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.
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.
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:
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."
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.
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.
You be the state legislator: how should Ohio respond to new data showing drug overdose deaths reaching another record high in 2015?
The 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:
- "Elizabeth Warren Urges CDC To Consider Cannabis To Solve Opioid Epidemic"
- Minnesota survey suggests marijuana reform can help with opioid issues
- "Legalize marijuana and reduce deaths from drug abuse"
- Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?
- "Could medical marijuana solve Ohio's opioid problem?"
- "How Drug Warriors Helped to Fuel the Opioid Epidemic"
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.
"Defining Violence: Reducing Incarceration by Rethinking America's Approach to Violence"
The 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.
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.
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.”
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” bans, gun 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.”
Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?
The question in the title of this post reflects my ambivalent reactions to this lengthy and interesting AP article headlined "Prosecution trend: After fatal OD, dealer charged with death." Here are excerpts:
He knew he was in trouble even before he read the text message: "Did u hear what hapnd 2 ed?" Ed Martin III had been found dead in the bathroom of a convenience store, slumped over on his knees with a needle and a residue-stained spoon in his pocket. He'd mainlined fentanyl, an opioid up to 50 times more powerful than heroin. A pink plastic bag of white powder sat on the sink.
Michael Millette had heard. The overdose death of his friend, just 28, brought tears to his eyes. But he was scared, too. He was Martin's dealer, the man who'd sold him his final fix. In panic, Millette fled to Vermont. But within a day he was back, selling again. He needed money for his own habit.
Now, though, police had a tip that "Mike on Main Street" had been Martin's dealer. Undercover officers began watching his furtive deals on a pedestrian bridge behind his apartment; they secretly photographed his visitors. After he sold drugs to an informant, they swooped in and arrested him.
That's when Millette earned a dubious distinction: He became one of a growing number of dealers around the nation to face prosecution for the fatal heroin and fentanyl overdoses of their customers. He was charged not just with drug dealing, but with causing Martin's death. Maximum penalty: life behind bars.
In many states, including Ohio, Maine, West Virginia and New Jersey, authorities grappling with an alarming surge in opioid abuse are filing homicide, involuntary manslaughter or related charges against dealers. They argue the overdose deaths should be treated as crimes leading to stiff sentences that deter others — and deliver a measure of justice.
"We need to send that message that you can't sell things that are the functional equivalent of poison," says New Hampshire Attorney General Joseph Foster, whose state has witnessed an explosion in drug-related deaths in recent years....
Littleton is the essence of New England charm, with a white clapboard inn that has welcomed visitors since they arrived by stagecoach, a 19th-century opera house and even a bronze statue of Pollyanna, the fictional optimist whose author was born here.
But beyond the postcard image is the crime blotter police Capt. Chris Tyler sees every day. In recent years, he says, drugs have been linked to 85 to 90 percent of the major crimes — burglary, theft, armed robbery, forgery, identity fraud.... When heroin first took hold here around 2013, Tyler explains, "there was just a general sense of denial. That was something that happens in big cities where people fall between the cracks. It wasn't going to happen here. But unfortunately it has."
It's not just heroin, but cocaine, fentanyl and a resurgence of crystal methamphetamine. In one seven-month stretch last year, there were three overdose deaths, all connected to fentanyl. In May, a police informant was fatally shot; he'd allegedly cooperated in identifying dealers in the area.
In New Hampshire, drug-related deaths have soared from 163 in 2012 to a projected 478 this year. Fentanyl is increasingly the culprit. From 2011 to last year, deaths caused solely by the synthetic opioid exploded from five to 161, according to the state coroner's office. In that same period, the number of deaths caused by fentanyl combined with other drugs, including heroin, rose from 12 to 122....
Millette, 55, had been linked to another young man's fatal fentanyl overdose, but the witness wasn't credible so police didn't pursue the claims. Millette insists he never was a big-time dealer, just a desperate addict. But Tyler notes he peddled fentanyl, heroin and cocaine to more than 30 customers. His strongest stuff was called "the fire."
Millette says he wasn't sure what he'd sold Martin, only that it was stronger than heroin. He never tested what he sold. "If he's going to do it to a friend, who else will you do it to?" Tyler says. "He was somebody who needed to be stopped."
The prosecution of Michael Millette was part of a new thrust against opioid dealing in New Hampshire. In the spring, the U.S. attorney's office and the state's attorney general formed a task force to pursue dealers who sell opiates that result in fatal overdoses. So far, 56 cases are being investigated, says Benjamin Agati, senior assistant attorney general. In July, his office trained law enforcement throughout the state on how to identify these deaths and work with special prosecutors on investigations.
Though New Hampshire isn't ruling out filing homicide charges if needed — a strategy used in some other states — Agati says his office is pursuing dealers based on a law in which it must show they knowingly provided a drug that resulted in death. The heightened focus on dealers, he says, partly stems from a sense among social workers, pharmacists and rehab experts that "'we can't treat our way out this. We can't do this alone. There has to be some way to stem the supply. That's one reason we're trying the new approach."
But is this the right strategy? The legal community is divided. "I just don't think the ultimate responsibility lies with the person who sells another addict a drug," says Marcie Hornick, who was Millette's public defender. "I find it so counterproductive that they think sending these people to prison for long periods of time is going to have any deterrent effect. It's an easy fix and perhaps it satisfies part of the population. In reality, they come out and don't have the tools or skills to return to society."
But James Vara, who prosecuted the case and now is the governor's special drug adviser, rejects suggestions this is a politically motivated plan without merit. "Say that to a family who lost their child, their son, their brother, their daughter," he says. "Say that to Ed Martin's two children who are without their father as a result of this."
I agree with the statement by the public defender that the "ultimate responsibility" for an overdose death lies with the drug user not the drug dealer. But, especially as the number of these OD deaths are skyrocketing and drug dealers are seemingly not deterred from selling deadly drugs even when customers end up dead, it is not obvious to me that prosecuting dealers for homicide really is "counterproductive" or that it will not have some beneficial deterrent impact.
One reason I am generally supportive of marijuana reform and often troubled by long mandatory minimum sentencing terms for drug trafficking is because I dislike the nanny-state paternalism I see in decisions to criminalize and severely punish behaviors that do not obviously inflict serious harms upon innocent victims. But if and when drug dealers (whether on street corners or Big Pharma corner offices) are profiting from knowingly and recklessly selling a product that is regularly killing purchasers, my disaffinity for criminalization and significant punishment fades.
Sunday, August 14, 2016
"A reality check on crime: Rhetoric aside, new murder numbers are troubling"
The title of this post is the headline of this effective and important new piece from The Center for Public Integrity. Here are excerpts:
There’s been a lot of rhetorical heat of late regarding crime in America — but not a lot of light. Take Donald Trump. He stirred the Republican convention with an apocalyptic vision of inner-city America as a Mad Max movie. His first task, Trump said, “would be to liberate our citizens from the crime and terrorism and lawlessness that threatens their communities.” But wait. President Obama and others quickly countered that the imagery was nonsense — that violent crime today is dramatically lower than it was 30 years ago, 20 years ago, even 10 years ago.
There are multiple explanations for this confusion, and politics is only one of them. Reliance on the FBI’s Uniform Crime Reports is another; criminologists believe that many of the offenses tracked by the so-called UCR’s are terribly under-reported, and so are of limited utility. And the reporting suffers from a serious time lag; the FBI’s full year report for 2015 won’t be released for another month or so.
Many criminologists believe that murder is the only truly reliable crime statistic because it is the only crime that’s virtually always reported. Thus more recent reports on murder numbers are potentially illuminating, but have included a grab bag of cities, some of which showed murder increases while others showed decreases.
The Center for Public Integrity has gathered murder statistics for the first half of 2016 and compared them with totals for the first half of 2015, for America’s 10 most populous cities.... [which] contain some disturbing news. The 10-city total for January-June 2016 is up 20 percent over the previous year, and fully nine of the 10 municipalities showed increases, with big-percentage spikes in Phoenix, San Antonio, San Jose and especially Chicago. This seems to extend a jump in murders that showed killings up in early 2015 from 2014. The exception to the trend is the nation’s biggest city, New York, which so far in 2016 has sustained a drop in murders, continuing a trend there that stretches back to the early 1990s.
Is there an explanation for the broader uptick in America’s biggest cities? That’s harder to say. There’s talk of a “Ferguson effect,” in which cops are pulling back from aggressive enforcement — but little hard evidence. Some blame a rise in gang activity, while others point to a relentless proliferation of guns in the hands of young people. A less-explored, if admittedly imperfect explanation: more young people. Criminologists have traditionally argued that ages 15-24 are the crime-prone years, and the number of people in that age cohort has fluctuated over recent history. There were 42 million of them in 1980, when violent crime was rising, but the total was down to 38 million by 1990; crime started to ebb just a few years later, aided by the end of the crack epidemic. However, the number of 15-24-year-olds jumped to 44 million by 2012, and has stayed relatively close to that number since.
I consider this piece of reporting effective because it highlights that homicide numbers are generally the most reliable of crime statistics, and I consider it important because it highlights that homicide number tell a "disturbing" tale in 9 of the 10 largest US cities. (I also respect the piece's sensible statement that it is hard to say right now what accounts for the recent uptick in murders in America’s biggest cities.)
I have been especially troubled lately by demonstraby false assertions that crime is, right now, "actually at historic lows" (which is what former AG Holder claims in today's New York Times), when in fact it seems we hit modern recent historic homicide/crime lows in 2014. Those eager to contest Trump's expressed concern for law and order are on solid ground when saying that homicide/crime is now still much, much lower than when Barack H. Obama (or George W. Bush or William J. Clinton) first took office. But the hard cold facts, which ought no be avoided or fudged by any serious academic or policy advocate, indicate that homicide/crime started to increase in calendar year 2015 and may been in the midst of increasing further in 2016.
Tuesday, August 09, 2016
Finding (substantive?) due process violation, federal district judge refuses to apply statutory mandatory minimum made applicable by government stash-house sting
A helpful reader alterted me to a very interesting new federal sentencing opinion authored by Gerald Austin McHugh, Jr. in US v. McLean, No. 13-CR-487 (ED Pa Aug. 8, 2016) (available here). The full 29-page McLean opinion is a must-read for all persons interested in federal drug sentencing and dynamic views on sentencing limits that might be found in the Fifth Amendment's Due Process Clause. The opinion's introduction highlights why this decision is so interesting (and might make for a very interesting case to watch if federal prosecutors appeal to the Third Circuit):
The latitude given to federal authorities in charging drug offenses has been described as creating a “terrifying capacity for escalation of a defendant's sentence.”1 [FN1: United States v. Barth, 990 F.2d 422, 424 (8th Cir. 1993).] This case exemplifies that reality, as a defendant caught by an undercover “sting” operation faces a Guideline sentence of 35 years to life imprisonment, with a mandatory minimum sentence of 25 years, because of a professed willingness to rob a drug stash house that was invented entirely by Government agents, containing a fictional amount of drugs chosen by those agents. At sentencing, Defendant Clifton McLean argued that his sentence should be reduced because the Government improperly inflated his culpability by choosing a quantity of drugs — 5 kilograms of cocaine — that would trigger such a high mandatory minimum.
In an earlier opinion, I described the historical background of ATF “sting” cases, and concern among both judges and commentators over the consequences of this particular law enforcement tactic. United States v. McLean, 85 F. Supp. 3d 825 (E.D. Pa. 2015). Although I denied Defendant’s Motion to Dismiss the Indictment, resulting in his trial and conviction, as to this issue, I agree that imposing the sentence prescribed for the quantity of cocaine charged would violate his constitutional right to Due Process of Law on the facts of this case. I have as a result imposed a sentence that excludes consideration of the amount specified by the Government, imposing only two of the three mandatory minimums for the reasons that follow.
August 9, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Wednesday, August 03, 2016
Does the weather and MLB baseball impact federal sentencing outcomes more than racial factors?
The seemingly somewhat kooky question in the title of this post is prompted by this seemingly somewhat kooky empirical paper now available via SSRN and authored by a group of data researchers and titled "Events Unrelated to Crime Predict Criminal Sentence Length." Here is the paper's abstract (with a key sentence emphasized to explain my post title query):
In United States District Courts for federal criminal cases, prison sentence length guidelines are established by the severity of the crime and the criminal history of the defendant. In this paper, we investigate the sentence length determined by the trial judge, relative to this sentencing guideline. Our goal is to create a prediction model of sentencing length and include events unrelated to crime, namely weather and sports outcomes, to determine if these unrelated events are predictive of sentencing decisions and evaluate the importance weights of these unrelated events in explaining rulings.
We find that while several appropriate features predict sentence length, such as details of the crime committed, other features seemingly unrelated, including daily temperature, baseball game scores, and location of trial, are predictive as well. Unrelated events were, surprisingly, more predictive than race, which did not predict sentencing length relative to the guidelines. This is consistent with recent research on racial disparities in sentencing that highlights the role of prosecutors in making charges that influence the maximum and minimum recommended sentence. Finally, we attribute the predictive importance of date to the 2005 U.S. Supreme Court case, United States v. Booker, after which sentence length more frequently fell near the guideline minimum and the range of minimum and maximum sentences became more extreme.
Based on a quick scan of the paper, I came to the conclusion that one would need to have a pretty sophisticated understanding of both federal sentencing patterns and empirical methods to assess the soundness of the analysis here. Still, the paper's penultimate paragraph reinforces that this analysis led to some notable conclusions (with my emphasis again added):
A justice system reasonably aspires to be consistent in the application of law across cases and to account for the particulars of a case. Our goal was to create a prediction model of criminal sentence lengths that accounts for non-judicial factors such as weather and sports events among the feature set. The feature weights offer a natural metric to evaluate the importance of these features unrelated to crime relative to case-specific factors. Using a Random Forest, we found several expected crime related features appearing within the top 10% most important features. However, we also found defendant characteristics (unrelated to the crime), sport game outcomes, weather, and location features all predictive of sentence length as well, and these features were, surprisingly, more predictive than the defendant’s race. Further investigating this predictive ability would be of interest to those studying the criminal justice system.
Thursday, July 28, 2016
"The Downstream Consequences of Misdemeanor Pretrial Detention"
The title of this post is the title of this intriguing new empirical paper available via SSRN authored by Paul Heaton, Sandra Mayson and Megan Stevenson. Here is the abstract:
In misdemeanor cases, pretrial detention poses a particular problem because it may induce otherwise innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas — the third largest county in the U.S. — to measure the effects of pretrial detention on case outcomes and future crime.
We find that detained defendants are 25% more likely than similarly situated releases to plead guilty, 43% more likely to be sentenced to jail, and receive jail sentences that are more than twice as long on average. Furthermore, those detained pretrial are more likely to commit future crime, suggesting that detention may have a criminogenic effect. These differences persist even after fully controlling for the initial bail amount as well as detailed offense, demographic, and criminal history characteristics. Use of more limited sets of controls, as in prior research, overstates the adverse impacts of detention. A quasi-experimental analysis based upon case timing confirms that these differences likely reflect the casual effect of detention. These results raise important constitutional questions, and suggest that Harris County could save millions of dollars a year, increase public safety, and reduce wrongful convictions with better pretrial release policy.
I fear that most criminal justice researchers and reform advocates (myself included) pay much less attention to misdemeanor crimes and punishments than to so many other parts of the justice system. This article (and a few others noted below in prior posts) provides a reminder that we should not overlook this important element of modern justice systems.
Some prior related research and advocacy on misdemeanors:
- "Crashing the Misdemeanor System"
- Thoughtful discussion of too-often forgotten story of misdemeanors
- New ACS issue brief urges " diverting and reclassifying misdemeanors" to save big bucks
How much is federal prosecution of Native American teen for a marijuana offense in Oregon going to cost taxpayers?
The question in the title of this post is my effort to focus a bit more on the fiscal realities surrounding an interesting federal misdemeanor marijuana prosecution discussed in this lengthy local article from Oregon. The article is headlined "Devontre Thomas is 19. He Could Face a Year in Prison. For a Gram of Marijuana. How could this happen in Oregon?". The details here are so interesting for so many reasons, including a recent decision by the defendant not to agree to a plea to what seems to be federal charges less serious than might have been alleged. Here are some details:
Devontre Thomas is 19 years old. In a few weeks, he goes on trial in federal court in Portland. If he loses, he could go to prison for a year. For possessing an amount of cannabis that would fill one joint....
On April 7, 2016, the U.S. attorney for Oregon filed a one-count federal misdemeanor charge against Thomas for possessing "about a gram" of marijuana, according to his public defender, Ruben Iniguez. That's barely enough cannabis to dust the bottom of a Ziploc.
"I've never seen a case like this in my entire time practicing in federal court," says Bear Wilner-Nugent, a Portland criminal defense lawyer for 12 years. "It's outlandish." It's the first time in at least three years that the feds are prosecuting a weed crime in Oregon.
Since then, Oregon voters legalized recreational marijuana. Anyone over 21 can walk into a store and buy up to a quarter ounce — 7 grams — of cannabis. In the first five months of recreational sales, the state collected $14.9 million in marijuana sales taxes. But weed isn't equally legal everywhere in Oregon.
Thomas is accused of screwing up like any other teenager. But his alleged mistake occurred at Chemawa Indian School, a boarding school in the state capital, Salem, operated by the Bureau of Indian Education, an arm of the federal government. Observers say Thomas' prosecution, first reported by KGW-TV, is a poster case for how the nation's drug laws are still stacked against minorities — especially Native Americans. "There's absolutely racial disparity in how these cases are charged," says Amy Margolis, a lawyer at Emerge Law Group, a Portland firm that specializes in cannabis cases. "[Thomas] had the bad luck of being where and who he was."...
The prosecution of Thomas raises questions about the priorities of U.S. Attorney for Oregon Billy Williams, the state's chief federal prosecutor. Among them: Why are federal prosecutors, who claim that Oregon is a den of heroin, meth and opioid trafficking, spending time and resources to go after a teenager for such a small amount of pot? After two weeks of declining requests for comment, Williams finally issued this statement to WW: "We look forward to addressing the facts of the case in an appropriate manner and, most importantly, within the judicial process."
But members of Oregon's congressional delegation say it's alarming that Williams would prosecute the case at all. "I think it's deplorable," says U.S. Rep. Earl Blumenauer (D-Ore.). "What are we doing? Where are our priorities? A kid? Turning his life upside down? They don't have anything better to do to protect young people or Oregonians? It's incomprehensible to me."
As bizarre as Thomas' pot case is in weed-happy Oregon, the place where his alleged offense occurred is just as much of an anachronism. Chemawa, a Native American boarding school, was founded in 1880 and is the longest continually operating boarding school for Native American youth....
Thomas arrived at Chemawa from Madras High School, where he spent his first two years before transferring. He is a member of the Warm Springs tribe, and grew up with his parents and grandparents on the tribe's reservation 105 miles southeast of Portland.... A parent of a fellow Chemawa student described the Thomases as "a good family." His friends say his childhood was that of a normal, loved boy: spending the night at friends' houses, playing basketball on the Madras High junior varsity team....
Rayvaughn Skidmore, 20, also attended Chemawa with Thomas.... Skidmore says Thomas "would always help out his peers and be a leader—showing them what's the right things to do." Skidmore says Chemawa staff members would sometimes drive kids into town to go shopping at Keizer Station Shopping Center or Lancaster Mall in Salem, and he thinks that's when some students would meet up with marijuana connections and bring the substance back to campus.
But when kids on campus were caught with marijuana in their possession, "they'd get sent home." Skidmore says those infractions never resulted in legal charges, even though he knew plenty of classmates who regularly smoked weed. "These other students who are highly abusing any type of marijuana — I don't see why those guys get sent home when they should be prosecuted," he says....
Thomas was never technically arrested for marijuana possession. On March 25, 2015, Iniguez says, a staff member at Chemawa found roughly a gram of marijuana in a student's backpack. That kid said Thomas had sold him the weed. The Marion County Sheriff's Office confirmed that it responded to a call on that date involving Thomas and a juvenile classmate for "delivery" of marijuana.
Nearly a year after a classmate ratted out Thomas, a Chemawa staff member and a police officer drove him to the federal courthouse in Portland to appear before a judge. Lawyers interviewed for this story say it's likely that Thomas is feeling outsized consequences because Chemawa Indian School is under federal jurisdiction....
Retired federal drug prosecutor John Deits says Thomas' case is probably being handled as a federal case because "it's the only jurisdiction that can respond to the charge."
"Nobody else has authority," Deits says. "Marion County doesn't have authority because it's exclusive federal authority. And Indian tribes don't have jurisdiction because it didn't happen on their land."...
The resulting prosecution of Thomas shocks national observers. "He's 19. This is going to potentially haunt him the rest of his life," says Alison Holcomb, director of the American Civil Liberties Union's national Campaign for Smart Justice in Seattle. It's also a stark reminder that the War on Drugs isn't over — even in Oregon.
Observers find it bizarre that the feds have continued to pursue Thomas' case. But U.S. Attorney General Loretta Lynch has been vocal about her desire to keep pot illegal. Local responsibility for prosecuting Thomas falls to Williams, the U.S. attorney for Oregon.... "We are committed to just outcomes in every case," he says. "We look forward to exploring whatever the defense ask that we consider before determining what we believe is an appropriate outcome."
Other federal officials are critical of the prosecution. "The federal government hasn't prosecuted a marijuana-possession case in Oregon in five years," says U.S. Sen. Jeff Merkley (D-Ore.). "Situations like this are best left to be handled by the state."
Blumenauer, who as an Oregon congressman has become one of the nation's loudest voices for marijuana legalization, is enraged. "It is such a powerful symbol of a waste of resources and the inequity of the system," says Blumenauer, "because you and I can walk around in Portland, or in states where it is illegal, and find people using it. To single him out, to proceed with this, to ignore real problems that are killing people…" He pauses. "I'm sorry," he finally says. "I'm getting carried away. It's incomprehensible to me. I'm just sorry that Mr. Thomas is caught up in it."
The people surrounding Thomas in the federal courthouse in Portland on July 8 — Assistant U.S. Attorney Jennifer Martin, U.S. District Chief Justice Michael Mosman, three functionaries and a probation officer — expected Thomas to plead guilty to drug possession and enter a six-month diversion program. But a few moments earlier, Thomas' public defender, Iniguez, hustled into the courtroom with Thomas to announce a change of plans.
"He's not going to be pleading guilty today," Iniguez said. Martin, the prosecutor, looked shocked. "We want to go to trial?" she asked, flummoxed. "If we're making a federal case out of it," said Iniguez, sneaking in a smile, "we'll make a federal case out of it."
Holcomb, of the national ACLU, speculates that Thomas' last-minute decision not to plead guilty may show a steadfastness on his part to prove that he's no different from any other Oregon teenager who messed around with pot. "Devontre's response, to me, indicates a genuinely felt sense of unfairness," Holcomb says. "That it is unfair that he's being charged in federal court for this. It's the latest in a string of dramatic examples of how deeply people are feeling about unfairness and inequality…it sounds like that bubbled up for Devontre."...
Thomas is scheduled for trial Sept.13.
Like nearly all federal prosecutions that become media stories, I sense that this press account is revealing only the tip of an iceberg backstory. For starters, though subject formally only to a federal misdemeanor possession charge, the facts described here suggest that the defendant could have (and some might even say should have?) been subject to a federal felony marijuana distrubution charge. In addition, it seems the feds were seemingly eager to resolve the case through a plea that would prevent the defendant from serving any time or having a felony record. But now it seems that the defense may be gearing up for contesting the charges factually or perhaps constitutionally (or perhaps even via jury nullification if other avenues of defense falter).
I probably could go on and on about this case, and it is certainly one I will be keeping an eye on in the coming months. But, as suggested in the title of this post, whatever else one thinks about this case, I cannot help but wonder how many federal taxpayer dollars will end up being spent on this (minor?) matter.
July 28, 2016 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)
Wednesday, July 27, 2016
John Hinkley now to be freed from a psychiatric hospital, now 35 years after his crime and verdict of not guilty by reason of insanity
As reported in this Reuters piece, "John Hinckley Jr., who wounded U.S. President Ronald Reagan and three other people in a 1981 assassination attempt prompted by his obsession with actress Jodie Foster, can be freed from a psychiatric hospital to live with his mother, a federal judge ruled on Wednesday." Here is more about this notable ruling in perhaps the highest-profile insanity case of all time:
U.S. District Judge Paul Friedman said Hinckley, 61, who was found not guilty by reason of insanity in a 1982 trial, no longer posed a danger to himself or others. He said Hinckley could be released from St. Elizabeth's, a government psychiatric hospital in Washington, as soon as Aug. 5, subject to nearly three dozen conditions. "Since 1983, when he last attempted suicide, he has displayed no symptoms of active mental illness, exhibited no violent behavior, shown no interest in weapons, and demonstrated no suicidal ideation," Friedman said of Hinckley in a 103-page opinion.
In addition to Reagan, Hinckley's attack wounded presidential press secretary James Brady, a policeman and a Secret Service agent. It helped launch the modern gun control movement, as Brady and his wife, Sarah, founded what is now known as the Brady Campaign to Prevent Gun Violence after he was left permanently disabled. The Bradys' support helped the Brady Handgun Violence Prevention Act become law in 1993, imposing federal background checks on gun purchases and a five-day waiting period.
The Hinckley verdict also led several states to rewrite their laws making it more difficult to use the insanity defense while the U.S. Secret Service tightened its protocols for presidential security.
Upon his admission to St. Elizabeth's, doctors diagnosed Hinckley with depression and psychosis - two maladies they say have been in remission for years. Friedman said Hinckley will be required to spend at least a year living with his mother, Jo Ann, 90, in Williamsburg, Virginia, about 130 miles (210 km) south of Washington, where he has been making increasingly long furlough visits for several years.
If Hinckley's treatment team approves, he may then move into his own residence by himself or with roommates, Friedman said. He also said if Hinckley's mother becomes unable to monitor him in her home, his brother or sister will be required to live there with him until the hospital determines an alternate plan. In a May story about Hinckley's life, Washingtonian magazine cited neighbors in her gated community who liked Mrs. Hinckley but did not want him living there.
Hinckley had unsuccessfully sought jobs in Williamsburg at places such as Starbucks and a Subway sandwich shop and tried to become involved in volunteer programs in the town, Washingtonian said. He eventually took a volunteer job in the library of a psychiatric facility in Williamsburg. Hinckley's behavior during his furlough visits has been unimpeachable aside from a few occasions, the judge wrote. Twice in 2011, Hinckley lied to hospital staff about where he had been.
Friedman's order imposes nearly three dozen conditions, including a requirement that Hinckley meet with his psychiatrist in Washington monthly and notify the Secret Service when he travels for the appointment. He is barred from making contact with Foster or her family, Reagan's family and relatives of the other victims, and he is required to either work or volunteer at least three days per week. He is restricted to a 50-mile radius of Williamsburg and must make information about his mobile phone, vehicle and Internet browsing history available to his treatment team and law enforcement.
The petition for release from Hinckley was supported by his doctors but opposed by U.S. prosecutors. A spokesman for the U.S. Attorney's office in Washington did not immediately respond to a request for comment, nor did Hinckley lawyer Barry Levine. Hinckley was a 25-year-old college dropout with vague aspirations of a musical career when he fired at Reagan. He had become obsessed with Foster and the Martin Scorsese film "Taxi Driver" in which she played a teenage prostitute. Hinckley began to identify with the film's main character, Travis Bickle, who planned to assassinate a presidential candidate, and spent several years trying to make contact with Foster, who was a student at Yale University in Connecticut.
On March 30, 1981, Hinckley wrote Foster a letter detailing his plans to kill Reagan in an effort to win her over. Later that day, Hinckley approached Reagan outside the Washington Hilton Hotel and opened fire. Reagan suffered a punctured lung but recovered relatively quickly. Brady's death in 2014 was attributed to his wounds but federal prosecutors said the following year they would not charge Hinckley with his murder.
Foster has refused to comment publicly on Hinckley since addressing it in 1981, and a publicist for the Academy Award-winning actress did not immediately respond to a request for comment on Wednesday.
The full 103-page opinion in US v. Hinckley is available at this link.
Some prior related posts:
- Three decades after shooting the President, John Hinckley's freedom still debated
- As fights over John Hinckley's fate continue three decades after his violent crime, what are enduring CJ legacies or lessons?
July 27, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Monday, July 25, 2016
Increases in murders reported in many major cities from police chiefs
This new Wall Street Journal article, headlined "Murders Rise in 29 of Largest U.S. Cities in First Half of 2016: Homicides in Chicago and Orlando, Fla., contribute to much of the increase," reports on the latest bad news about homicide totals for the start of 2016. Here are the details:
The number of murders in 29 of the nation’s largest cities rose during the first six months of the year, according to the results of a survey released by the Major Cities Chiefs Association on Monday.
Overall, homicides jumped 15% in the 51 large cities that submitted crime data, compared with the same year-ago period. But over half that increase was driven by spikes in two cities: Chicago, which has struggled with rising gang violence, and Orlando, where Omar Mateen fatally shot 49 people at a nightclub in June.
A continuing increase in some cities worries city officials who had been hoping last year’s surge was an aberration in the decades-long decline in the country’s murder rate. After peaking in the 1990s, violent crime rates in the U.S. have in recent years been at their lowest levels in four decades, according to FBI data.
Donald Trump seized on the murder rise in his speech at last week’s Republican National Convention, saying that “decades of progress made in bringing down crime are now being reversed by this administration’s rollback of criminal enforcement.”
But Darrel Stephens, executive director of Major Cities Chiefs Association, said it’s still too early to say if the numbers signal real change. “It’s going to take a bit more to say this trend of 20 years is being reversed,” said Mr. Stephens, adding that there may be a rise in a few cities, “but not on a national basis.”
Homicides in the first six months also declined in 22 cities, including some that saw big jumps in 2015, such as Milwaukee, where killings dropped 26%, according to the survey. In addition, New York City, which has seen a decline in homicides this year, and some other large cities weren’t included because they hadn’t yet submitted their data, Mr. Stephens said.
Increased gang violence is playing a role in places like Chicago, which saw 316 homicides in the first half of 2016, compared with 211 in the first half of 2015....
The rise in homicides in some large cities last year set off considerable debate between police officials and criminologists over what was behind the increase. Some have attributed increases to the “Ferguson effect,” a theory that increases in crime can be attributed to the reluctance of police to engage in confrontation in the face of protests around the U.S. since the 2014 killing of an unarmed black teenager in Ferguson, Mo., by a white police officer....
Richard Rosenfeld, a criminologist at the University of Missouri-St. Louis, wrote in a Justice Department-funded study released in June that the Ferguson effect was a “plausible” explanation for the sudden jump in killings in 2015.
Mr. Rosenfeld also put forth a second version of the Ferguson effect, writing that the police killings in Ferguson and elsewhere “activated longstanding grievances” in minority communities about police and the criminal-justice system that led to a “legitimacy crisis” and a rise in crime. “Both may have contributed,” said Mr. Rosenfeld, who cautioned that more research and data is needed.
Sunday, July 24, 2016
Two new US Sentencing Commission "Quick Facts" on federal gun sentencing
The US Sentencing Commission late last week released two new Quick Facts publications, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format." Here are links to the latest publications and their summary description from the USSC:
In fiscal year 2015, there were 2,119 offenders convicted under 18 U.S.C. § 924(c) accounting for 3.0% of all offenders sentenced under the guidelines. The number of offenders convicted of multiple counts of section 924(c) has decreased from 174 offenders in fiscal year 2011 (7.5% of all section 924(c) offenders) to 119 in fiscal year 2015 (5.6% of all section 924(c) offenders).
In fiscal year 2015, there were 4,984 offenders convicted under 18 U.S.C. § 922(g) accounting for 7.0% of all offenders sentenced under the guidelines. The number of offenders sentenced under this statute has steadily decreased over the last five years from 5,761 in fiscal year 2011 to 4,984 offenders in fiscal year 2015.
Friday, July 22, 2016
"Possession, Child Pornography and Proportionality: Criminal Liability for Aggregate Harm Offenses"
The title of this post is the headline of this notable new article authored by Anthony Dillof and now available via SSRN. Here is the abstract:
Federal prosecution of individuals for possessing child pornography has risen steadily and dramatically over the last twenty years. As the number of prosecutions has increased, so have the penalties. Today a typical defendant charged with possessing child pornography can expect a seven-year prison sentence. The article considers whether such sentences are just, fair and proportionate. To answer this question, the article adopts a retributivist perspective on punishment. Retributivism, in turn, requires evaluating the wrongfulness of the conduct to be punished.
The article argues that while the possession of child pornography by a large group of persons in aggregate creates significant social harm — for example, a robust market for the production of child pornography — individual acts of possession, considered at the margin, have only a trivial impact. This raises a serious problem of disproportionality in punishment for retributivists. The article attempts to solve this problem by developing a theory of aggregate harm offenses. According to this theory, even acts that have little marginal impact may constitute serious moral wrongs insofar as they violate the principle of rule consequentialism. Rule consequentialism requires acting pursuant to a rule with desirable social consequences. The article develops a rationale for rule consequentialism and explores how rule consequentialist norms may be used to justify and explain not only child pornography possession laws, but also a broad group of superficially unrelated criminal offenses.
Thursday, July 21, 2016
Guest posting from Prof Mark Osler with advice to US Sentencing Commission on revising drug sentencing guidelines
Earlier this month, federal sentencing reform guru Mark Osler informed me that he put together some suggestions for the US Sentencing Commission in response to its request for public comment about proposed priorities. In turn, I urged Mark to put together a guest-post for this space to ensure his insights can be seen outside the Beltway. Here is what he sent my way:
Each year, the United States Sentencing Commission goes through a seasonal cycle; it starts and ends in May, when the Commission publishes proposed amendments (closing out one cycle) while setting out proposed priorities and inviting public comments to begin the next cycle. This year the public comment period lasts until July 25. You can get more complete information at www.ussc.gov.
The proposed priorities for this year are strikingly broad and encouraging for reform advocates. They include some specific items, including “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),” but also some fascinating broader priorities. The line that really caught my attention was this one: “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.”
For those fascinated by federal sentencing, could there be a more enticing invitation?
I have submitted my own comment, which Doug has kindly linked here [down below]. It grows out of the response I got to a New York Times op-ed I wrote in 2014, suggesting that the weight of narcotics used in a conspiracy is a lousy proxy for the culpability of any one conspirator, and that it would be much better to instead simply enhance sentences for those individuals who make the most money from a narcotics operation. After that piece ran, I was surprised at the group I heard from the most: sentencing judges. A few pointed out (correctly) that they had proposed this decades ago, while others simply affirmed the problem with weight of narcotics as the central metric for a drug sentence. And, of course, they had depressing stories to share of sentences they had been forced to give out (pre-Booker) to low-level players in large narcotics organizations.
Here is how my comment begins:
Currently, because of the structure and importance of the Drug Quantity Table at Guideline §2D1.1(c), the primary input of sentence computation in narcotics cases is the weight of the drugs at issue, either by an individual or conspiracy. However, weight of narcotics is not a good proxy for culpability because it unfairly punishes the actions of too many low-level traffickers. If a true kingpin imports 150 kilograms of cocaine into the country and pays a trucker $1,000 to haul it, both of them fall under Guideline §2D1.1(c)(2), which provides for a base offense level of 36. While guideline sections §3B1.1 & 1.2 (distinguishing roles in the offense) provide some level of differentiation, that differentiation will likely be at most a swing of six offense levels.
We all know that the one-off trucker is not nearly as culpable as the kingpin, but the guidelines don’t reflect that because weight-driven sentences are mandated by Guideline §2D1.1(c). Sentencing judges have chafed at the resulting failure of proportionality ever since the beginning of the guideline era.
The false proxy of narcotics weight creates problems with proportionality and disparities because it too often obscures actual role and culpability. Moreover, it imposes a complexity to the guidelines that is unnecessary.
After discussing the benefits and challenges of making such a change, I suggest three alternate ways to amend the guidelines and accomplish this goal.
Perhaps you agree with me, maybe you don’t, or it could be that you think there is a much cleaner route to simplicity, proportionality, and the reduction of disparities. I urge you not only to read the rest of my comment, but to submit your own while the window is still open.
"An Overlooked Key to Reversing Mass Incarceration: Reforming the Law to Reduce Prosecutorial Power in Plea Bargaining"
The title of this post is the title of this paper recently posted to SSRN and authored by Cynthia Alkon. Here is the abstract:
The need to “do something” about mass incarceration is now widely recognized. When President Obama announced plans to reform federal criminal legislation, he focused on the need to change how we handle non-violent drug offenders and parole violators. Previously, former Attorney General Eric Holder announced policies to make federal prosecutors “smart on crime.” These changes reflect, as President Obama noted, the increasing bipartisan consensus on the need for reform and the need to reduce our incarceration rates. However, proposals about what to reform, such as President Obama’s, tend to focus on some parts of criminal sentencing and on prosecutorial behavior as stand-alone issues. These reform suggestions do not consider the fact that ninety-four to ninety-seven percent of criminal cases are resolved through plea bargains and how the use of this process influences incarceration rates. Prosecutors hold extraordinary power in the criminal justice system. They not only decide what cases get filed, they also decide what charges and enhancements are added, and whether there will be a plea offer. The structure of our criminal justice system, at both the state and federal level, strengthens prosecutorial power and create a plea bargaining environment with extreme power imbalances. Prosecutors use this power to put pressure on defendants to accept plea deals, which contribute to the high incarceration rates in the United States. Therefore, any reform intended to make a meaningful reduction in incarceration rates should recognize the power that prosecutors hold and include reform aimed at changing this underlying structure.
As is well documented, the United States has high incarceration rates and imprisons more people than any nation in the world. African American and Latino communities suffer even higher incarceration rates. Our incarceration rates increased dramatically in the 1980s and into the 1990s. Some commentators identify the “war on drugs” as a major contributor to increasing incarceration rates during this period. Others suggest that the increase is due to a number of factors including changes in criminal codes that increased potential penalties for crimes across the board, not only for drug crimes. One scholar, John F. Pfaff, concludes that the single biggest reason for increased incarceration rates since 1990 is not an increase in arrests, or harsher sentencing, or the drug war, but instead is an increase in the percentage of felony filings per arrest. Pfaff concludes that the reason there are more filings is because prosecutors are filing a higher percentage of cases and therefore prosecutors are the predominate reason for mass incarceration.
This article will begin by briefly describing how plea bargaining works and the often coercive atmosphere of plea bargaining that contributes to mass incarceration. This article will then discuss Pfaff’s conclusions, based on his empirical studies, that prosecutors are the key reason for mass incarceration. Building on Pfaff’s conclusions on the key role prosecutors play in mass incarceration, this article will discuss how the current structure of both state and federal codes reinforce prosecutorial power, particularly in the plea bargaining process. This article will then discuss two proposals for legislative reform that could decrease the coercive atmosphere of plea bargaining. First, this article will recommend revising how crimes are defined, reducing the number of crimes that can be charged as both misdemeanors and felonies and reducing some felonies to misdemeanors. Second, this article will recommend reducing potential punishment ranges by eliminating mandatory minimums for most crimes and for enhancements. Legislative change alone will not reverse mass incarceration, but targeted legislative reform could help to change the overly coercive atmosphere of plea bargaining. This effort can help to change the prosecutorial culture that surrounds plea bargaining and contribute to reducing incarceration rates.
Tuesday, July 19, 2016
Federal judge refuses to accept plea of LA County Sheriff Lee Baca for obstruction because of inadequacy of maximum sentence of six months in
As reported in this lengthy Los Angeles Times piece, headlined "Judge throws out ex-L.A. County Sheriff Lee Baca's plea deal, saying six months in prison not enough," a federal judge decided that a high-profile federal defendant had cut too sweet a plea deal to resolve charges of obstruction of justice. Here are the interesting details concerning a rare (but not unprecedented) district court decision:
A federal judge on Monday threw out a plea agreement that would have given former Los Angeles County Sheriff Lee Baca a maximum of six months in prison, saying the sentence was too lenient considering Baca’s role in obstructing an FBI investigation into the county jails. Addressing a downtown courtroom packed with Baca’s supporters, U.S. District Court Judge Percy Anderson said the deal “would trivialize the seriousness of the offenses … the need for a just punishment [and] the need to deter others.”
Baca, 74, had pleaded guilty in February to a single charge of lying to federal investigators. But the former sheriff’s involvement in trying to derail the investigation reached further than that, Anderson said. At stake was what the investigators were trying to expose, Anderson said: an “us-versus-them” culture in which deputies covered up for one another and responded to inmates with enough violence to send them to the hospital.
Six months in prison for the man who ran the Sheriff’s Department “would not address the gross abuse of the public’s trust … including the need to restore the public’s trust in law enforcement and the criminal justice system,” Anderson said.
The judge said he would allow Baca to withdraw his guilty plea, setting a new hearing date for Aug. 1. The maximum sentence for the false statement charge is five years -- the same amount of time that Baca’s former No. 2, Paul Tanaka, received last month after going to trial in a related obstruction-of-justice case. Seven lower-ranking sheriff’s officials who have been convicted and sentenced in the obstruction case received a year and a half to more than three years in prison.
Baca’s plea agreement had called for a sentence ranging from probation to six months in prison. Prosecutors have said they agreed to the deal in part because of Baca’s willingness to plead guilty. Baca’s attorney, Michael Zweiback, argued that the former sheriff should not serve any prison time because he is in the early stages of Alzheimer’s disease.
Baca must now choose among several unappealing options. He could go ahead with the sentencing and accept whatever punishment Anderson has in mind. He could withdraw his guilty plea and go to trial, taking his chances with whatever charges the government might decide to bring. He could negotiate a new deal with federal prosecutors for a longer sentence that the judge would find more acceptable.
After Monday’s hearing, Zweiback said he was disappointed with the judge’s decision but hoped to resume talks with prosecutors. He said that if he cannot reach an agreement that includes a specific sentence, rather than an open-ended guilty plea, he will not leave his client’s fate in Anderson's hands. “At that point, we might as well take our chances at trial,” Zweiback said.
Baca’s Alzheimer’s could be a factor if the case heads to trial and his ability to understand the proceedings deteriorates. The trial could be put on hold if he is declared mentally incompetent. “If the government believes it’s two years in ... getting to trial and sentencing him, that could leave Mr. Baca in very bad shape,” Zweiback said....
Legal experts said Anderson's move was unusual but not unexpected, considering his law-and-order reputation and comments he has made during sentencing in the related cases. “We already knew the defendant was facing a federal judge who believed these kinds of acts were as serious as they come,” said Miriam Krinsky, a former federal prosecutor who was the executive director of a county commission that investigated brutality by jail deputies and who served as a top aide to Baca’s successor, Jim McDonnell, during his first year in office....
Laurie Levenson, a Loyola Law School professor and former federal prosecutor, said Anderson was not likely to be “swayed by sympathy or the emotional aspects of the case.” She said he was likely to be especially unforgiving of law enforcement officials who did not fulfill their duties. “He views this type of abuse of trust more seriously, notwithstanding Baca’s health concerns,” Levenson said.
Federal sentencing law provides that people who are higher up in an organization -- mob bosses, for example — are more culpable than lower-level members, said Joseph Akrotirianakis, another former federal prosecutor now in private practice. “Today’s events are not entirely surprising in light of the sentence that Mr. Tanaka received,” Akrotirianakis said. “That was not a fact known to the government at the time that Baca entered into his plea.”...
Brian Moriguchi, head of the union that represents Sheriff’s Department supervisors, said Baca is responsible for the actions of his subordinates, especially Tanaka, and should receive more than six months considering the sentences the others will serve.
Many sheriff's deputies have been closely watching the criminal prosecutions to see if the punishments for former bosses would approach those of lower-ranking employees following their orders. “It’s not only widespread in the department, it’s widespread in society — the feeling that those who have power seem to be exempt from the same rules as everyone else,” Moriguchi said.
Thursday, July 14, 2016
First trader federally convicted for "spoofing" gets significant (below-guideline) prison term
As reported in this local article, headlined "Trader Michael Coscia 1st in nation to be sentenced under 'anti-spoofing' law," a notable new type of federal white-collar offender got a notable old-school type of punishment yesterday in federal court in Chicago. Here are some details:
In the outcome of a closely watched trial that could set precedent, convicted futures trader Michael Coscia was sentenced in federal court Wednesday to three years in prison and two years of supervised release for spoofing and commodities fraud.
Coscia, 54, of Rumson, N.J., was the first defendant in the country to stand trial under new anti-spoofing laws included in the 2010 Dodd-Frank Act. In November, he was found guilty of six counts of spoofing — the use of computer algorithms to rig markets in fractions of a second — and six counts of commodities fraud.
Prosecutors had recommended five to seven years in prison, while the defense had sought probation. Ultimately, U.S. District Judge Harry Leinenweber settled in the middle, citing Coscia's age and health, as well as the ambiguous amount of financial loss incurred by the victims.
"This is a very serious crime and it has serious consequences. ... (Coscia) has helped a lot of people over the years, not only family and friends, but also fellow traders. But he also engaged in spoofing and had no financial need to do so," Leinenweber said shortly before announcing the sentence.
Federal prosecutors were pleased with the outcome. "There was and has been this sort of suggestion throughout the course of this prosecution that this criminal case is somehow murky or unclear because of technology, because of the use of algorithms. Well, guess what? A lie is a lie. Deceit is deceit. ... The defendant cheated faceless victims out of money through deceit over the internet. Today's result and sentence, I think, is a reflection of that," U.S. Attorney Zachary Fardon said.
Assistant U.S. Attorney Sunil Harjani added that the sentence of imprisonment would send a message to traders in Chicago and throughout the U.S.
Coscia made about $1.4 million in only about two months by victimizing traders including those at Citadel, the Chicago financial services firm formed by billionaire Ken Griffin, when he manipulated the prices of futures contracts on the Chicago Mercantile Exchange, prosecutors have said.
Upon leaving the courtroom, Coscia declined to comment. He smiled as he hugged friends and family who had come to show support. During the hearing, he gave a brief statement asking for leniency and saying that he takes responsibility for his actions.
Stephen Senderowitz, Coscia's attorney, said he will file an appeal. During the hearing, Senderowitz emphasized that it's not clear how much money any individual trader lost because of Coscia's actions. That will be among the issues argued further during the appeal, during which the defense will also challenge the constitutionality of the spoofing law, he said afterward....
The Coscia case is "just the tip of the iceberg" in terms of the government's increasingly active role in such prosecutions, said Renato Mariotti, lead prosecutor on the case before recently joining a private practice. "For years, many people scoffed at the notion that the government could explain high-frequency trading strategies to judges and juries. No one is laughing anymore," Mariotti said in a statement after the sentencing.
Coscia commissioned the design of computer programs, known as algorithms, to manipulate prices in the markets of various commodities, including gold, soybean meal, soybean oil, high-grade copper, Euro FX and Pounds FX currency futures, prosecutors said.
Among Coscia's family, there was some feeling that the sentencing could have gone worse. During the hearing, Anthony Coscia, Michael Coscia's uncle and a counselor at a Catholic high school in Brooklyn, N.Y., quoted passages from Shakespeare and the Bible while speaking on behalf of his nephew's character.... "The judge seemed to show some compassion," the elder Coscia said as he left the courtroom.
Tuesday, July 12, 2016
"Pokémon Go Craze Sparks Worries About Sex Offenders, Cybercriminals"
My students and regular readers know I am eager to assert that any and every aspect of modern law and life has a sentencing/crime and punishment angle. In service to that claim, I could not resist highlighting this new local NYC article which shares the headline of this post and demonstrates that the latest gaming craze in not immune from criminal justice concerns. Here are the (serious?) particulars:
The Pokémon Go app has been all the rage in recent days, but new concerns have mounted about criminals abusing the game. As CBS2’s Jennifer McLogan reported, there are worries that sex offenders might use the app to lure children, and cybercriminals might steal people’s information.
Sulma Rivas is part of a Pokémon Go scavenger hunt adventure craze. So are her three children. Rivas keeps a watchful eye. “I don’t want to do it when my mom’s not around, because I could get hurt,” said Mylie Rivas, 10.
Pokémon Go is exploding in popularity, and Babylon town officials have been monitoring hundreds of people of all ages circling the lake in Argyle Park -- with their heads down and their smartphones in hand. When asked if he was playing unsupervised, Ethan Fortaleza, 12, smiled and said, “Maybe.” Ethan said his parents dropped him off in a safe area. But county officials are worried about the luring component of the game.
With 38,000 registered sex offenders in New York state, police fear that it might be easy for someone to fake a Pokémon Go ID and stalk a child player. “The people who are the quickest to adapt to new trends in social media technology are criminals and predators,” said Suffolk County Executive Steve Bellone. Bellone wants Pokémon developer Niantic to install e-stop technology, making it tougher for predators to sign on and demanding more checks and balances.
After downloading the app, players are asked to sign up with their Google accounts, using existing credentials to ensure the process is fast and simple. But that can put at risk users’ emails, cameras, photos, and storage. That pool of data could be a boon for cybercriminals.
“I haven’t heard anything about that. That would be unfortunate,” said Samara Katini, 21. “I probably wouldn’t play the game if that was a real problem.”...
Ninatic said it is working closely with authorities to keep all players safe. The company said it has no plans to share the data it collects with third parties.
Federal prosecutors want former Gov Blagojevich to get same 14-year prison term at resentencing despite a few vacated convictions
As reported in this local article, headlined "Feds: Give Blago 14 years all over again," federal prosecutors do not believe that the partial success that former Illinois governor had when appealing his corruption convictions should produce any benefit at his upcoming resentencing. Here are the details from resentencing memos filed this week:
Federal prosecutors want former Gov. Rod Blagojevich sentenced to 14 years in prison all over again. But Blagojevich hopes the federal judge who originally hammered him with that 14-year sentence will reconsider and give him as little as five years behind bars.
Blagojevich has already been locked up for four years in a Colorado prison. Next month, his battle to overturn his conviction could land him back in front of U.S. District Judge James Zagel for re-sentencing, after years of cries that Blagojevich was dealt too severe a punishment. The feds stood by the sentence in a sentencing memo filed just before midnight Monday, though.
“Corruption spreads unless it is deterred,” Assistant U.S. Attorney Debra Riggs Bonamici wrote in the memo. “Public officials who gain from corrupt deals are incentivized to do more, and successes inspire other public officials to see if they can do it too.”
Meanwhile, Blagojevich’s lawyers made an appeal for mercy and opened a window into Blagojevich’s four years behind bars. They said the former governor worked in the kitchen warehouse, taught Civil War and World War II history and studied music as a way to connect to his daughter Annie, who studied classical piano. Lawyer Leonard Goodman wrote that Blagojevich formed a band with another inmate called “The Jailhouse Rockers” that broke up when the other inmate was released.
“Blagojevich’s number one priority during his four plus years of incarceration has been to repair and mitigate the harm that his actions have done to his wife and children,” Goodman wrote. “Blagojevich speaks to his family nearly every evening.”
Some older related posts on the Blagojevich case:
- You make the sentencing call: What sentence should Blago get?
- Early buzz that feds think Rod Blagojevich's guideline range is 30 years to life in prison
- Feds asking for prison term of 15 to 20 years for Rod Blagojevich
- Insightful commentary questions why Blago is getting huge break from federal prosecutors
- "Prison is too good for Blago"
- Bold (and misguided?) prediction of 20-25 years in the federal pen for Blago
- Do would-be white-collar offenders actually "get the message" from long sentences?
- Blagojevich sentencing and the failings (and limits?) of the federal sentencing guidelines
- "Ex-Gov. Rod Blagojevich sentenced to 14 years"
Monday, July 11, 2016
PBS widely premiering sex offender documentary "Prevert Park"
As detailed via this PBS page, tonight is the official premiere for a notable film about a notable group of criminal offenders. The film is titled "Pervert Park," and here are excepts from the PBS description of this hour-long film:
Pervert Park by Scandinavian filmmakers Frida Barkfors and Lasse Barkfors takes place at Florida Justice Transitions in St. Petersburg, Fla., founded in 1996 by Nancy Morais, the mother of a sex offender who had difficulty finding a place to live after his conviction. It looks like your average trailer park, but this is the place 120 residents call home. Their lives are heavily regulated: Offenders are forbidden by law from living within 1,000 feet of any place children congregate. The residents are required to check in with the Florida State Police twice a year, are monitored by satellite surveillance and are listed in a sex-offender registry easily available online as a phone app. But the park also provides space for small businesses, including a hair salon. All of the program’s staff are convicted sex offenders as well.
There are currently more than 800,000 convicted sex offenders in the United States, and the country has seen an estimated 15% increase in registered sex offenders over the past five years. But the film offers a mindset-challenging look at this deeply stigmatized category of criminals. According to Florida Justice Transitions president and CEO Jim Broderick, the park’s residents want to “become productive members of society and want to give back.”
The documentary does not stint on candid discussions of the offenses committed by the residents, who say they feel free to open up in-group sessions led by therapist Don Sweeney. Stories vary from that of Jamie, a 22-year-old man caught in an Internet sting after expressing interest in having sex with a minor — which Sweeney characterizes as a common case of entrapment — to far more disturbing and unforgivable crimes.
A resident named Patrick confesses to an early infatuation with pornography and a life marked by failed personal relationships. He raped a young Mexican girl, which he characterized as an act of revenge “against all women.” Several residents tell of being sexually abused as children. Will says he was “fondled by a babysitter when I was 6 years old.” As an adult, he exposed himself to a young girl and spent several years in jail.
A harrowing story is told by Tracy, who says her father began having sex with her when she was a child. She was later abused by her mother’s boyfriends, which “caused my body to want those same feelings.” She eventually had sex with cousins and underwent an abortion at 11 years old; she would later have sex with her own son. According to therapist Sweeney, Tracy was “groomed” for abuse by her father, who insisted sex was a natural way to show affection. She in turn groomed her son by asking his “permission.” He continued the cycle of abuse, later sexually assaulting a 3-year-old boy....
Pervert Park raises significant questions. Should America give these criminals a second chance? And can their experiences help in devising a successful strategy for reducing the growing number of sex crimes?
“The typical reaction of normal citizens is, ‘We don’t care. They committed a crime and we don’t care if they die,'” says Sweeney. Yet one offender says it is time not only for greater public understanding of sexual crimes, but for the offenders to take the lead in stating their case. “You have to look at the bigger picture,” he says. “Nobody will stand up and fight for us, and that’s why we’ve got to do something about it now.”
“These are the crimes that are often too painful or uncomfortable to discuss,” say filmmakers Frida and Lasse Barkfors. “These are the people no one wants to live amongst. These are the neighbors we wish away and, through sex offender laws and labeling, literally and figuratively move to the outskirts of our towns and our lives. And yet there they are, 1,000 feet away from our schools and our parks and playgrounds and churches.
“Although many of their crimes are unspeakable, what do we, as a community, gain from our willful silence? If we hope to curb the cycle and culture of sexual violence, is there value in exploring the lives of sex offenders, regardless of how heartbreaking and difficult it might be?”
Thursday, July 07, 2016
"Can Obama Pardon Millions of Immigrants?"
The question in the title of this post is the headline of this notable New York Times commentary authored by Peter Markowitz. Here are excerpts:
When the history of President Obama’s legacy on immigration is written, he will not go down as the president who boldly acted to protect millions of families from the brutality of our nation’s unforgiving immigration laws. The Supreme Court made sure of that last month, when it deadlocked on the legality of his program to defer the deportation of parents of American citizens and residents. Instead, he will be judged on what he actually did: deport more immigrants than any other president in American history, earning him the moniker “deporter in chief.”
However, President Obama can still act to bring humanity and justice to an immigration system notoriously lacking in both. He can do so by using the power the Constitution grants him — and only him — to pardon individuals for “offenses against the United States.”
The debate over the deportation deferral program has been framed as a question of the division of powers. Both sides agree that Congress is the only entity that gets to define offenses against the United States.... There is one area, however, where the president’s unilateral ability to forgo punishment is uncontested and supported by over a hundred years of Supreme Court precedent: the pardon power. It has been consistently interpreted to include the power to grant broad amnesties from prosecution to large groups when the president deems it in the public interest....
It’s a common assumption that pardons can be used only for criminal offenses, and it’s true that they have not been used before for civil immigration violations. However, the Constitution extends the power to all “offenses against the United States,” which can be interpreted more broadly than just criminal offenses.
A pardon could not achieve everything the deferred deportation program aspired to — notably, it could not deliver work permits. However, it has a certain operational elegance to it that would avoid many of the political battles surrounding the deferral program....
President Obama has plenty of time left to issue such a pardon. There is solid historical and legal precedent for him to do so. And although it would probably bring about legal challenges, opponents could not use the legal system to simply run out the clock, as they have with his deferred deportation program. A deferred deportation program could be undone by a President Trump. Unconditional pardons, in contrast, are irrevocable.
Finally, some would surely argue that a pardon protecting a large category of immigrants from deportation would, just like the deportation deferral program, effectively amount to a repeal of laws enacted by Congress. However, pardons do nothing to alter the law. They protect certain past offenders from punishment and prosecution, but leave the law unchanged as applied to any future violators.
President Obama has deported around 2.5 million people. That is about the same number as were deported in the entire 20th century. His apparent strategy was to demonstrate his bona fides on enforcement in order to persuade recalcitrant Republicans to work with him on immigration reform. It didn’t work. It turns out that you don’t convince people to be more humane on immigration by deporting immigrants hand over fist. We are left with a brutal legacy of millions of families torn apart, many simply for doing what they needed to do to protect and feed their children. President Obama will not be judged on his intentions or his attempts on immigration, but rather on his real impact. This is his last chance to establish a legacy of pragmatic compassion.
Does Massachusetts have a problem with under-punishment of convicted rapists?
The question in the title of this post is prompted by this new Boston Globe article headlined "Dozens of convicted rapists in Mass. have avoided prison. " Here are excerpts:
More than three dozen people convicted of rape in Massachusetts in recent years have received no prison time for their crimes, state data show, including several who had lengthy criminal histories. A Globe review of Massachusetts court system statistics on 305 rape convictions in the 12-year period that concluded at the end of June 2013 found that in 42 cases, or about 14 percent of the time, defendants received no prison time.
They included two defendants who had a record of either “repetitive” or “violent” convictions, and three had a “serious record.” Seven had a “moderate record” of convictions, while 30 had either never been convicted of a crime or had been convicted of what the court system considered minor offenses. The figures come from annual reports by the Executive Office of the Trial Court.
“If you look at any other violent, serious felony, this would never happen,” said Colby Bruno, an attorney at the Victim Rights Law Center in Boston. Rapists should not be given leniency when it comes to sentencing, Bruno said.
In Massachusetts, state sentencing guidelines call for anyone convicted of certain serious crimes, including rape, to be sentenced to some period of incarceration. For rape, the minimum recommended sentence is five years. But judges aren’t required to follow the guidelines. The Massachusetts data reviewed by the Globe showed that convicted rapists who were incarcerated were typically sentenced to between five and 10 years in prison, and that defendants with more troubling criminal histories usually received lengthier sentences....
National statistics on criminal sentencing are limited. But a federal study on cases that began in 2009 in large urban US counties found 11 percent of convicted rapists were not sentenced to jail or prison time. For those who were incarcerated, the median prison sentence length was 10 years....
The Globe’s review of the data focused on convictions under Massachusetts’ definition of rape, which is described as nonconsensual sex with someone by using force or the threat of bodily injury. The review did not look at other classifications of the crime, such as aggravated, statutory, or child rape. The reports did not detail specific cases. The state trial court office, which is exempt from public record disclosure laws, declined to release further details. The most recent year for which data was available was fiscal year 2013.
Defense attorneys, as well as former judges and prosecutors, offered several potential reasons why someone convicted of rape might not get prison time. One of the most likely scenarios, experts said, would be a plea bargain. A prosecutor with a weak case could offer, in exchange for a guilty plea, to recommend a lesser sentence such as probation to the judge.
Getting a conviction and at least some punishment for the defendant is sometimes viewed as a better option than risking losing the case at trial. It also removes the possible need to bring a traumatized victim to testify. “The ultimate goal is to decrease crime and hold people responsible, and sometimes that can come in different forms and packages,” said law professor Mary G. Leary, a former prosecutor whose focus included sexual assault cases.
In another possible scenario, a victim might ask the judge not to incarcerate the assailant. “Sometimes, when you have parties who know each other, they want the person convicted, but they don’t want them to be incarcerated,” said Christine Cole, executive director of the Crime & Justice Institute, part of the Boston-based nonprofit Community Resources for Justice.
In addition, judges carefully weigh many factors when making sentencing decisions. Factors can include the specific facts of the crime, and whether the defendant cooperated with prosecutors, showed remorse, has a criminal past, and is likely to reoffend, specialists said. The details of each case are critical, said Nancy Gertner, a former federal judge in Boston and a former defense attorney. For example, Gertner said, she routinely encountered cases where defendants, particularly those with drug addiction problems, “wound up with these very long rap sheets, but of relatively minor offenses.”
Some observers, including Cole and Gertner, said they believe judges sentence appropriately in the vast majority of cases. Martin Rosenthal, a longtime criminal defense attorney and Massachusetts Sentencing Commission member, agreed, saying that while “it’s certainly unusual for someone to be convicted of rape and not get incarcerated . . . I don’t think that rape is being diminished in any way” by judges or the justice system. “The idea that we’re being soft on rape as a society is just not true,” he said.
Wednesday, July 06, 2016
Split Eighth Circuit panel affirms three-month sentence for Iowa egg executives whose company caused salmonella outbreak
As reported in this AP piece, the Eighth Circuit today rejected an array of challenges to upheld short jail sentences for two egg industry executives who pleaded guilty to misdemeanor corporate crimes. Here is more about the case and the ruling:
In a 2-1 decision, the 8th U.S. Circuit Court of Appeals upheld three-month jail sentences issued last year to 82-year-old Austin "Jack" DeCoster and his son Peter DeCoster, 53.
The DeCosters were aware of unsanitary conditions at their sprawling Iowa egg farms but failed to improve them before the outbreak, which sickened up to 56,000 people and left some with permanent injuries, Judge Diana Murphy wrote. "We conclude that the record here shows that the DeCosters are liable for negligently failing to prevent the salmonella outbreak," Murphy wrote, joined by Judge Raymond Gruender.
The case, a rare prosecution against those responsible for an outbreak of foodborne illness, was closely watched by advocates for consumer safety and food and drug manufacturers. The Justice Department praised the ruling, saying the DeCosters disregarded basic food safety standards for years and deserved jail time....
At issue was whether corporate executives could face imprisonment for violating the federal Food, Drug, and Cosmetic Act, which allows "responsible corporate agents" to be held criminally liable even if they were not aware of the wrongdoing. The DeCosters, who owned and operated Quality Egg LLC, had pleaded guilty to violating the law by introducing adulterated eggs into interstate commerce. They said they did not know the eggs were contaminated but acknowledged they were in a position to stop the problems had they known.
U.S. District Judge Mark Bennett ordered the jail time in April 2015, saying they knew or should have known about the risks posed by the presence of salmonella in and around millions of egg-laying hens. But he allowed the DeCosters to stay free while they appealed the sentences, which they argued were unconstitutional and unreasonably harsh.
Business groups, including the U.S. Chamber of Commerce and the National Association of Manufacturers, filed friend-of-the-court briefs backing the DeCosters' appeal. They argued that it would be unfair to send corporate executives to prison for violations that they were unaware of or that were committed by subordinates.
Murphy rejected those arguments, saying Congress did not require executives to have known about the violations to be subject to the food safety law's criminal penalties. She said the jail terms were relatively short, within federal guidelines and "not grossly disproportionate to the gravity of their misdemeanor offenses." Gruender added in a concurring opinion that the DeCosters were not being punished for the acts of others, saying their own failure to take steps to prevent the outbreak was to blame.
Dissenting Judge C. Arlen Beam said prosecutors failed to show that the DeCosters had criminal intent, and therefore "there is no precedent" for sending them to jail. He said they were not aware the products were tainted with salmonella and that they immediately recalled hundreds of millions of eggs once the outbreak was confirmed "at great expense."...
Quality Egg paid a $6.8 million fine after pleading guilty to felony charges of shipping eggs with false processing and expiration dates and bribing a U.S. Department of Agriculture inspector to approve sales of poor-quality eggs.
The full ruling in US v. DeCoster, No. 15-1890 (8th Cir. July 6, 2016), is available at this link.
Tuesday, July 05, 2016
Anyone eager to discuss what likely will be the highest-profile "declination" in federal criminal justice history?
Lots of smart people recognize and discuss in lots of ways the unique and uniquely important role that prosecutors play in the operation of modern US criminal justice systems, and one theme of a lot of recent commentary and analysis is how little information we generally have about how prosecutors make decisions about who and how to prosecute (and who not to prosecute) for various alleged wrongdoing. In particular, it is sometimes said that too often we fail to even know about a decision and the decision-making process of a prosecutor to decline to bring charges after a significant criminal justice investigation.
I provide this context for anyone eager to discuss and debate this high-profile news as reported in this New York Times article headlined "F.B.I. Recommends No Charges Against Hillary Clinton for Use of Personal Email." As source materials for anyone eager to discuss this recommended declination, here is the full text of today's statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System." It includes these key passages:
Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information....
While not the focus of our investigation, we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government....
In our system, the prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped collect. Although we don’t normally make public our recommendations to the prosecutors, we frequently make recommendations and engage in productive conversations with prosecutors about what resolution may be appropriate, given the evidence. In this case, given the importance of the matter, I think unusual transparency is in order.
Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.
In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.
To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.
As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.
UPDATE: The folks at Crime & Copnsequences already have this quartet of posts up discussing Comey's findings and statement:
- Q: Did Director Comey Make a Mistake?
- Claims v. Findings on the Clinton E-mail Issue
- Never Hillary
- Hillary Clinton Gets a Pass
Examining with decades of hindsight a (not-so-violent) violent crime spree resulting in LWOP sentences
The front-page of today's New York Times has this interesting piece examining one notable defendant serving multiple LWOP sentences for violent crimes that do not quite seem to justify the extreme sentence decades later. The piece is headlined "One Robber’s 3 Life Sentences: ’90s Legacy Fills Prisons Today," and it gets started this way:
Lenny Singleton is the first to admit that he deserved an extended stay behind bars. To fuel his crack habit back in 1995, he walked into 13 stores over eight days and either distracted a clerk or pretended to have a concealed gun before stealing from the cash register. One time, he was armed with a knife with a six-inch blade that he had brought from his kitchen.
Mr. Singleton, 28 at the time, was charged with robbery and accepted a plea deal, fully expecting to receive a long jail sentence. But a confluence of factors worked against him, including the particularly hard-nosed judge who sentenced him and the zero-tolerance ethos of the time against users of crack cocaine. His sentence was very long: two life sentences. And another 100 years. And no possibility for parole.
There is a growing consensus that the criminal justice system has incarcerated too many Americans for too many years, with liberals and conservatives alike denouncing the economic and social costs of holding 2.2 million people in the nation’s prisons and jails. And Congress is currently debating a criminal justice bill that, among other provisions, would reduce mandatory minimum sentences for nonviolent offenders.
But a divide has opened within the reform movement over how to address prisoners who have been convicted of violent crimes, including people like Mr. Singleton, who threatened shop owners but did not harm anyone. Groups like the American Civil Liberties Union favor a swift 50 percent reduction in prison populations, while conservative prison reform organizations like Right on Crime prioritize the release of nonviolent offenders and worry that releasing others could backfire and reduce public support.
Nonviolent drug offenders make up only about 17 percent of all state prison inmates around the nation, while violent offenders make up more than 50 percent, according to federal data.
As the prison population has increased sharply over the past 30 years, so too has the number of those sentenced to life. Mr. Singleton is among nearly 160,000 prisoners serving life sentences — roughly the population of Eugene, Ore. The number of such inmates has more than quadrupled since 1984, and now about one in nine prison inmates is serving a life term, federal data shows.
“People are celebrating the stabilization of the prison population in recent years, but the scale of mass incarceration is so substantial that meaningful reduction is not going to happen by tinkering around the edges,” said Marc Mauer, the executive director of the Sentencing Project, a Washington-based nonprofit that advocates changes in sentencing policy.
Saturday, July 02, 2016
"Couriers Not Kingpins: Toward a More Just Federal Sentencing Regime for Defendants Who Deliver Drugs"
The title of this post is the title of this new paper authored by Kevin Lerman and recently posted to SSRN. Here is the abstract:
After decades of tweaking and modification, the federal sentencing guidelines have yet to meaningfully separate high-level drug traffickers from their unsophisticated underlings. The Mitigating Role Guideline — designed in part to alleviate the effects of quantity-based drug sentencing — fails to reach many of the people prosecuted for their work at the lowest rungs of drug-trafficking hierarchies. This includes couriers and mules who transport drugs for small amounts of money.
Quantity-based sentencing guidelines qualify couriers and mules for extremely high sentences, which they must work down from by proving they deserve one or more sentencing reductions. The Mitigating Role Guideline requires defendants to prove their role makes them “substantially less culpable” than similarly situated drug traffickers. This mushy standard — along with a host of other obstacles — results in denial of sentencing reductions. Mitigating Role is all-the-more treacherous because it triggers further sentencing reduction that frequently apply to couriers and mules. These reductions are: (1) Role Cap, which counteracts quantity-based calculations that the Sentencing Commission has determined overstate low-level drug defendants’ culpability; and (2) the Methamphetamine Importation Enhancement, which extends sentences unless mitigating role is granted.
This Paper argues the Mitigating Role Guideline must be amended to more consistently account for low-level defendants. An amended guideline should assess defendants’ functional roles rather than engage in an obscure comparison with so-called average participants. It should expressly disavow “indispensability” analysis, which incorrectly equates basic but-for causation with culpability. And the guideline should expressly distinguish between the analysis required for Mitigating Role and the analysis for Aberrant Behavior. Conflation of the two guidelines frequently leads to denials of sentencing reductions. Finally, given past failures, guidelines depending on Mitigating Role should no longer depend on it. Rather, they should be "de-coupled," so they take effect for any defendant’s role that is not aggravating. Because quantity-based guidelines are perilously high for all but a tiny fraction of violent drug trafficking defendants, these reductions for Role Cap and subtraction of the Methamphetamine Enhancement should be applied presumptively to limit the impact of overly harsh role determinations.
Thursday, June 30, 2016
Highlighting what brought Justice Thomas and Sotomayor together in Voisine
Noah Feldman has this effective Bloomberg commentary about the recent SCOTUS Voisine ruling headlined "When Opposites Converge Over Domestic Violence." Here are excerpts:
Some two-thirds of the states define assault in a way that includes reckless conduct. The court was therefore under substantial practical pressure to hold that reckless misdemeanor domestic assaults count for purposes of the federal gun law. If it had not, the federal law would have had to be changed or else it wouldn't have applied in those states....
Thomas’s vote [in dissent] can be explained partly on the basis that he doesn’t want to infringe gun ownership. He added a final section to his dissent suggesting as much. But Sotomayor, who didn’t join that section of Thomas’s dissent, can’t have been actuated by this motive. So why did the court’s most liberal member join its most conservative?
What Thomas and Sotomayor share in common -- along with being the court’s two members of racial minorities -- is a long-term concern with the overreach of federal criminal law. Thomas’s worry has to do with federalism and the encroachment of the federal government into state law matters. Sotomayor’s concern is more with the status of the individual defendant, who may be subject to long federal sentences.
Yet it’s noteworthy that both right and left saw the court’s decision as potentially troubling. Neither Thomas nor Sotomayor is an apologist for domestic violence. But both saw the court as extending the reach of federal criminal law unnecessarily under the shadow of concern about the dangers of domestic violence. In their own way, each tries to be a conscience on a court that often acts pragmatically. This time, the two consciences converged.
Prior related post:
- By vote of 6-2, SCOTUS upholds broad application of federal prohibition on firearm possession by certain misdemeanants
Wednesday, June 29, 2016
US Sentencing Commission publishes "Overview of Federal Criminal Cases – Fiscal Year 2015"
On Monday, the US Sentencing Commission released this new data report, excitingly titled "Overview of Federal Criminal Cases – Fiscal Year 2015." This USSC webpage provides this summary of the report's contents and findings:
The United States Sentencing Commission received information on 71,184 federal criminal cases in which the offender was sentenced in fiscal year 2015. Among these cases, 71,003 involved an individual offender and 181 involved a corporation or other “organizational” offender. The Commission also received information on 24,743 cases in which the court resentenced the offender or modified the sentence that had been previously imposed. This publication provides an overview of those cases [and includes these key findings]:
The 71,003 individual original cases reported to the Commission in fiscal year 2015 represent a decrease of 4,833 (6.4%) cases from fiscal year 2014.
Drug cases continued to be the most common type of federal case. The 22,631 drug cases reported to the Commission in fiscal year 2015 accounted for 31.8 percent of all cases report to the Commission.
Immigration cases were the next most common, accounting for 29.3 percent of the total federal caseload. In fiscal year 2011, immigration cases were the most common federal crime; however, since that year the number of these cases has steadily declined.
In fiscal year 2015, an imprisonment sentence was imposed on 87.3 percent of all offenders. Another 7.2 percent of offenders received a sentence of probation (i.e., where no type of confinement was imposed), a rate that has decreased over time from a high of 15.3 percent in 1990.
Almost three-quarters of offenders sentenced in fiscal year 2015 received a sentence of less than five years.
Methamphetamine offenses were the most common drug trafficking offenses and were the most severely punished drug crime in fiscal year 2015.
The proportion of drug offenders convicted of an offense carrying a mandatory minimum penalty was the lowest it has been since 1993.
June 29, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (0)
Monday, June 27, 2016
Per the Chief, SCOTUS unanimously vacates former Gov's conviction while adopting "more bounded interpretation" of corruption statute
Wrapping up yet another remarkable Term with a notable bit of unanimity, the Supreme Court's final opinion for this SCOTUS season was a win for a high-profile federal defendant McDonnell v. United States, No. 15-474 (S. Ct. June 27, 2016) (available here). Chief Justice Roberts authored the opinion for the unanimous Court, and here are some key excerpts from the start and center of the ruling:
In 2014, the Federal Government indicted former Virginia Governor Robert McDonnell and his wife, Maureen McDonnell, on bribery charges. The charges related to the acceptance by the McDonnells of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams, while Governor McDonnell was in office. Williams was the chief executive officer of Star Scientific, a Virginia-based company that had developed a nutritional supplement made from anatabine, a compound found in tobacco. Star Scientific hoped that Virginia’s public universities would perform research studies on anatabine, and Williams wanted Governor McDonnell’s assistance in obtaining those studies.
To convict the McDonnells of bribery, the Government was required to show that Governor McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts. The parties did not agree, however, on what counts as an “official act.” The Government alleged in the indictment, and maintains on appeal, that Governor McDonnell committed at least five “official acts.” Those acts included “arranging meetings” for Williams with other Virginia officials to discuss Star Scientific’s product, “hosting” events for Star Scientific at the Governor’s Mansion, and “contacting other government officials” concerning studies of anatabine. Supp. App. 47–48. The Government also argued more broadly that these activities constituted “official action” because they related to Virginia business development, a priority of Governor McDonnell’s administration. Governor McDonnell contends that merely setting up a meeting, hosting an event, or contacting an official — without more — does not count as an “official act.”
At trial, the District Court instructed the jury according to the Government’s broad understanding of what constitutes an “official act,” and the jury convicted both Governor and Mrs. McDonnell on the bribery charges. The Fourth Circuit affirmed Governor McDonnell’s conviction, and we granted review to clarify the meaning of “official act.”...
Taking into account the text of the statute, the precedent of this Court, and the constitutional concerns raised by Governor McDonnell, we reject the Government’s reading of §201(a)(3) and adopt a more bounded interpretation of “official act.” Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an “official act.”...
It is apparent from Sun-Diamond that hosting an event, meeting with other officials, or speaking with interested parties is not, standing alone, a “decision or action” within the meaning of §201(a)(3), even if the event, meeting, or speech is related to a pending question or matter. Instead, something more is required: §201(a)(3) specifies that the public official must make a decision or take an action on that question or matter, or agree to do so....
In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so) — without more — does not fit that definition of “official act.”
By vote of 6-2, SCOTUS upholds broad application of federal prohibition on firearm possession by certain misdemeanants
Confirming that the Second Amendment has far more bark than bite when push comes to shove (puns intended), the Supreme Court this morning rejected a narrow interpretation of the federal criminal statute that forever prohibits any firearm possession by any persons who are convicted of certain misdemeanors. The opinion for the Court authored by Justice Kagan in Voisine v. US, 14-10154 (S. Ct. June 27, 2016) (available here), gets started this way:
Federal law prohibits any person convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. 18 U.S.C. §922(g)(9). That phrase is defined to include any misdemeanor committed against a domestic relation that necessarily involves the “use . . . of physical force.” §921(a)(33)(A). The question presented here is whether misdemeanor assault convictions for reckless (as contrasted to knowing or intentional) conduct trigger the statutory firearms ban. We hold that they do.
Justice Thomas authored a dissent in Voisine, which was partially joined by Justice Sotomayor. His dissent is nearly twice as long as the opinion for the Court, and it starts and ends this way:
Federal law makes it a crime for anyone previously convicted of a “misdemeanor crime of domestic violence” to possess a firearm “in or affecting commerce.” 18 U.S.C. §922(g)(9). A “misdemeanor crime of domestic violence” includes “an offense that . . . has, as an element, the use or attempted use of physical force . . . committed by [certain close family members] of the victim.” §921(a)(33)(A)(ii). In this case, petitioners were convicted under §922(g)(9) because they possessed firearms and had prior convictions for assault under Maine’s statute prohibiting “intentionally, knowingly or recklessly caus[ing] bodily injury or offensive physical contact to another person.” Me. Rev. Stat. Ann., Tit. 17–A, §207(1)(A) (2006). The question presented is whether a prior conviction under §207 has, as an element, the “use of physical force,” such that the conviction can strip someone of his right to possess a firearm. In my view, §207 does not qualify as such an offense, and the majority errs in holding otherwise. I respectfully dissent....
At oral argument the Government could not identify any other fundamental constitutional right that a person could lose forever by a single conviction for an infraction punishable only by a fine. Tr. of Oral Arg. 36–40. Compare the First Amendment. Plenty of States still criminalize libel.... I have little doubt that the majority would strike down an absolute ban on publishing by a person previously convicted of misdemeanor libel. In construing the statute before us expansively so that causing a single minor reckless injury or offensive touching can lead someone to lose his right to bear arms forever, the Court continues to “relegat[e] the Second Amendment to a second-class right.” Friedman v. Highland Park, 577 U. S. ___, ___ (2015) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 6).
In enacting §922(g)(9), Congress was not worried about a husband dropping a plate on his wife’s foot or a parent injuring her child by texting while driving. Congress was worried that family members were abusing other family members through acts of violence and keeping their guns by pleading down to misdemeanors. Prohibiting those convicted of intentional and knowing batteries from possessing guns — but not those convicted of reckless batteries — amply carries out Congress’ objective.
Instead, under the majority’s approach, a parent who has a car accident because he sent a text message while driving can lose his right to bear arms forever if his wife or child suffers the slightest injury from the crash. This is obviously not the correct reading of §922(g)(9). The “use of physical force” does not include crimes involving purely reckless conduct. Because Maine’s statute punishes such conduct, it sweeps more broadly than the “use of physical force.” I respectfully dissent.
Thursday, June 23, 2016
"For aficionados of pointless formalism, today’s decision is a wonder, the veritable ne plus ultra of the genre."
The title of this post is one of a number of Justice Alito's spectacular comments in his dissent in the latest Supreme Court ruling on ACCA, Mathis v. United States, No. 15–6092 (S. Ct. June 23, 2016) (opinion here, basics here). In addition to a number of great rhetorical flourishes, Justice Alito's dissent in Mathis explains how messy ACCA jurisprudence has become and reinforces my sincere wish that folks in Congress would find time to engineer a (long-needed, now essential) statutory ACCA fix. Here are passages from Justice Alito's Mathis dissent that frames effectively the mess that ACCA has become and builds up to the sentence I am using as the title of this post:
Congress enacted ACCA to ensure that violent repeat criminal offenders could be subject to enhanced penalties — that is, longer prison sentences — in a fair and uniform way across States with myriad criminal laws....
Programmed [via prior ACCA rulings], the Court set out on a course that has increasingly led to results that Congress could not have intended. And finally, the Court arrives at today’s decision, the upshot of which is that all burglary convictions in a great many States may be disqualified from counting as predicate offenses under ACCA. This conclusion should set off a warning bell. Congress indisputably wanted burglary to count under ACCA; our course has led us to the conclusion that, in many States, no burglary conviction will count; maybe we made a wrong turn at some point (or perhaps the Court is guided by a malfunctioning navigator). But the Court is unperturbed by its anomalous result. Serenely chanting its mantra, “Elements,” see ante, at 8, the Court keeps its foot down and drives on....
A real-world approach would avoid the mess that today’s decision will produce. Allow a sentencing court to take a look at the record in the earlier case to see if the place that was burglarized was a building or something else. If the record is lost or inconclusive, the court could refuse to count the conviction. But where it is perfectly clear that abuilding was burglarized, count the conviction.
The majority disdains such practicality, and as a resultit refuses to allow a burglary conviction to be counted even when the record makes it clear beyond any possible doubt that the defendant committed generic burglary.... As the Court sees things, none of this would be enough. Real-world facts are irrelevant.
California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms
As reported in this Reuters piece, headlined "California lawmakers move to change sentencing law following Stanford case," the common legislative reaction by policy-makers to concerns about an unduly lenient sentence is in progress in the wake of the high-profile sexual assault sentencing of Brock Turner. Here are the basics:
Seizing on a nationwide furor over the six-month jail term handed to a former Stanford University swimmer following his conviction for sexual assault on an unconscious woman, California lawmakers on Monday introduced legislation to close a loophole that allowed the sentence. The bill, known as AB 2888, marks the latest response to the sentence given to 20-year-old Brock Turner by Santa Clara County Superior Court Judge Aaron Persky in June, which was widely condemned as too lenient. Prosecutors had asked that Turner be given six years in state prison.
"Like many people across the nation, I was deeply disturbed by the sentence in the Brock Turner case," Assemblyman Bill Dodd, one of two California state legislators who introduced the bill, said in a written statement. "Our bill will help ensure that such lax sentencing doesn't happen again."
Turner was convicted of assault with intent to commit rape, penetration of an intoxicated person and penetration of an unconscious person in the January 2015 attack. Under California law, those charges are not considered rape because they did not involve penile penetration. According to the lawmakers, current California law calls for a mandatory prison term in cases of rape or sexual assault where force is used, but not when the victim is unconscious or severely intoxicated and thus unable to resist.
The new legislation, which was introduced in the state assembly on Monday, would eliminate this discretion of a judge to sentence defendants convicted of such crimes to probation, said Ben Golombek, a spokesman for Assemblyman Evan Low, a co-author of the bill. Golombek said that the effect of the proposed new law, which must still be approved by both houses of the legislature and signed by Governor Jerry Brown, is that Turner would have faced a minimum of three years behind bars.
Prior related posts:
- Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
- "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
- Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
- Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
Stressing harms of drunk driving, SCOTUS upholds warrantless breath tests (but not warrantless blood tests) incident to arrest
The Supreme Court handed down its last big Fourth Amendment decision of this Term, and Birchfield v. North Dakota, No. 14–1468 (S. Ct. June 23, 2016) (available here), is a nuanced ruling that I am glad to see makes much of the scourage of drunk driving. Here is the start of the Birchfield opinion for the Court authored by Justice Alito, as well as two key summary paragraphs from deep into the opinion:
Drunk drivers take a grisly toll on the Nation’s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year. To fight this problem, all States have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) that exceeds a specified level. But determining whether a driver’s BAC is over the legal limit requires a test, and many drivers stopped on suspicion of drunk driving would not submit to testing if given the option. So every State also has long had what are termed “implied consent laws.” These laws impose penalties on motorists who refuse to undergo testing when there is sufficient reason to believe they are violating the State’s drunk-driving laws.
In the past, the typical penalty for noncompliance was suspension or revocation of the motorist’s license. The cases now before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested after being lawfully arrested for driving while impaired. The question presented is whether such laws violate the Fourth Amendment’s prohibition against unreasonable searches....
Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great.
We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant.
Chief Justice Roberts and Justices Kennedy, Breyer and Kagan joined Justice Alito's opinion for the Court. Justice Sotomayor, joined by Justice Ginsburg, filed an opinion concurring in part and dissenting in part. Justice Thomas also filed his own opinion concurring in the judgment in part and dissenting in part.
Wednesday, June 22, 2016
Anyone interested in making bold predictions on the last four criminal cases still to be decided by SCOTUS this Term?
Amy Howe at SCOTUSblog has this helpful new post reviewing the final eight cases still to be resolved by the eight Justices before they take their summer vacations. Some of these opinions will be handed down tomorrow and the others are likely to be released early next week. Notably, four of the remaining eight are criminal cases (and I am leaving out of this accounting the big immigration case). Here are Amy's review of the four criminal cases left:
Voisine v. United States (argued February 29, 2016). Stephen Voisine and William Armstrong, the other petitioner in this case, both pleaded guilty in state court to misdemeanor assaults on their respective domestic partners. Several years later, each man was charged with violating a federal law that prohibits the possession of firearms and ammunition by individuals who have previously been convicted of a misdemeanor crime of domestic violence. Voisine and Armstrong contend their state convictions (which the First Circuit affirmed) do not automatically qualify as misdemeanor crimes of domestic violence because the state-law provisions can be violated by conduct that is merely reckless, rather than intentional.
Birchfield v. North Dakota (argued April 20, 2016). Twelve states and the National Park Service impose criminal penalties on suspected drunk drivers who refuse to submit to testing to measure their blood-alcohol levels. The question before the Court is whether those penalties violate the Fourth Amendment, which only allows police to “search” someone if they have a warrant or one of a handful of exceptions to the warrant requirement applies. Three drivers from North Dakota and Minnesota argue that neither of those conditions is met, and so the laws must fall. The North Dakota and Minnesota Supreme Courts ruled in favor of the states, and now the Justices will weigh in.
Mathis v. United States (argued April 26, 2016). After having been convicted of several burglaries in Iowa, Richard Mathis was later prosecuted by the federal government for being a felon in possession of a firearm and received a mandatory minimum sentence under the Armed Career Criminal Act based on his burglary convictions. The Eighth Circuit affirmed his conviction. The question before the Court is how to determine whether state convictions like Mathis’s qualify for federal mandatory minimum sentences and for removal under immigration law.
McDonnell v. United States (argued April 27, 2016). Former Virginia governor Bob McDonnell is challenging his convictions for violating federal laws that make it a felony to agree to take “official action” in exchange for money, campaign contributions, or anything else of value. The Fourth Circuit affirmed, and so the Justices agreed to weigh in. He argues that merely referring someone to an independent decision maker – in his case, in an effort to help promote a Virginia businessman’s nutritional supplement – doesn’t constitute the kind of “official action” that the statute bars.
I think it is possible that any of these cases could turn into a blockbuster, and Birchfield and McDonnell arguably require the Justices to do some "big" jurisprudential work to resolve the issues before them. Narrow/technical rulings seem more likely in Voisine and Mathis, though the former may get some extra attention in light of the on-going political discussions and sparring over gun control following the Orlando shootings and the latter seems sure to add yet another chapter to the lengthy and complicated ACCA jurisprudence.
As we await these final rulings (and especially because all are sure to be eclipsed in the mainstream media by the abortion, affirmative action and immigration cases also on tap), I would be eager to hear from readers about what they are expecting or even hoping for as the SCOTUS Term winds down.
Tuesday, June 21, 2016
"What is 'violent' crime?"
The question in the title of this post is the very first sentence of this effective Salon commentary by Benjamin Levin. The commentary has this (much less pithy) full headline and subheadline: "It’s time to rethink 'violent' crime: How mislabeling misconduct contributes to our bloated criminal justice system: The distinction between violent and nonviolent crime is a problematic metric for determining criminal punishment." And here are excerpts:
What is “violent” crime? Perhaps that seems like an easy question — murder is; tax evasion isn’t. But the distinction between violent and nonviolent crime has proven tricky for lawyers, judges and legislators.
Policy debates about proper punishments or enforcement too often break down because the various stakeholders get hung up on whether the crime in question is “violent.” If we are serious about addressing mass incarceration and our bloated criminal justice system, it’s time to rethink what counts as violent crime.
Perhaps nowhere is this issue more evident than in recent debates about drug crime. Where the bipartisan push to reduce prison populations has focused on “nonviolent drug offenders,” sentencing reform opponents have argued that drug crime is inherently violent.
Last year, the National Association of Assistant U.S. Attorneys (an organization representing federal prosecutors) published a white paper arguing that drug trafficking is violent crime. Last month, William Bennett and John Walters (the drug czars for Presidents George H.W. Bush and George W. Bush, respectively), penned an op-ed echoing this claim.
I think that Bennett and Walters are wrong on the facts, but their argument also highlights the problem with using the violent/non-violent distinction as a relevant metric of criminal punishment.
Bennett and Walters claim that drug trafficking is violent because of the harms that drugs themselves do (i.e., by hurting users and by imposing third party harms). Notably, their claim isn’t that drug dealers use violence to make money and control their turf. Indeed, a body of research shows that prohibition – not the drugs themselves — has made drug dealing a dangerous industry. Rather, their claim is that drug dealing is violent because it has victims. And that’s a much broader claim.
They’re certainly right that many illegal drugs carry with them severe health risks and risks to third parties, causing danger at home, in the workplace, and on the road. But does that make drug dealing a “violent crime”?
Bennett and Walters’s argument appears to rest on an expansive definition of violent – an act is violent if it does harm in the world or if people suffer directly or indirectly because of it. This definition would capture many traditional violent crimes (murder, rape, assault, etc.), but it would also sweep in a great deal of conduct that does harm, directly or indirectly. Why isn’t selling alcohol or cigarettes a violent act? What about gun possession? Drunk driving? Theft? Or even tax evasion?
While the Supreme Court has struggled to define when conduct is “violent,” the real-world consequences of this definitional question are critically important: the law often treats violent and nonviolent crime very differently. Many laws govern the conduct of those with criminal records, restricting housing, employment, voting and a range of benefits. These laws often depend upon the nature of the underlying offense — a violent felony might preclude someone from finding work in a given industry; a nonviolent conviction might not. Additionally, a conviction for a violent (as opposed to a nonviolent) crime might trigger a much longer sentence if an individual commits another crime — even if the second crime is nonviolent or less serious....
Certainly, there are many cases in which most of us would agree that the alleged conduct is violent. And there may be cases in which most of us would agree that conduct is nonviolent. (And, those latter cases often serve as the easiest point of bipartisan sentencing reform.) Yet Bennett and Walters’s argument shows that most harmful or objectionable conduct might be classified as violent. If a determination that crime is violent rests simply on finding someone who suffers directly or indirectly based on the act in question, then the definition knows no bounds.
If “violent crime” means so many things, then it only creates the illusion that society has sorted out the true “bad guys” or punished the worst conduct. Instead, it becomes a proxy for social harm, risk prediction, or moral condemnation. It may be that consensus on questions of criminal punishment is an impossible goal. But continuing to cast all objectionable conduct as violent is counterproductive and makes meaningful compromise and reform even more difficult.
Sunday, June 19, 2016
Even after Orlando shootings, GOP leaders in Congress unwilling to allow more medical research into gun deaths
Though I generally favor so-called "common-sense" gun regulations, I am not sure that more gun regulations will really help to reduce gun violence. But I am sure that more research on gun violence and gun-related deaths could and should help us better engineer laws to advance public safety. Consequently, I was saddened and disappointed to see this recent article in The Hill. It is headlined "GOP rebuffs doctors on gun research," and here are excerpts:
The American Medical Association’s new push to unfreeze federal funding for gun research is hitting a wall of resistance in the Republican Party. In the wake of the mass shooting in Orlando, the nation’s leading doctors group announced Tuesday it plans to “actively lobby” against a nearly 20-year-old budget rule that has prevented federal researchers from studying gun-related deaths.
The near-unanimous vote, which took place two days after Orlando shooting early Sunday morning, puts the powerful doctor’s lobby at odds with Second Amendment supporters who have argued that gun-related violence is no different from other violent acts.
Dr. Alice Chen, the executive director of the nonprofit Doctors for America, called the move a “game changer” for the long-standing fight to lift the research restrictions. “The strength of the AMA's vast membership, plus that of the over 100 medical and public health groups across the country, will be hard for Congress to ignore,” she said.
But Republicans in Congress, including those in the House Doctors Caucus who are members of the group, are soundly rejecting the AMA’s calls for research into gun-related deaths. “I don’t particularly see the need for it, quite frankly,” Rep. Tom Cole (R-Okla.), who leads health funding for the House Appropriations Committee, told The Hill on Thursday.
Rep. Michael Burgess (R-Texas), a member of the House Doctors Caucus, said he also opposed the policy change. “Although I’m a member of the AMA, I don’t always agree with the position they take,” Burgess told The Hill on Thursday. “It seems to have worked well. I don’t favor changing it,” Burgess said of federal researchers staying away from the issue of guns....
It’s becoming increasingly unlikely that the gun research will be part of Congress’s response to the Orlando shooting. Cole, the Oklahoma Republican, said GOP leaders are much more likely to boost funding for the FBI to improve background checks. “Research is good, but unfortunately, this administration has used terrorism despicably to advance their gun control issue. It doesn’t shock me to tears that he might use [Centers for Disease Control and Prevention] research rules to do the same,” Rep. Trent Franks (R-Ariz.) said Thursday.
Democrats this week already forced the GOP-led House Energy and Commerce Committee to vote on the research issue during its markup of a mental health bill. That amendment, from Rep. Tony Cárdenas (D-Calif.), failed on a party line vote of 23-29.
The moratorium on federal gun research stems from a 1997 budget amendment that prohibits federal funds “to advocate or promote gun control” — language that researchers say has had a chilling effect. Republicans adopted the so-called Dickey amendment, named after Rep. Jay Dickey (R-Ga.), in 1997 after strong lobbying from groups such as the National Rifle Association. Gun rights supporters have long argued that government agencies use studies to advance gun control, something researchers deny.
Dickey has since reversed course and is now campaigning to change the wording in the law. Other gun rights advocates have remained strong in their opposition. Larry Keane, general counsel for the National Sports Shooting Association, said the Centers for Disease Control and Prevention has “misdiagnosed the issue.”
“Our view is that criminal violence involving firearms is a criminal justice [issue],” Keane said in an interview Thursday. “The CDC should focus on its mission, which is addressing diseases and illnesses like cancer and preventing an outbreak of the Zika virus.”
The renewed push for lifting the federal research restrictions began on Tuesday, after the AMA’s policy-making arm, the House of Delegates, decided by voice vote to “actively lobby” on the issue. It also officially declared gun violence to be a "public health crisis” for the first time, over the protest of some members.
American Academy of Family Physicians president, Dr. Wanda Filer, who attended the meeting in Chicago, said she heard “very few nay votes” during the vote. The resolution had been drafted late into the night on Sunday by a group of young doctors who skipped planned conference festivities to draft it.
It was the second year in a row the AMA’s conference was interrupted by reports of a mass shooting. Last year, the AMA held a moment of silence after the shooting at a historic black church in Charleston, S.C., that killed nine people....
Filer said the AMA’s vote adds momentum to the cause that many physician groups, like hers, already supported. “Without research and being brave enough to ask the questions, we’re going to have ill-informed, emotional arguments,” Filer said Thursday. “What we’re saying is, we need research.”
Importantly, I do not disagree with the gun rights advocates' view that "criminal violence involving firearms is a criminal justice [issue]," but accepting that notion does not logically justify precluding medical research on gun-related deaths. If our society is truly committed to reducing gun deaths, we ought to have bright researchers working in all disciplines studying this grave problem to try to discover evidence-based strategies to improve public safety. But, sadly, it seems that even after the worst mass shooting in recent US history, partisan politics can still preclude sensible policymaking.
Friday, June 17, 2016
"'Loss' Revisited: A Guarded Defense of the Centerpiece of the Federal Economic Crime Sentencing Guideline"
The title of this post is the title of this notable new article authored by Frank Bowman now available via SSRN. Here is the abstract:
This article discusses "loss," the concept at the heart of the Federal Sentencing Guidelines section governing economic crimes, Section 2B1.1. It notes the common criticism that "loss" plays too large a role in federal economic crime sentencing, but distinguishes between the sound observation that structural problems in Section 2B1.1 cause loss amount to generate too many "offense levels" and critiques of the core definition of "loss."
The article summarizes previous suggestions made by the author and others to address the arguably disproportionate role played by "loss," but it focuses primarily on the Guidelines' definition of "loss," whether actual or intended. The article defends the fundamental soundness of the existing "loss" definition, but suggests some points on which improvements might be made, particularly to the definition of intended loss.
The article was solicited as a response to an article by Mr. Daniel Guarnera, published in the same issue of the Missouri Law Review, in which Mr. Guarnera argues for a revision of the definition of intended loss to include unrealized harms as to which the defendant was reckless.
Daughter of mass murder victim explains why she opposes death penaly for Charleston church shooter Dylann Roof
This new Vox commentary authored by Sharon Risher explains a notable person's notable perspective on forgiveness and the death penalty in a notable capital case. The piece is headlined "My mom was killed in the Charleston shooting. Executing Dylann Roof won’t bring her back." Here are excerpts:
Ethel Lance, my mother, was killed on Wednesday, June 17, 2015, along with my cousins Susie Jackson and Tywanza Sanders, and six other people at Charleston’s Emanuel African Methodist Episcopal Church. It appears to have been a racially motivated massacre plotted by a 21-year-old white man....
A mere 48 hours after the church shooting, millions of Americans watched my sister, Nadine Collier, stand in front of our mother’s accused killer and forgive him at his bond hearing. The media ran with the forgiveness narrative, praising the ability of the victims’ families for their graciousness and faith.
I didn’t forgive Dylann Roof. And I still don’t forgive him. After I saw my sister address the nation, I thought, This girl has to be crazy! Who’s going to forgive him so quickly? I was hurt that people thought Nadine’s views reflected the views of the Lance family and the thoughts of all of the Charleston nine’s loved ones.
Don’t get me wrong. I disagreed with Nadine, but I respected her opinion — she’s my sister, and she has a right to her own emotions and grieving process. Still, after the shooting, there were several articles that exploited our different ways of grieving. They pitted us against each other in the midst of a horrific tragedy.
I understand that the people of Charleston, and of America as a whole, latched onto the overwhelming message of forgiveness as a coping mechanism. But the focus on quick forgiveness and the pivot to remove the Confederate flag from the South Carolina statehouse washed away the severity of the larger issues at hand – that the accused killer, because of his hatred of black people, could be so stirred by white supremacist ideology that he would go into that church to kill my momma and all the others.
The man accused of killing my mother did not show any remorse. Why should I feel the need to forgive him when he has not asked for forgiveness? I know God commands us to forgive, but there is no time stamp — forgiveness is a journey that you allow yourself to feel because someone has wronged you....
In the months since the shooting, I received a handwritten letter from Lucia McBath, whose son Jordan Davis was killed in 2012 from gun violence. Lucia sent her condolences and told me to reach out to her if I needed to. On a whim, I did. From there, I became involved with gun control advocacy, rallying for national gun control organizations....
Despite the anger I am still coping with from my mother’s death, I don’t believe in the death penalty, even for the man who killed her. That’s my conviction because of my faith. I’ve said the same thing all along — I don’t believe as human beings that we should take away someone’s life just because we have the power to do so.
God is the only person, the only being who decides our fate. Still, I will let the judicial system do what they choose. The Department of Justice announced last month that it will seek the death penalty against the shooter. Whatever the outcome, I will not protest.
This is how my faith carries me. I don’t walk in fear. I don’t think about Dylann Roof. All I want to do is do what God has planned out for me. If I can stop one person from experiencing the pain myself and my family and all the families experienced post-Charleston, then I have done my part.