district court.

Lynne Stewart appeal raising lots of notable issues

As detailed in press reports assembled here and here by How Appealing, there were "intense arguments Tuesday at the 2nd U.S. Circuit Court of Appeals" over the federal conviction and sentence of defense attorney Lynne Stewart.   This New York Law Journal piece provides many highlights:

Defense attorney Joshua Dratel, trying to win a reversal of Stewart's 2005 conviction for providing material support to a terrorist conspiracy, claimed that Stewart's release of a statement by imprisoned Sheik Omar Abdel Rahman to his followers in the outlaw Islamic Group was protected by the First Amendment.  But Anthony Barkow, an Assistant U.S. Attorney in the Southern District of New York who was part of the government's team during the trial before Judge John Koeltl, told the panel that there was "abundantly overwhelming evidence" that Stewart and interpreter Mohamed Yousry "knew that what they were doing was wrong" when they passed messages between the Islamic Group and the sheik....

Judges Guido Calabresi, John M. Walker Jr. and Robert Sack threw one question after another at lawyers for Stewart, Yousry and a third co-defendant, Ahmed Abdel Sattar, who was convicted of engaging in a conspiracy to murder in the Middle East.... The arguments Tuesday occurred before hundreds of people, many of them supporters of Stewart, who nearly packed the ceremonial courtroom on the ninth floor of the courthouse at 500 Pearl Street....  During the first two hours of the arguments, Calabresi and Sack returned repeatedly to the issues of knowledge and intent....

With the appeal pending, Stewart, who was disbarred in April 2007, has yet to begin serving a 28-month sentence, which the prosecution believes is far too low for the crime.  Barkow argued that Koeltl abused his discretion in giving Stewart a "slap on the wrist."  Barkow received more than a sympathetic response from Walker, who said Judge Koeltl "didn't sufficiently consider that she abused her position as a lawyer and lied to the government" when Stewart signed attorney affirmations promising to abide by the special administrative measures the Justice Department and the Bureau of Prisons imposed on the sheik to prevent him from communicating with the Islamic Group.

"There's a serious aspect to this case ... that a lawyer is sworn to uphold codes of conduct and ethics and behave in a particular way," Walker said.  He said that Koeltl "in effect" nullified the terrorism enhancement in the sentencing guidelines "because there was no harm."  "Doesn't the judge have to at least account for the guidelines? It seems there was no consideration," he said, adding later, "We don't want total freewheeling judges just to make decisions that they choose."

Given the make-up of the panel and all the intricate and important issues involved, I would expect a split decision in this case and further appeals (both en banc and to SCOTUS) perhaps by both sides.  In other words, I suspect this Stewart case will generate plenty more stories in the months and years ahead.  But whether these stories will involve the federal sentencing issues that obviously are troubling Judge Walker remains to be seen.

Another long sentence for a chief involved in corporate fraud

As detailed in reports from Bloomberg News and Reuters, another corporate fraud led to another very long prison sentence in federal court today.  Here are some notable highlights from the Bloomberg report:

Daniel Marino, the former finance chief of the bankrupt hedge-fund firm Bayou Group LLC, was sentenced to 20 years in prison for defrauding investors of as much as $400 million.  The judge cited the size and length of the eight-year fraud, and Marino's role as its "linchpin'' in setting the sentence.  Marino, 48, who had sought leniency due to his cooperation with prosecutors, was ordered imprisoned immediately.  He was handcuffed by marshals in the well of the courtroom and led away.

"You are as much a career criminal as any mobster or any drug kingpin,'' U.S. District Judge Colleen McMahon said today in Manhattan federal court, adding he may have gotten a 50-year term. "There is simply no alternative but to punish you for your life of crime.''...

Marino apologized today, saying he was "truly sorry.''  Individuals who cooperate typically receive greatly reduced sentences. The judge said she didn't give Marino credit for cooperating because his help wasn't central to solving the case.  She said the amount of the fraud "boggles the mind.''... McMahon concluded "there is no way that the Bayou fraud could have been perpetrated, nor could it have grown to its immense proportions, but for you.''...

Marino's lawyer, Andrew Bowman, said he will appeal the sentence....  Bowman asked for leniency, citing his client's recurring bouts of cancer, hearing loss, depression and attempted suicide.  The lawyer claimed Marino has been sickly since age 5, when complications from the mumps left him with severe hearing loss.... In refusing his bid for leniency, she told Marino that his "personal difficulties'' don't warrant a shorter sentence.  "You are a sad individual -- you were good at doing the worst,'' she told him. "And for this, you have to pay.''

It is interesting to speculate whether all the recent consternation over the economy might have, directly or indirectly, impacted the outcome in this case.  Though I doubt Judge McMahon ever planned to go easy on Marino, the bad national economic news over the last few weeks surely could not have helped Marino's efforts to get a little leniency from this judge at sentencing.

A sentencing scorecard on backdating convictions

This new Reuters article, which reports on the latest sentencing following a conviction for options backdating, also provides this effective review of the outcomes in a series of backdating conviction:

A former chief financial officer of information security company SafeNet Inc was sentenced on Monday to six months in prison for manipulating employee stock option grants. Carole Argo also was fined $1 million. She admitted to backdating options awards from 2000 to 2006 for herself and others at SafeNet, a Maryland-based company that was taken private last year by an investor group.

Argo, who pleaded guilty to one count of securities fraud in October, is among a handful of former U.S. executives who have been charged criminally with wrongdoing related to backdating of option awards. More than 200 companies have disclosed internal audits or government probes surrounding options practices....

In other options backdating cases, a former chief executive of Brocade Communications Systems Inc, Gregory Reyes, was sentenced to 21 months in prison and a $15 million fine by a federal judge in San Francisco earlier this month after being found guilty at trial of 10 counts of conspiracy, securities fraud and making misleading statements about Brocade's finances.

Last year, former Comverse Technology Inc general counsel William Sorin was sentenced in U.S. District Court in Brooklyn to a year in prison for his role in a backdating scheme.  Also charged in that case is former Comverse CEO Jacob "Kobi" Alexander, who is in Namibia as that government considers a U.S. request to extradite him.

Last week, former Monster Worldwide Inc CEO Andrew McKelvey, who is terminally ill, struck a deal with federal prosecutors in New York in which he admitted to options-related wrongdoing but will avoid prison time. McKelvey was criminally charged with securities fraud and conspiracy, but the government agreed to defer prosecuting him for 12 months because of his poor health.  The case will be dropped after a year if he stays out of legal trouble.

Could SCOTUS securities fraud ruling help white-collar defendants?

According to this post at SCOTUSblog, the Supreme Court this morning issued one opinion, ruling 5-3 in Stoneridge Investment Partners v. Scientific-Atlanta (06-43) "that fraud claims are not allowed against third parties that did not directly mislead investors but helped those who did." 

Even though Stoneridge is a civil securities fraud case, I cannot help but wonder if the opinion (available here) might have any themes or language that could indirectly impact sentencing determinations (on issues like loss) in some criminal securities fraud cases.  Of course, experts in this complicated arena are highly encouraged to chime in.

UPDATE: After a quick read of Stoneridge, I do not see much specific language that will warm a white-collar defense attorney's heart.  However, the thematic concerns of federalism and over-regulation that find some expression of Justice Kennedy's opinion for the Court might be developed effectively in the right kind of federal sentencing proceeding.

Second Amendment challenge to felon-in-possession conviction

Especially in light of my hunting post yesterday, I was very intrigued to see this morning's New York Sun article headlined "Convicted Felon Tests Second Amendment."  Here are excerpts:

Current federal law prevents felons from keeping a firearm. [Damon] Lucky, already a felon twice over, was convicted this year of violating that law. His court motion seeks to have that conviction tossed out on the grounds that the law violates the Second Amendment.

At its essence, the question before the Supreme Court in an upcoming case is whether the Second Amendment gives individuals the right to own guns or grants only a collective right to form militias. Even some proponents of the individual rights position say the Second Amendment allows for some gun control, like laws that prevent felons from owning firearms.

[Lucky's lawyer Harry] Batchelder conceded that the motion is a long shot.  Still, few defendants in gun possession cases in New York ever raise a Second Amendment argument.  Except for Lucky, Mr. Batchelder said, "they all go away quietly."

It's possible, several lawyers say, that Lucky's case is the only challenge currently in court in New York City claiming that the Second Amendment provides for an individual right to own a gun. Mr. Batchelder, an ex-military man, described Lucky as "the recon scout for the Second Amendment."... 

In Lucky's legal motion, Mr. Batchelder refers to the gun rights advocates as "Paineists," and the gun control advocates as "Stalinist collectivists." Yet the lawyer says he personally favors gun control.  "But my personal views have nothing to do with what I advocate," Mr. Batchelder said. "Otherwise, I wouldn't be advocating for too many people."

Some related posts:

• SCOTUS takes up DC Second Amendment case ... predictions?
• A Second Amendment problem with Peltier?
• Hunting, pardons and a Second Amendment claim?

Fascinating proportionality opinion from Oregon court

A helpful reader alerted me to a fascinating opinion from the Oregon Court of Appeals in Oregon v. Rodriguez, No. A131050 (Or. Ct. App. Dec. 26, 2007) (available here).  Both the underlying facts and the legal discussion in this case are noteworthy, and these lengthy excerpts provide only a small flavor of an opinion worth reading in full:

In early 2004, defendant [Victoria Rodriguez] was employed by the Hillsboro Boys and Girls Club to work with at-risk youths....  The victim was a member of the club....  On February 14, 2005, a staff member ... saw defendant and the victim in the game room at the club. There were approximately 30 to 50 youths and at least one other staff member in the room.  The victim, who had since turned 13, was sitting on a chair.  Defendant, who had since turned 25, was standing behind him, caressing his face and pulling his head back; the back of his head was pressed against her breasts.... The contact lasted approximately one minute....

Defendant was eventually charged with first-degree sexual abuse based on the incident.  A jury found defendant guilty....  At sentencing, the prosecutor asked the court to impose the 75-month sentence prescribed by ORS 137.700 (commonly referred to as "Measure 11").  Defendant objected, arguing that the Measure 11 sentence would be unconstitutionally excessive.  Numerous family members, friends, and coworkers testified in support of defendant.  The court agreed with defendant that a 75-month sentence would be cruel and unusual.  The court observed that defendant had no prior criminal record and that she had "lived an exemplary life" and had "really made a very positive impact into the lives of apparently many children * * *." It further noted that the touching occurred "in a crowded room, over clothing, [and was] not prolonged."  The court concluded that a 75-month sentence "just cries out" as being shocking to any reasonable person.  It imposed a 16-month sentence.  This appeal followed....

The state contends, among other things, that, given the nature of the relationship between defendant and the victim, the 75-month sentence mandated by Measure 11 would not shock the moral sense of all reasonable people....  We agree with the state that, given the nature of the relationship between defendant and the victim, there can be no doubt that the Measure 11 sentence would not shock the moral sense of all reasonable people.  It is undisputed that the victim was young and vulnerable, a prototypical "at-risk" youth. Defendant was in a position of trust and responsibility, akin to that of a teacher or youth counselor, charged with helping children make appropriate behavioral choices.  By engaging in sexual conduct with the victim, defendant seriously abused that trust.

In short, we cannot say that the 75-month sentence required under Measure 11 would shock the moral sense of all reasonable people as to what is right and proper under the circumstances.  It follows that the trial court erred in refusing to impose that sentence.

Evolving images of a killer and the evolving Eighth Amendment

There are so many interesting facets of the Pittman case (first discussed here), which has now been brought to the Supreme Court.  This new National Law Journal article provides the basics and highlights the role of a law school clinic in bringing the case to the Supreme Court:

A group of University of Texas School of Law students has helped file a petition with the U.S. Supreme Court in hopes of getting a South Carolina teenager's sentence reviewed.  The petition, filed on Monday, asks the court to review the case of Christopher Pittman, who is serving a 30-year sentence without parole for murdering his grandparents when he was 12.  Five third-year law students from the school's Supreme Court Clinic in Austin teamed up with five public policy students and spent the semester working on the case.

In addition, as spotlighted in this post at Pharmalot, the Pittman case has already drawn plenty of attention from folks other than those concerned just with the operation of the criminal justice system:

[If the Supreme Court takes this case] another aspect is likely to get attention — Christopher Pittman was taking Zoloft at the time he used a shotgun to shoot his grandparents, and then set fire to their home in 2001.  During his trial four years later, his attorneys argued, unsuccessfully, that the rampage was heavily influenced by the antidepressant, which Pfizer has always denied....  Meanwhile, a [recent] Fox News program, Hannity’s America, ran a segment linking recent mass shootings by teenagers with antidepressants. The episode had its flaws — the reporter failed to include comment from anyone in pharma or at the FDA, and suggested a connection to the recent shooting at the Omaha shopping mall without offering any evidence. Nonetheless, these two items suggest the debate over the proper use of antidepressants won’t go away and, in fact, is likely to remain polarized for the foreseeable future.

While others may be primarily interested in the human and medical stories that surround this case, I am focused on legal issues concerning the interpretation and application of the Eighth Amendment in this (non-capital) context.  Of particular interest to me is how the Eighth Amendment is to be applied in non-capital cases in light of the Court's recent capital rulings in Roper and Atkins (and its forthcoming work in Baze).  Specifically, I wonder whether and how the legal concept of an "evolving national consensus" that was central in Roper and Atkins should be unpacked here.  Against this backdrop, I am especially intrigued by the different images of the defendant that can be in the mind's eye as one thinks about whether the sentence he received is unconstitutional because it would violate societal mores.  As a few shrewd commentors have already noted (and as the pictures in this post highlight) the evolving nature of a young man perhaps has already played a role in his fate, and could continue to play a role in the debate over this case.

A severe juve sentence seeking SCOTUS attention

How Appealing does a great job here collecting resources relating to the cert petition filed yesterday in the in Pittman v. South Carolina.  This AP article provides the basics:

Attorneys have asked the U.S. Supreme Court to hear the case of a teen sentenced to 30 years in prison for killing his grandparents when he was 12, arguing that the sentence is cruel.... In the brief submitted to the high court late Monday, attorneys from the University of Texas School of Law argued that the 30-year sentence violates Christopher Pittman's Eighth Amendment protection from cruel and unusual punishment.

The adverse ruling from the South Carolina's highest court, which can be found here, rejected the defendant's constitutional challenge by stating, inter alia, that "we do not believe that evolving standards of decency in our society dictate that it is cruel and unusual to sentence a twelve-year-old convicted of double murder to a thirty-year prison term."

The cert petition, which Howard Bashman has made available for downloading via this link, presents these three questions:

I.  Is a sentence of 30 years without possibility of parole constitutionally disproportionate as applied to a 12-year-old child?

2.  Are the mitigating qualities of youth relevant to whether a 12-year-old's non-capital sentence is constitutionally disproportionate?

3.  Does the Eighth Amendment prohibit the imposition of a sentence of 30 years without possibility of parole on a 12-year-old child where the sentencer was absolutely precluded from considering youth as a mitigating factor justifying lesser punishment?

For lots and lots of reasons, I really hope the Supreme Court takes this case.  In fact, I think Pittman is a much more important and consequential case than the child rape capital case from Louisiana (Kennedy) that many SCOTUS watchers are watching so closely.  But, because capital cases always seem to drawn unique interest from the Justices, I'd probably bet Kennedy is a more likely grant than Pittman.  (In my perfect (and very, very unlikely) world, these cases would be consolidated for one mega-argument about the modern scope and reach of the Eighth Amendment.)

Fascinating review of recent white-collar sentencing realities

I just noticed this Bloomberg news story detailing some of the sentencing realities of the modern assault on corporate crime.  The story is headlined "Bush Fraud Probes Jail Corporate Criminals Less Than Two Years," and here some lengthy excerpts from a very interesting piece:

Sixty-one percent of defendants sentenced in the Bush administration's crackdown on corporate fraud spent no more than two years in jail, escaping the stiff penalties given WorldCom Inc. and Enron Corp. executives. In the past five years, 28 percent of those sentenced got no prison time and 6 percent received 10 years or more, according to a review of 1,236 white-collar convictions....

A wave of corporate corruption marked by Enron's collapse in 2001 and an accounting scandal at WorldCom led Congress to enact harsher penalties. President George W. Bush signed the Sarbanes-Oxley Act to reform governance and named a Corporate Fraud Task Force to push "significant" prosecutions....

Defendants got reduced jail time when they helped prosecutors investigate frauds, served as low- or mid-level executives, or committed crimes that were less sophisticated than complex accounting conspiracies, the review by Bloomberg News found....Of the 1,236 convictions from 2002 to 2007 in the review, 1,133 defendants were sentenced. Forty-seven percent of those got a year or less in prison....

The Justice Department claimed credit for 1,236 convictions in the crackdown on corruption. The department says it doesn't have a comprehensive list.  Bloomberg assembled a comparable list based on more than 350 cases from task force annual reports, lists of executives, and press releases on the department's Web site....

Joan Meyer, who oversees the task force as senior counsel to the deputy attorney general, argues that any prison sentence can serve as a deterrent. "Every case can't be an Enron,'' Meyer says. "The question is, do we give a pass to white-collar defendants because their crimes are non-violent and result in lesser sentences? That would be an abdication of our responsibilities.''...

At least 129 defendants cooperated with prosecutors, court records show.  The number may be higher, lawyers say, because public files don't always reflect whether a judge credited a defendant for helping the government.....  Judges weigh a crime's nature, the amount of financial loss and a defendant's circumstances in sentencing. Offenders who plead guilty tend to get less time than those who go to trial. 

Defendants are penalized for not accepting responsibility for their crime, while those convicted at trial may be held accountable for the full loss in a fraud.  Of 193 defendants convicted at trial, 38 got 10 years or more....  "The idea that somebody who goes to trial and gets hammered while people who plead guilty get far less time smacks of the Inquisition,'' says defense attorney John Keker of Keker & Van Nest in San Francisco. "I think it's a disgrace.  The going-to-trial penalty should be an embarrassment to judges everywhere.''...

Repeal Day and the war on drugs

As explained at this website, December 5 is "Repeal Day."  As the cite explains, "on December 5th, 1933, Utah, the final state needed for a three quarters majority, ratified the 21st Amendment, repealing Prohibition and restoring the American right to a celebratory drink."  Ever the festive patriot, I had a beer with students and a glass of wine at home to honor this uniquely American holiday.   

It is interesting to think about the history of Prohibition and the the enactment and repeal of the 18th Amendment against the backdrop of the modern war on drugs.  Specifically, this fascinating article in this month's Rolling Stone, entitled "How America Lost the War on Drugs," provides lots of interesting ideas about the market realities surrounding the human affinity for intoxicating substances.

The severity of felony murder responsibility

In today's New York Times, Adam Liptak has this article entitled, "Serving Life for Providing Car to Killers."  Here are a few excerpts:

The felony murder rule, which has many variations, generally broadens murder liability for participants in violent felonies in two ways. An unintended killing during a felony is considered murder under the rule....

India and other common law countries have followed England in abolishing the doctrine. In 1990, the Canadian Supreme Court did away with felony murder liability for accomplices, saying it violated “the principle that punishment must be proportionate to the moral blameworthiness of the offender.”  Countries outside the common law tradition agree.  “The view in Europe,” said James Q. Whitman, a professor of comparative law at Yale, “is that we hold people responsible for their own acts and not the acts of others.”

But prosecutors and victims’ rights groups in the United States say that punishing accomplices as though they had been the actual killers is perfectly appropriate....  Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a victims’ rights group, said “all perpetrators of the underlying felony, not just the one who pulls the trigger” should be held accountable for murder.

Some other white-collar sentencing news and notes

This post on the Eleventh Circuit's affirmance of the 30-year (within-guideline) sentence of first-offender Chalana McFarland for mortgage fraud has generated lots of interesting comments about white-collar sentencing.   If folks want more grist for the mill in this arena, check out these news stories about some white-collar sentencing developments:

• From the AP here, "Texas Oilman Handed Year Prison Term"

• From the CanWest News Service here, "Conrad Black may face stiffer sentencing"

• From the AP here, "High-profile L.A. lawyer gets prison for fraud, other crimes"

• From the Honolulu Star-Bulletin here, Ex-charity worker gets 30-year term for fraud

There are lots of interesting facets to all these stories, and the Conrad Black sentencing will likely be making even more headlines as sentencing approaches.

SCOTUS takes up DC Second Amendment case ... predictions?

Lyle Denniston in this post at SCOTUSblog has the big Supreme Court news today:

After a hiatus of 68 years, the Supreme Court on Tuesday agreed to rule on the meaning of the Second Amendment — the hotly contested part of the Constitution that guarantees “a right to keep and bear arms.” Not since 1939 has the Court heard a case directly testing the Amendment’s scope — and there is a debate about whether it actually decided anything in that earlier ruling. In a sense, the Court may well be writing on a clean slate if, in the end, it decides the ultimate question: does the Second Amendment guarantee an individual right to have a gun for private use, or does it only guarantee a collective right to have guns in an organized military force such as a state National Guard unit?

How Appealing has lots of additional coverage here. 

As I have suggested in previous posts, if the Supreme Court gets serious about protecting gun rights, I think severe sentences for some minor gun crimes could be subject to a new kind of constitutional attack.  But I'm not betting the Justices will get truly serious about protecting gun rights. 

Study shows Texas is sometimes soft on murderers

As showcased here and in this AP report, the Dallas Morning News has a remarkable new investigative report entitled ""Unequal Justice: Murderers on Probation."  This first article in the paper's five-part series starts this way:

The young man fights back during a robbery. Kill him. The neighbor accuses you of stealing gas from his truck. Kill him. The son you never wanted is yelling at your wife again. Kill him. Your punishment in Texas, the nation's death-penalty capital? In each case, it was probation.

In many states, probation is a rare or impossible sentence for murder. But a Dallas Morning News investigation found that it happened in Texas at least 120 times from 2000 through 2006. And Dallas County easily leads the way. It put more than twice as many murderers on probation as it sent to death row.  Nine percent of all murder sentences in the county resulted in probation — that's 47 people released to the streets.

Denver voters approve initiative busting up pot busts

The Denver Post reports here on the results of an interesting criminal justice initiative that appears to have been passed by city voters:

More than half of Denver voters favored an initiative making marijuana the city's lowest law enforcement priority.  With just a handful of ballots left to count, the measure had captured 55 percent of the vote.  The result means the mayor must appoint a panel to monitor how marijuana cases are handled by the police and city prosecutors and issue a report.

"It appears as if it is going to pass, and it shows there is a wealth of support around the city," said Mason Tvert, campaign director of Safer Alternative For Enjoyable Recreation, the group behind the initiative.  Tvert says the measure was motivated by what he says are overzealous police who continue to cite adults for possessing under an ounce of marijuana despite a law that allows simple pot possession in Denver.

Denver police and prosecutors say possessing marijuana still violates state and federal laws. A spokeswoman for Denver Mayor John Hickenlooper has said that enforcement of laws governing small amounts of marijuana is already a low priority.

Similar initiatives passed in Seattle in 2003 and in Missoula, Mont. last year.  Seattle's marijuana panel reported that marijuana prosecutions and arrests are down, but Seattle's city attorney says the group cannot agree whether the initiative caused the drop.  In Missoula, the city attorney has told prosecutors in his office not to pursue simple marijuana possession cases involving adults.

I love that the acronym for this campaign was SAFER, but wouldn't Really Excited Enthusiasts For Enjoyable Recreation have been a more appropriate name for the group?  Also, would we have expected any other result from the Mile High City? 

More seriously, I am intrigued by various efforts to wage populist counter-attacks on the war on drugs through the initiative process.  I wonder if anyone is working on these ideas for the big 2008 election cycle.

Hate crime enhancements and the pressures to plea

A helpful readers alerted me to this fascinating article from the New York Times discussing a notable case that raises a lot of notable sentencing issues.  Here are snippets:

In a case that has drawn intense scrutiny to the legal meaning of hatred, the last of four young men charged with selecting a gay man as a robbery target and chasing him to his death in traffic pleaded guilty yesterday to manslaughter and attempted robbery as hate crimes.

The defendant, Ilya Shurov, 21, agreed to serve 17 1/2 years in prison. In exchange, prosecutors dropped charges of felony murder as a hate crime, which could have meant a life sentence.  “If there was no life sentence,” said a defense lawyer, Hermann P. Walz, “we would have rolled the dice.”...

The victim, Michael J. Sandy, 29, a designer from Williamsburg, was lured from his home to a secluded lot in Sheepshead Bay on Oct. 8, 2006.  He was directed to a beach known as a meeting place for gay sex, then beaten and chased into traffic.  He was struck by a car and later died of his injuries.... Prosecutors accused four men of hate crimes, a distinction that can extend prison sentences.

In pretrial hearings, defense lawyers argued that no evidence showed that the defendants harbored any real animosity toward homosexuals.  Prosecutors countered that the defendants had selected Mr. Sandy as a robbery target believing a gay man would offer little resistance and hesitate to report the crime.

Justice Jill Konviser-Levine, who had helped draft the state hate crime law as a senior assistant counsel to Gov. George E. Pataki, allowed the charges to stand.  She rejected a defense argument that the law was unconstitutionally vague. “The statute provides clear standards for enforcement,” she wrote, “in that it does not permit a hate crime to be charged merely because a victim happens to possess a trait protected by the statute.”

One defendant, Gary Timmins, 17, pleaded guilty to attempted robbery as a hate crime and accepted a sentence of four years in exchange for testifying against his friends.  Two others, Anthony Fortunato, 21, and John Fox, 20, were accused of selecting Mr. Sandy as a robbery target.  They were convicted of manslaughter and attempted robbery as hate crimes last month in a joint trial before separate juries.

Lots of sentencing stuff from the Ninth Circuit

The Ninth Circuit today has two lengthy opinions covering important sentencing issues.  Here are the basics taken from the opening paragraphs of each opinion:

US v. Gonzales, No. 04-30007 (9th Cir. Nov. 5, 2007) (en banc) (available here):

In United States v. Williams, 291 F.3d 1180, 1195 (9th Cir. 2002), we held that a totally suspended six-month sentence for criminal mischief counted as a “prior sentence,” mandating an additional point on the defendant’s criminal history score; however, in United States v. Hernandez-Hernandez, 431 F.3d 1212, 1220 (9th Cir. 2005), we also held that a partially suspended three-month misdemeanor sentence resulting in three days of imprisonment did not count as a “prior sentence,” and thus did not increase the defendant’s criminal history score.  We agree with both the government and Gonzales that our analysis in Williams was flawed by its failure to read the relevant Guidelines sections as a whole.  We hold that the language “term of imprisonment” in § 4A1.2(c)(1) refers only to certain non-felony sentences for which the defendant actually served a period of imprisonment.  Therefore, we overrule Williams, clarify Hernandez-Hernandez, vacate Gonzales’s sentence and remand for resentencing.

US v. Cope, No. 06-50441 (9th Cir. Nov. 5, 2007) (available here):

In this appeal we consider, among other matters, whether the district court’s imposition of a lifetime of supervised release was reasonable and whether the district court was required to articulate findings before imposing certain special conditions of supervised release pertaining to medication.  Under the circumstances presented by this case, we conclude that the term of supervised release imposed was reasonable, but that the district court should have articulated findings before imposing special conditions of release that would implicate a particularly significant liberty interest of the defendant.  Therefore, we affirm in part, vacate the sentence in part, and remand for further proceedings.

A Second Amendment problem with Peltier?

Along with commentors, I have bemoaned the statutory problems and the practical craziness of the Fifth Circuit's affirmance of a 10-year maximum sentence for a not-particularly-serious version of felon-in-possession in US v. Peltier, No. 05-30440 (5th Cir. Oct. 23, 2007) (available here).  And, with the Supreme Court now poised to consider whether the Second Amendment protects an individual right to keep arms (a view I believe the Fifth Circuit has already embraced), I am now wondering whether there might be a serious Second Amendment issue lurking here.

Recall that in Peltier the defendant "pleaded guilty to one count of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1)."  Specifically, he possessed an "old, rusty .12 gauge shotgun stashed in an outdoor shed," which he said "he kept ... for personal protection."  Of course, even if the Second Amendment confers upon individuals a right to keep arms, some reasonable restrictions on that right (just like reasonable restrictions on free speech/press rights) must be allowed in the name of public safety.  And perhaps even a total ban on felons possessing firearms might qualify as such a reasonable restriction in the name of public safety.

But at some point, if the Second Amendment does confer on individuals a right to keep arms, wouldn't extraordinarily severe criminal punishments for non-threatening possession raise serious constitutional questions?  Don't the penumbras of the Second, Fifth and Eighth Amendments cast a dark shadow on rulings like Peltier in which a defendant is deprived of 10 years of liberty by a judge simply for having a shotgun in his shed?

Perhaps I am trying to read too much into the Second Amendment, but cases like Peltier are one of many reasons I am keeping a close eye on the brewing gun litigation brouhaha.

Rooting for the Sixth Circuit to take acquitted conduct en banc in White

As noted in this prior post, a Sixth Circuit panel earlier this month indicated that all three members would strongly recommend" en banc review of the "important question" of "whether the continuing use of acquitted conduct as a sentencing enhancement violates United States v. Booker, 543 U.S. 220 (2005)."  This quoted language comes from the panel's per curiam ruling in US v. White, No. 05-6596 (6th Cir. Oct. 5, 2007) (available here).  I believe an en banc petition was filed last week in White, so now I am eagerly awaiting word on whether the White panel has convinced the majority of the Sixth Circuit to take up the acquitted conduct issue. 

As regular readers know (and as posts linked below highlight), I find acquitted conduct enhancements especially troublesome in the wake of Blakely and Booker.  Moreover, Justice Scalia's concurring opinion in Rita indicates that some within-guideline sentences depending too much on judicially found facts would trigger "as-applied" Sixth Amendment concerns even within an advisory guideline scheme.  Justice Scalia's discussion of "as-applied Sixth Amendment challenges" in Rita provides further support for a constitutional attack on use of acquitted conduct as a sentencing enhancement.

Further, a number of district court opinions suggest that sentencing courts may be taking a variety of post-Booker approaches to the consideration of acquitted conduct sentencing enhancements.  For example, a terrific district court opinion from the Eastern District of Virginia in Ibagna (discussed here) makes a strong case for why acquitted conduct should no longer be used at sentencing now that Booker mandates that the provisions of 18 U.S.C. § 3553(a) guide sentencing decision-making.  And, within the Sixth Circuit, another terrific district court opinion from the Southern District of Ohio in Coleman (discussed here) reaches a distinct conclusion about how to deal with acquitted conduct enhancements after Booker.

In short, in addition to a core constitutional issue, acquitted conduct enhancements after Booker raise interesting and important statutory interpretation and reasonableness review issues as well.  Because the Sixth Circuit has been among the most thoughtful and nuanced appellate courts trying to sort through Booker fall-out, I am very hopeful it will be the first circuit to assess these issues directly through an en banc proceeding.

Some related posts:

• Will the Sixth Circuit consider acquitted conduct enhancements en banc?
• Strong commentary on acquitted conduct sentencing
• A terrific district court opinion on acquitted conduct
• New (or renewed) ideas and arguments suggested by Rita
• Sincere questions about acquitted conduct sentencing

A positive, practical consequence of a parole panic

I have long thought that sentencing and corrections would be more effective if decision-makers focused resources and attention on violent offenders.  Interestingly, this local story from Connecticut spotlights that, in the wake of a horrific violent crime by parolees, state official are reorienting energies on distinguishing violent and non-violent offenders in prison.  Here are snippets from the story:

Gov. M. Jodi Rell said Saturday she has authorized adding prison staff to speed the release of nonviolent offenders and make room for violent offenders no longer eligible for parole.  The inmate population has swelled by 461 in the month since Rell suspended additional paroles of violent offenders until the procedures for reviewing applications are tightened.

In a series of changes prompted by the July 23 slayings of a mother and her two daughters in their Cheshire home, Rell also approved the expedited hiring of 13 parole officers to improve the oversight of parolees. Rell authorized the Board of Pardons and Paroles to hire five temporary employees to process and review a backlog of 1,000 parole applications. The backlog was caused by a decision to grant no paroles without reviewing applicants' sentencing transcripts.

Some related posts:

• Overcrowding problems in the Nutmeg State
• Connecticut Governor appoints sentencing and parole task force