Monday, October 23, 2017

New study of Pennsylvania death penalty finds disparity based on race of victim and type of representation

This new local AP article, headlined "Study: Victim's race factor in imposing death sentences in Pa.," reports on some interesting findings of a big forthcoming report about the death penalty's application in the Keystone State.  Here are the details as reported by the AP:

A new study of capital punishment in Pennsylvania found that death sentences are more common when the victim is white and less frequent when the victim is black.  The report, which drew from court and prosecution records over an 11-year period, concluded that a white victim increases the odds of a death sentence by 8 percent.  When the victim is black, the chances are 6 percent lower.

“The race of a victim and the type of representation afforded to a defendant play more important roles in shaping death penalty outcomes in Pennsylvania than do the race or ethnicity of the defendant,” according to the 197-page report obtained by The Associated Press.

Penn State researchers produced the $250,000 study for the Interbranch Commission for Gender, Racial and Ethnic Fairness, and its findings are expected to be incorporated into a separate, ongoing review of the state's death penalty that Democratic Gov. Tom Wolf has said could affect the death penalty moratorium he imposed shortly after taking office in 2015.

The report also found the prosecution of death penalty cases varies widely among counties, calling that variation the most prominent differences researchers identified. “A given defendant's chance of having the death penalty sought, retracted or imposed depends a great deal on where that defendant is prosecuted and tried,” they concluded. “In many counties of Pennsylvania, the death penalty is simply not utilized at all. In others, it is sought frequently.”...

Researchers with Penn State's Justice Center for Research said there was no “overall pattern of disparity” by prosecutors in seeking the death penalty against black or Hispanic defendants, but did detect a “Hispanic victim effect” in which prosecutors were 21 percent more likely to seek death when the victim was Hispanic.  Black and Hispanic defendants who killed white victims were not more likely than a typical defendant to get a death sentence.

In nearly a quarter of all cases, defense lawyers did not present a single “mitigating factor” to push back against the aggravating factors that must be proven in order to justify a death sentence.... With the exception of Philadelphia, which has a unique system for providing lawyers to those who can't afford them, defendants represented by public defenders were more likely to get a death sentence than those with privately retained lawyers.

Unlike studies in some other states, the researchers said there was “no clear indication” that defendants with private attorneys — as opposed to court-appointed counsel — were more likely to get a plea deal with prosecutors that avoided a death sentence.

Notably, the Pennsylvania District Attorneys Association released on Monday this press release about the report titled "PA Report Refutes Death Penalty Myths."  Here is how it starts:

A study on capital punishment decisions in Pennsylvania found there is no racial bias in prosecutors’ decisions or in defendants who receive death penalty sentences. The findings of the report are in direct contrast to the racial-bias narrative pushed for years by anti-death penalty advocates and are important new facts any discussion about capital punishment must recognize.

“This report’s conclusion is clear: capital punishment in Pennsylvania is not disproportionately targeted against defendants of color,” said PDAA President and Berks County District Attorney John Adams. “For so long, those who have sought to abolish the death penalty have argued that the race of the defendant plays the critical role in decisions about who gets the death penalty. This report squarely debunks that theory.”

The report, prepared by Penn State University researchers for the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness, has not yet been made public but was provided by an unknown source to the Associated Press. In it, the report clearly states that “[n]o pattern of disparity to the disadvantage of Black or Hispanic defendants was found in prosecutorial decisions to seek and, if sought, to retract the death penalty.” Similarly, according to the report, “[n]o pattern of disparity to the disadvantage of Black defendants with White victims was found in prosecutorial decisions to seek or to retract the death penalty.”

October 23, 2017 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

"Is There a ‘Rational’ Punishment for My Rapist?"

The title of this post is the title of this powerful personal article authored by Amber Rose Carlson.  I recommend the piece in full, and I hesitate to reprint excerpts for fear of diluting the potency of the entire piece.  But this excerpt perhaps will help prompt folks to click through to read the full piece:

“Imagine your rapist had been found guilty and sentenced in court. What would you want his sentence to be?” This was the question asked to me in January 2016 by my therapist during a session of eye movement desensitization and reprocessing therapy (E.M.D.R.) — a treatment that researchers tout as one of the best remedies for severe trauma and post-traumatic stress disorder.

I was raped repeatedly during a three-year span from age 13 to 16. I was also subject to physical and emotional abuse during that time. I’ve since undergone years of traditional talk and group therapy with trauma specialists, and I am more healed today than I ever thought possible.  Still, recovering from trauma is a serious endeavor, and I hoped for more healing....

I’m not a proponent of the death penalty primarily because the flaws in our criminal justice system are egregious and increasingly well-documented. The thought experiment’s framing, however, circumvented my usual concerns about unjust sanctions. I know what my rapist did to me, so I know he is guilty. Worries about the inhumanity of capital punishment were also blunted in part because this was purely hypothetical and in part because of the inhumanity he exhibited those long years with his penchant for violence.

Although the death sentence seemed wholly appropriate, I still considered how I would feel if a judge gave my rapist a less severe punishment: a natural life sentence — a life sentence with no chance for parole without a successful appeal.  In this scenario, my feelings were just as clear: I would be slightly disappointed, but I would still feel mostly satisfied.  Anything less than a death or natural life sentence, I knew, would seem inadequate....

IN FEBRUARY 2016 — only weeks after the thought experiments with my therapist — the philosopher Jennifer Lackey published an opinion piece in The Stone. In the article, she uses her experience teaching philosophy to inmates to argue for the irrationality of natural life sentences.  Lackey bases her argument against natural life sentences on two reasonable claims: (1) people (criminals, specifically) can and do change in profoundly transformative ways, and (2) we cannot know the future.

For Lackey, the fact that we have good statistical evidence that criminals can and do change is especially problematic given our vast epistemic limitations regarding the future. “Natural life sentences,” she wrote, “say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal.” Citing the possibility of prisoner transformation, Lackey then puts her question about rationality directly: “How is it rational,” she asks, “to screen off the relevance of this information? How, that is, is it rational to say today that there can be no possible evidence in the future that could bear on the punishment that a decades-from-now prisoner deserves?”...

I read Lackey’s article very soon after the thought experiments with my therapist. I noticed that Lackey’s argument easily applied to the death penalty, and I realized that the sentences I desired for my rapist were precisely the ones Lackey condemns as irrational.  Since nothing in her argument prevented me from applying her logic to my own desires, I had to wonder if her argument also concluded that I was irrational for desiring permanent punishments.  If it is irrational for the state to prescribe a permanent punishment given our epistemic limitations and prisoners’ likelihood for change, wouldn’t it be similarly irrational for victims to ignore these considerations?

There are, of course, crucial differences between victim’s desires and punishments carried out by the state. While sometimes the criminal justice system considers the wishes of victims and their families, the criminal justice system’s central aim is to protect the interests of the state and the community.  This aim does not always coincide with the interests or wishes of the victim.  Admittedly, there are often very good reasons for the state to ignore the wishes of victims.  But my concern is less about what the state should do in practice and more about what arguments that prioritize transformation say about victims who desire permanent punishments.

Here I will be blunt: it matters very little to me whether my rapist is transformed at some point in his life. It matters to me only to the extent that I will readily agree that it would be better if he became the sort of person who did not inflict violence upon others.  I would be very happy hearing that no other women would be harmed by him. But in terms of the punishment that he deserves?  Transformation does not matter to me.  And this is not irrational: There are many carefully considered reasons one might want a natural life sentence for perpetrators of egregious and irrevocable harm.

Desiring death or a natural life sentence for those who inflict traumatic violence is a rational response because whether or not my particular rapist transforms is irrelevant to whether or not I will ever have the chance to be the sort of person I might have been.  His transformation is irrelevant to whether or not I will be able to live the sort of life I could have were it not for the injustice done to me. I desire a death or natural life sentence for my rapist because that is what seems appropriate given the amount of damage he wrought in my life....

Although my attitude is in no way representative of all victims, epistemic arguments that prioritize criminal transformation must contend with the implication that they can be used to paint trauma victims irrational when they desire retribution.  It’s certainly important to advocate for prisoners who are wrongly incarcerated and for those who were victims of the overzealous war on crime era.  The injustices in our criminal justice system are too numerous and too serious to ignore. But criminal justice reform should not be so myopic that it compounds trauma survivors’ victimization.  Those who manage to survive traumatic crimes have enough to battle without arguments that undermine their rational considerations. Advocates for criminal justice reform can, and should, do better.

October 23, 2017 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (18)

Reviewing publicity's role in federal sentencing decision-making

This new Forbes piece by Brian Jacobs, headlined "The Role of Publicity in Sentencing," reviews how a case's high-profile nature can play a role in a defendant's federal sentencing. Here are excerpts concluding with the author's closing criticism of "any substantial reliance on publicity as a sentencing factor":

Should defendants in cases that attract press coverage be given longer sentences than defendants in cases that pass unnoticed?  The knee jerk response of anyone familiar with the basic principle of equality under the law would likely be a resounding “no.”  And yet, as some recent cases have starkly demonstrated, courts can and do consider a defendant’s level of notoriety as a factor weighing in favor of harsher punishment.

The ability of courts to take publicity into account at sentencing traces back to Section 3553(a) of Title 18, United States Code, which provides a list of factors that district courts are required to consider in imposing sentence, including “the nature and circumstances of the offense and the history and characteristics of the defendant.”  One of the factors district courts must consider is “the need for the sentence imposed— to afford adequate deterrence to criminal conduct.”...

The extent of publicity a case has received and will continue to receive naturally figures into the analysis of whether a given sentence will further the goal of general deterrence.  As one commentator wrote some time ago, “[i]f a case has for some reason attracted great publicity, a severe sentence could be expected to have great deterrent effect.  If, on the other hand, the publicity is minimal and the sentence probably will be known only to the defendant himself and the officials involved with the case, the judge could let the offender off with a light sentence without sacrificing any general preventive effects.”

As evidenced by some recent cases, courts have generally followed through on this reasoning and have considered the extent of a case’s publicity as one factor weighing in favor of higher sentences.  In Ross Ulbricht’s appeal of his conviction for crimes “associated with his creation and operation of an online marketplace known as Silk Road,” the Second Circuit Court of Appeals condoned the district court’s consideration of the extent of the case’s publicity as one factor justifying the life sentence imposed. Specifically, the Second Circuit approved the district court’s reference to the general deterrence that would result from the “unusually large amount of public interest” in the case.  (Ironically, it appears that the Ulbricht’s life sentence and the attendant publicity, far from deterring crime, “actually boosted dark web drug sales.”)

By the same token, in sentencing former congressman Anthony Weiner to 21 months’ imprisonment for transferring obscene materials to a minor, U.S. District Judge Denise L. Cote made express reference to Mr. Weiner’s high profile: “Because of the defendant’s notoriety, gained well before he engaged in this criminal activity, there is intense interest in this prosecution, in his plea, and his sentence, and so there is the opportunity to make a statement that could protect other minors,” she said.  Judge Cote elaborated that, “[g]eneral deterrence is a very significant factor in this sentence.”...

But even as courts are required to consider general deterrence, the consideration given to a case’s publicity, in particular, should be minimal.  The use of general deterrence as a sentencing factor is inherently unfair to an individual defendant, to the extent that the individual defendant’s case is used as a “means for the public good.”  To base a defendant’s sentence on the extent of the publicity a case has received or will receive only exacerbates this unfairness, as notoriety has even less to do with the individual defendant’s case, and more to do with the whims of the press corps and the Department of Justice’s media operation.  In the long run, any substantial reliance on publicity as a sentencing factor, rather than deterring crime, seems just as likely to increase the risk that people will, as one commentator wrote, “find the system unjust” in violation of “the principle of equality before the law.”

October 23, 2017 in Booker in district courts, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Sunday, October 22, 2017

Should we call it the Sessions effect?: "enthusiastic" federal prosecutors operating at "full throttle" in the Southern District of Ohio

My local Columbus Dispatch has this fascinating new article highlighting an uptick in federal prosecution in the Southern District of Ohio.  The piece is headlined "Surge in prisoners prompts federal court to contract with northwest Ohio jail," and here are excerpts (with a few points highlighted):

Benjamin C. Glassman is costing taxpayers more money, and he’s OK with that. Glassman, the U.S. attorney for the Southern District of Ohio, is reaching far and wide — very far, in some cases — to fight crime that could hurt Ohioans.

He persuaded the U.S. Drug Enforcement Administration to deposit four Ecuadorean cocaine traffickers caught off the Galapagos Islands for prosecution on his turf in Columbus. And members of the multinational gang MS-13 were charged in September with extorting money from Columbus businesses and laundering it back to the gang’s leadership in El Salvador.

The increase in the prosecution of violent crimes and drug cases such as these, especially amid the opioid crisis, had the U.S District Court for Southern Ohio looking for extra jail space to keep a record 483 defendants whose cases were pending as of Oct. 7. “That’s a lot for us,” said Chief U.S. District Judge Edmund A. Sargus Jr. 

Of the total defendants, 223 were up on drug charges, 43 for violent crimes and 38 for child pornography.

To prevent overtaxing the Franklin and Delaware County jails that hold federal prisoners, Peter C. Tobin, the U.S. marshal for the 48-county Southern District, recently contracted with a regional jail in Williams County, 150 miles northwest of Columbus, to hold some defendants.  So far, 30 defendants have been sent to the Corrections Center of Northwest Ohio near Bryan.  That jail is charging $90 a day per federal inmate, about $25 more than the local jails.

Other federal court districts are having similar problems housing the influx of defendants, Sargus said.  The largest districts, such as New York City and Los Angeles, have their own holding facilities.

An Obama administration appointee last year, Glassman swears he’s not padding his crime-fighting resume because President Donald Trump could replace him at a moment’s notice. Ohio’s U.S. senators have recommended Greg Hartmann, an attorney and former Hamilton County commissioner, to replace Glassman. “We just want to reach out as far as we can and as far as we need to go to stop crime that is hurting people in this district,” Glassman said. “I sincerely believe people in Russia can hurt us, people in China can hurt us here.”

He spoke enviously of fellow prosecutors in North Dakota who this month “beat us to indicting” two men in China with selling fentanyl over the “dark web’ that has been tied to deadly overdoses. It was unclear whether Chinese officials have taken action against the suspects.

“We have violent crime initiatives in Cincinnati, and now Columbus, that are successfully bringing more violent crime prosecutions,” he said. Glassman’s office works closely with state and local law enforcement, counting on street cops to identify the “small number of people disproportionately responsible for a large number of violence.”  Suspects are charged in state or federal court depending on which nets prosecutors the best results, meaning guilty pleas and stiff prison sentences....

Glassman said his office is operating at “full throttle, with a lot of hardworking, really enthusiastic prosecutors.”  Individual assistant U.S. attorneys specialize in handling violent crime, drugs, illegal immigration, child pornography, tax and fraud cases.  Where only the top offenders in a drug ring were usually charged, now it’s not uncommon for cases to include a list of 15 or so defendants with even the most minor players. “We are looking to dismantle entire distribution organizations,” he said.

I find fascinating that even with a violent crime initiative and directions from Attorney General Sessions to focus on violent crime, this accounting of on-going federal prosecutions indicates that less than 15% of the current caseload (and maybe less than 10%) involves violent crimes (43 out of the 304 noted above, or maybe 43 out of the full 483).  Meanwhile, nearly half or perhaps even more than half of all the cases are drug cases, and now apparently even the most minor players in a drug ring are being subject to federal prosecution — no doubt in part because guilty pleas and stiff prison sentences are more common when drug charges are brought in the federal system.

I am inclined to call much of this a "Sessions effect" because the signals from the top of the current Justice Department would seem to be urging more and more federal prosecutions across the board (while also urging tougher approaches to sentencing).  I suspect it may be still some months before we see the full impact of these dynamics in federal sentencing statistics, but I also suspect I will be talking more about the Sessions effect in the months and years ahead.

October 22, 2017 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Friday, October 20, 2017

Federal judge rules that Prez pardon for Joe Arpaio does not call for vacating his contempt conviction

As reported in this Politico piece, a "federal judge has ruled that President Donald Trump's pardon of former Arizona Sheriff Joe Arpaio ends his prosecution for criminal contempt of court, but does not wipe out the guilty verdict she returned or any other rulings in the case."   The full (and short) ruling is available at this link, and here is more about it:

In her order Thursday, Phoenix-based U.S. District Court Judge Susan Bolton rejected arguments from Arpaio's lawyers and Justice Department prosecutors that the longtime Maricopa County sheriff was entitled to have all rulings in the case vacated, including the guilty verdict the judge delivered in July after a five-day trial.

“The power to pardon is an executive prerogative of mercy, not of judicial recordkeeping," Bolton wrote, quoting an appeals court ruling. "To vacate all rulings in this case would run afoul of this important distinction. The Court found Defendant guilty of criminal contempt. The President issued the pardon. Defendant accepted. The pardon undoubtedly spared Defendant from any punishment that might otherwise have been imposed. It did not, however, 'revise the historical facts' of this case."

Arpaio, known for his tough stance against illegal immigration and for humiliating treatment of prisoners, was charged with contempt for defying another federal judge's order aimed at preventing ethnic profiling of Latinos. Trump pardoned the 85-year-old Arpaio in August while he was awaiting sentencing. The official White House statement stressed Arpaio's history of public service, but the president indicated in earlier remarks that he considered the ex-sheriff's conviction unfair because he was found guilty "for doing his job." Trump also said Arpaio should have received a jury trial, something courts have said is not required if no penalty of more than a year in jail is sought.

Arpaio's attorneys filed an appeal Thursday evening that will take the issue to the San Francisco-based 9th Circuit Court of Appeals. "We will challenge that order," Arpaio lawyer Jack Wilenchik told POLITICO shortly after the judge's ruling was handed down. He said Bolton had jumbled the facts regarding a key precedent: the case of a Tyson Foods lobbyist who was pardoned by President Bill Clinton after being convicted of giving illegal gifts to Agriculture Secretary Mike Espy.

The battle over the guilty verdict and other rulings is largely symbolic since the prosecution, the defense and the judge all appear to agree Arpaio's prosecution is over and he cannot be punished for the conduct that led to the case. Arpaio's attorneys argue it is unfair for the verdict to remain on the book since the pardon effectively wipes out Arpaio's ability to appeal that decision. However, some ethics-in-government groups and Democratic lawmakers urged the judge to reject the pardon altogether as an unconstitutional intrusion by the executive branch into the judiciary branch's ability to ensure that its orders are enforced.

A few prior related posts:

October 20, 2017 in Clemency and Pardons, Collateral consequences, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Tuesday, October 17, 2017

You be the Army judge: what sentence for Army deserter Bowe Bergdahl?

The question in the title of this post is prompted by this new AP article headlined "Bergdahl guilty pleas leave room for drama at sentencing." Here is the context for the question:

Army Sgt. Bowe Bergdahl's guilty plea to charges of endangering comrades in Afghanistan has set up a dramatic sentencing hearing that could land him in prison for life.  Bergdahl, who was captured and held by the Taliban for five years after leaving his remote post in Afghanistan in 2009, pleaded guilty Monday in North Carolina to desertion and misbehavior before the enemy, a rare charge that carries a potential life sentence.

Because Bergdahl had no plea deal with prosecutors, his punishment will be decided by the judge, Army Col. Jeffery R. Nance, at a hearing starting Oct. 23.  Bergdahl was thoroughly questioned by Nance at his plea hearing at Fort Bragg, and the soldier acknowledged that his actions — and subsequent military search missions — put fellow service members in harm's way. "I left my fellow platoon mates," he told the judge. "That's very inexcusable."

At sentencing, the judge is expected to weigh factors including Bergdahl's willingness to accept responsibility by pleading guilty, his time in captivity of the Taliban and its allies, and serious wounds to service members who searched for him.  "Pleading guilty before a judge without any protection from a deal is a risky move," said Eric Carpenter, a former Army lawyer who teaches law at Florida International University. "The military judge can sentence Bergdahl to zero punishment, but he can also sentence Bergdahl to life in prison."

The guilty plea brings the highly politicized saga closer to an end eight years after Bergdahl vanished. President Barack Obama brought him home in 2014 in a swap for five Taliban prisoners at Guantanamo Bay, saying the U.S. does not leave its service members on the battlefield. Republicans roundly criticized Obama, and Donald Trump went further while campaigning for president, repeatedly calling Bergdahl a "dirty, rotten traitor" who deserved to be executed by firing squad or thrown out of a plane without a parachute.

Bergdahl, 31, has said he walked away from his remote post in 2009 with the intention of reaching other commanders and drawing attention to what he saw as problems with his unit. "At the time, I had no intention of causing search-and-recovery operations," he said in court. "I believed they would notice me missing, but I didn't believe they would have reason to search for one private."...

Bergdahl's responses to the judge Monday were some of his most extensive public comments yet. He said he tried to escape from his captors 12 to 15 times, with varying degrees of success.  Once, he was on his own for about a week — hoping U.S. drones would spot him — before he was recaptured.  He said he also tried to escape on his first day in captivity. "As I started running there came shouts, and I was tackled by people. That didn't go so well," said Bergdahl, who spoke in even tones and wore a blue dress uniform.

Meanwhile, Bergdahl's fellow service members engaged in firefights that they could have avoided had Bergdahl not gone absent without leave, the judge said.  Those firefights left a Navy SEAL with a career-ending leg wound and an Army National Guard sergeant with a head wound that put him in a wheelchair.

As for the defense contention that Trump unfairly biased the court-martial against Bergdahl, a ruling in February found that the new president's comments were "disturbing and disappointing" but did not constitute unlawful influence by the soon-to-be commander in chief.

October 17, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (14)

Monday, October 16, 2017

Colorado judge finds state's statutory response to Miller unconstitutionally favors certain juve defendants at resentencing

This local article reports on an interesting (and quirky?) ruling from a Colorado state judge last week finding constitutional problems with how the state responded to the Supreme Court's Eighth Amendment ruling in Miller precluding any mandatory LWOP sentencing for juvenile murderers.  The full headline of the article provides the basics: "Colorado law giving a break to some serving life for crimes committed as juveniles is unconstitutional, judge rules: Judge Carlos Samour Jr. ruled state can’t set preferential sentence for offenders convicted of felony murder." Here are more particulars: 

Part of a 2016 Colorado law that offers special sentencing considerations for some of the 50 people serving life without parole for crimes they committed as juveniles has been ruled unconstitutional by an Arapahoe County judge. Chief District Court Judge Carlos Samour Jr. this week entered his ruling in a case filed by Curtis Brooks, who was sentenced in 1997 to life in prison without parole after his conviction for felony murder.

The law, Samour ruled, gives preferential treatment to Brooks and 15 other offenders convicted of felony murder, offering them reduced sentences of 30 to 50 years in prison, while 34 other convicts serving life without parole could get new sentences of life in prison with the possibility of parole.  “Under the circumstances present, the court finds that the challenged provisions grant the 16 defendants a special or exclusive privilege,” his ruling says.

Brooks had applied to have his sentence reduced under the law, which the legislature passed last year. Felony murder holds defendants liable for first-degree murder if they commit or attempt certain felonies, such as burglary or robbery, and someone dies “in the course of or in furtherance of the crime.” In Brooks’ case, the owner of a car was killed by someone else as they tried to steal the vehicle. Brooks was 15.

Although Samour’s ruling is very well-reasoned, it is not binding precedent, said Ann Tomsic, chief deputy attorney for the 18th Judicial District.  Other judges probably will read Samour’s ruling and base their sentencing decisions on what he wrote, she said.... Brooks’ attorneys, including Dru Nielsen, said they could not comment on the facts of the case. Nor would they say whether they would appeal Samour’s decision....

Samour concluded that because the portion of the 2016 law applying only to those convicted of felony murder is unconstitutional, he must sentence Brooks to life in prison with the possibility of parole.

The Colorado legislature said juveniles convicted of felony murder cannot be sentenced to life without parole. Had lawmakers passed a bill that applied equally to all people convicted as an adult for crimes committed as a juvenile, it would have been constitutional, Samour said.  “What the legislature could not do, however, is what it, in fact, did: arbitrarily single out the 16 defendants and bestow preferential treatment upon them,” Samour ruled. Emphasizing his point, he wrote that the legislature cannot act as a sentencing court or a parole board.

I was unable to find on-line the formal opinion in this case, but in doing a bit of research I found this other local Colorado article from August reporting on a similar decision by another state judge which explains that Colorado prosecutors are apparently the ones objecting to the new Colorado statutory rule providing for a lower resentencing range for juveniles previously convicted of only felony murder. Here is how this other article explains the legal dynamics seemingly in play:

In his ruling, Epstein found that the state Legislature exceeded its authority when it provided the possibility of a 30- to 50-year sentence for felony murder convicts. He granted a motion by the El Paso County District Attorney's Office that attacked the law on procedural grounds, arguing that the sentencing range is unconstitutional because the reduced sentence wouldn't be available to anyone convicted of felony murder before or after the 16-year period. One of Medina's attorneys, Nicole Mooney, said prosecutors in at least three other jurisdictions have filed similar motions, and suggested that prosecutors' success in El Paso County could encourage more challenges — and embolden judges to grant them.

Prosecutor Jennifer Viehman, who mounted the successful challenge, said the 2016 law violated the state Constitution's provisions for special legislation by creating a "closed class" of beneficiaries. "You can't just single out a little special class of people, and make laws just for them," she said. "That's what the judge agreed with." Without the chance for parole after 30 years, then only one sentence is available — life in prison with the chance for parole after 40 years.

I surmise from this second article that judges are finding the distinct resentencing provisions for those convicted of felony murder to be a kind of problematic "special" legislation under Colorado constitutional law. Without expertise in state constitutional law, I cannot quite be sure if that is a sound or suspect conclusion.

UPDATE A helpful reader sent me a copy of the 48-page opinion in the Brooks case, which can be downloaded below and has the following section in its introductory paragraphs:

For the reasons articulated in this Order, the Court finds that the defendant must be resentenced, but concludes that the statutory provisions authorizing a determinate prison sentence of thirty to fifty years with ten years of mandatory parole are invalid because they constitute prohibited special legislation under the Colorado Constitution. The Court, therefore, grants the People’s motion to declare the relevant statutory provisions unconstitutional and denies the defendant’s request for a thirty-year prison sentence with ten years of mandatory parole.  In light of these rulings, and based on the legislature’s intent, the Court determines that the defendant must be resentenced to a term of life in prison with the possibility of parole after forty years.

Download Brooks - Post-Conviction Order

October 16, 2017 in Assessing Miller and its aftermath, New USSC crack guidelines and report, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, October 15, 2017

LWOP+ sentence imposed for impaired driver who killed two in Florida

Long-time readers know I am sometimes inclined to complain about repeat drunk drivers getting lenient sentences unless and until they hurt someone.  But once an impaired driver starts hurting or killing, sentences then can often get quite severe.  A helpful reader alerted me to this notable local story from Florida reporting on the severest possible sentence imposed on an impaired driver in Texas headlined "Trucker gets life in prison on DUI charges from crash that killed two Naples women." Here are excerpts with emphasis on the sentencing particulars:

It was an impact statement about a moment of impact. “In one single second, my best friend, my wife .. my entire world came crashing down,” Dan Jenkins said, describing the horror as he watched a Kenworth tractor slam into a car driven by his wife on a rural Central Florida road in 2011. And it had the desired impact.

Circuit Court Judge Marcus Ezelle sentenced Michael John Phillips, 52, to life in prison plus 15 years for DUI manslaughter in the deaths of Jennifer Jenkins, 35, and Kathleen O’Callaghan, 34.

The two friends from their days as schoolgirls in Naples were killed as they drove toward Orlando for the birthday party of another friend. Dan Jenkins was following in a second vehicle, the couple’s 2-month-old daughter with him.

Phillips, found guilty by a Hardee County jury in August, could have been sentenced to as little as 25 years, according to state sentencing guidelines. But eight family members and friends gave victim impact statements at Friday’s sentencing, each asking Ezelle to impose the maximum penalty of life in prison. Ezelle went symbolically further, pronouncing a life sentence for one count of DUI manslaughter and an additional 15 years for the second....

In Florida, judges must sentence defendants based on a score tabulated in a pre-sentence investigation. Phillips’ score was 364.4. Had it been 363 or lower, a life sentence would not have been an option. Factors that boosted his score included drug arrests dating 30 years, a refused drug test while free on bond in this case and then absconding on that bond, which delayed the case for several months while authorities searched for him.

Defense attorney Kelley Collier asked Ezelle for a sentence of less than life in prison, in part because Phillips was just over the points threshold. He said Phillips, who tested positive for methamphetamine in his system, basically fell asleep at the wheel of the truck. “He does not have a conscious recollection of the accident,” he told Ezelle.

Falling asleep at the wheel is not a reaction one would expect from using methamphetamine, Collier said. “I would argue that the facts are not the kind of facts that would warrant that kind of (life) sentence,” Collier said.

Ezelle said the fact that Phillips didn’t intend to cause the crash wasn’t relevant. The manslaughter conviction, by its nature, presumes the guilty party didn’t premeditate the crime. Instead, the case was about creating risk that endangered others. “Mr. Phillips, by his decisions, weaponized a commercial vehicle,” Ezelle said.

Collier said he plans to file an appeal of Phillips' conviction, based in part on expert testimony he said should have been disallowed at trial. Family members had been frustrated by the slow pace of the case. It took investigators almost a year to charge Phillips. Friday’s sentencing occurred just two days shy of the fifth anniversary of those charges being formally filed in court....

Dan Jenkins said the life sentence will make it easier to explain the tragedy to his daughter, Ashley, now almost 6, when she asks about her “Momma Jen.” “Now I can tell her the man is in jail for the rest of his life. I can look at her and say that man will never hurt anybody again.”

I am pretty sure that Florida has no parole mechanism for these kinds of cases, so this life+ sentence is truly an LWOP+ sentence.  I am not so sure, but now wondering about, whether this defendant could have and would have received a much lower sentence had he been willing to plead guilty.  Relatedly, it is unclear what particular facts and factors were critical at trial for his convictions and how much "expert testimony" may have made a difference.  Whatever the plea/trial backstory, I now have another example for my students of how relatively common risky behavior can be punished severely when it results in particularly tragic harms.

October 15, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Friday, October 13, 2017

Just a handful of headlines from the various front-lines of the opioid epidemic

I could readily fill this blog multiple times a day with tales of the opioid epidemic given the size and reach of the problem and the attention it is getting from many quarters.  In my view, the epidemic is, first and foremost, a public health issue.  But, as I say often on in this space and elsewhere, every major issues of public policy is a criminal justice/sentencing issue in some way.  These recent stories/headlined highlight these realities in various ways: 

October 13, 2017 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5)

Tuesday, October 10, 2017

Big fine and community service, but no prison time, for law firm CFO convicted of fraud in NY state court

This Reuters article, headlined "Ex-Dewey & LeBoeuf executive avoids prison time after fraud conviction," report on the alternative sentence a notable lawyer received after a conviction for his law firm's notable problems. Here are the details:

The former chief financial officer of defunct law firm Dewey & LeBoeuf, whose collapse five years ago was the largest failure of a law firm in U.S. history, has avoided prison time after being convicted of defrauding the firm’s investors. Joel Sanders, 59, was sentenced on Tuesday by Justice Robert Stolz in Manhattan Supreme Court to pay a $1 million fine and perform 750 hours of community service.

The sentence was handed down five months after the firm’s former executive director, Stephen DiCarmine, was acquitted of the same charges, and 19 months after prosecutors dropped charges against its former chairman, Steven Davis.

“I‘m deeply sorry for anything I did or didn’t do that caused anybody harm,” Sanders said in court before being sentenced. His lawyer, Andrew Frisch, declined to comment on the sentence. Frisch said in May that he planned to appeal Sanders’ conviction.

The office of Manhattan District Attorney Cyrus Vance had sought up to four years in prison for Sanders. The criminal case against Dewey & LeBoeuf’s executives was one of the most significant white-collar prosecutions brought by Vance since he took office in 2010. “This case demonstrates the Office’s commitment to prosecuting those who sacrifice professional integrity for financial gain,” Vance said in a statement on Tuesday.

The law firm, which once had close to 1,400 lawyers, went bankrupt in May 2012, unable to pay for the lavish compensation packages it had promised to recruit star partners. Prosecutors said the executives used illegal accounting adjustments between 2008 and 2012 to conceal the firm’s financial difficulties from investors in its bonds, including Bank of America Corp and HSBC Holdings Plc.

Seven lower-level employees pleaded guilty to criminal charges in connection with Vance’s investigation.

The first trial for the three executives ended in a mistrial in October 2015 when jurors, after four months of testimony and a month of deliberations, declared themselves hopelessly deadlocked on most counts.

After that trial, Davis struck a deal with prosecutors to avoid a second trial, agreeing to a five-year ban from practicing law in New York. Justice Robert Stolz dismissed the most serious charge, grand larceny, against the other two men. The second trial for Sanders and DiCarmine began in February 2017 and lasted about three months.

October 10, 2017 in Criminal Sentences Alternatives, Offense Characteristics, White-collar sentencing | Permalink | Comments (1)

Tuesday, October 03, 2017

Five notable GOP Senators introduce Mens Rea Reform Act of 2017

Download (3)As reported in this press release, yesterday "Senators Orrin Hatch (R-UT), Mike Lee (R-UT), Ted Cruz (R-TX), David Perdue (R-GA), and Rand Paul (R-KY) introduced legislation to strengthen criminal intent protections in federal law."  Here is more from the press release:

Their bill, the Mens Rea Reform Act of 2017, would set a default intent standard for all criminal laws and regulations that lack such a standard.  This legislation would ensure that courts and creative prosecutors do not take the absence of a criminal intent standard to mean that the government can obtain a conviction without any proof a guilty mind....

“Prosecutors should have to show a suspect had a guilty mind, not just that they committed an illegal act, before an American is put behind bars,” Sen. Lee said. “Unfortunately our federal laws contain far too many provisions that do not require prosecutors to prove a defendant intended to commit a crime.  The result is criminal justice system that over penalizes innocent acts which only undermines the rule of law."

“I’m proud to join Sen. Hatch in addressing one of the biggest flaws in our modern criminal justice system,”Sen. Cruz said. “Currently, the federal government can send men and women to prison without demonstrating criminal intent.  As Congress works to address criminal justice reform, the Mens Rea Reform Act needs to be enacted to protect the rights of all Americans.”

The press release includes "Statements of Support" from John Malcolm of the Heritage Foundation, Norman Reimer of the National Association of Criminal Defense Lawyers, and David Patton of the Federal Defenders of New York.   And in conjunction with this bill introduction, Senator Hatch Senator Hatch yesterday delivered this speech on the Senate floor about the need for mens rea reform.  Here are excerpts from that speech:

Like many of my colleagues, I believe Congress has criminalized far too much conduct and has mandated overly harsh penalties for too many crimes. A number of my colleagues have sought to address these problems by cutting prison sentences, altering statutory minimums, or releasing prisoners earlier for good behavior. But as we seek to reform the criminal justice system, we must be careful not to overlook one of the major roots of the problem: the lack of adequate criminal intent requirements in federal criminal statutes....

Unfortunately, many of our current criminal laws and regulations contain inadequate mens rea requirements — and some contain no mens rea requirement at all. This leaves individuals vulnerable to prosecution for conduct they believed to be lawful.

In recent years, as Congress and federal agencies have criminalized more behavior, they have often been vague about mens rea requirements, or even silent about mens rea altogether. In a 2014 Tennessee Law Review article, Michael Cottone investigated how many federal criminal statutes there are in the US code. Mr. Cottone explained that “tellingly, no exact count of the number of federal statutes that impose criminal sanctions has ever been given.” Most scholars agree there are approximately 5,000 federal statutes that impose criminal sanctions. But those criminal statutes do not include the nearly 300,000 federal regulations that also carry criminal penalties.

With so many criminal laws on the books, it’s far too easy for Americans to break federal laws unwittingly, with no understanding whatsoever that their behavior is illegal. For example, did you know it’s a federal crime to write a check for an amount less than $1 dollar? Or that it’s a federal crime to allow a pet to make a noise that frightens wildlife on federal land? Even more incredibly, did you know it’s a federal crime to keep a pet on a leash that exceeds six feet in length on federal land?

Mr. President, these are only a few examples of unlawful activities that reasonable people could not reasonably be expected to know. What’s worse, many of these unlawful activities are punishable by time in prison. This is not only ridiculous; it’s immoral. The lack of adequate mens rea requirements in our federal criminal code subjects innocent people to unjustified punishment....

Our bill sets a default intent requirement of willfulness for all federal criminal offenses that lack an intent requirement. Additionally, the bill defines willfulness to mean that the person acted with knowledge that his or her conduct was unlawful. Naturally, our bill does not apply to any offenses that Congress clearly intended to be strict liability offenses. Our proposal has garnered widespread support from a variety of organizations, including the National Association of Criminal Defense Lawyers, Koch Industries, the Federal Defenders, the US Chamber of Commerce, the Federal Defenders, and the Heritage Foundation, just to name a few. Importantly, our bill does not remove any crimes from the books, nor does it override any existing mens rea standards written in statute. Moreover, it does not limit Congress’s authority to create new criminal offenses—including strict liability offenses.

Mr. President, mens rea really is a simple issue. Individuals should not be threatened with prison time for accidently committing a crime or for engaging in an activity they did not know was wrong. If Congress wants to criminalize an activity, and does not want to include any sort of criminal intent requirement, Congress should have to specify in statute that it is creating a strict liability offense.

I believe this simple legislative solution will go a long way in reducing harsh sentences for morally innocent offenders. It will also push back against the overcriminalization of innocent behavior. As I’ve said many times, any consideration of criminal justice reform or sentencing reform is incomplete without reforms to mens rea requirements.

I cannot yet find the full text of the Mens Rea Reform Act of 2017 on-line, but I suspect it is very similar if not identical to the previously introduced Mens Rea Reform Act of 2015 available here.  It does not seem that Senator Hatch was a cosponsor of the 2015 version of this bill, so I think it is a very good sign that Senator Hatch is now apparently leading the charge for this reform (and doing so by stressing that he believes Congress has "mandated overly harsh penalties for too many crimes").

As long-time readers recall (and as detailed in some prior posts below), there is reason to believe that misguided opposition to this kind of mens rea reform by the Obama Administration and some Democrats contributed to the failure of bipartisan sentencing reforms to make it through Congress.  I am hopeful (but not optimistic) that the current Administration is more supportive of this kind of mens rea reform; I am also hopeful that this bill might be linked to broader sentencing reform efforts and that both might get moving forward in the legislative process in the coming weeks and months.

Some recent and older related posts:

October 3, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Wednesday, September 27, 2017

Should New Jersey be more regularly championed for its profound success in reducing prison populations and crime rates?

New-jersey-clipart-toonvectors-5159-140The question in the title of this post is prompted by this local article, headlined "Why is the N.J. prison population shrinking? (It's not just about less crime...)," which highlights how and how successful the Garden State has been in reducing its prison population.  Here are excerpts from the article:

The big house is getting smaller. Fewer people are going to prison in New Jersey these days and the numbers continue to drop, according to an analysis of state Department of Corrections data over the past five years.

Those incarcerated in New Jersey — including men and women in prison, juveniles in detention, and detainees still in halfway houses — dropped this year to 19,619, from 21,123 in 2013. That marked a decline of more than 15 percent.

In fact, the state's inmate population has fallen more from its peak in the 1990s than any other state in the country, according to The Sentencing Project, a Washington-based criminal justice reform group. Since 1999 — when more than 31,000 people were behind bars in New Jersey — the number of inmates has plunged by more than a third. "New Jersey leads the nation in prison population reduction," said Todd Clear, a prison policy expert at the Rutgers School of Criminal Justice.

Crime has been going down in New Jersey in recent years. But that doesn’t really tell the story of what's happening in the state's prisons, according to Marc Mauer, executive director of The Sentencing Project. "It's not necessarily one shift that can produce a shift of this magnitude," he said, attributing much of it to the creation of the state's drug courts that focus on diverting people from prison, as well as changes in the parole system that make it less likely someone will be put back behind bars for minor technical violations of their parole.

The corrections department data underscores the impact on how the state treats drug crime. The percentage of those serving time for drug crime is down more significantly than for inmates convicted of any other offense.... According to corrections department officials, a five-year phase-in under Gov. Chris Christie of mandatory drug courts for non-violent offenders, which was expanded to all 21 counties across the state, redirected thousands from state prison and into drug treatment programs.

At the same time, they credited the so-called "ban the box" legislation prohibiting employers from discriminating against people with expunged criminal records, as well as accelerating some expungements, increasing the type of convictions that can be expunged and reducing the waiting period to expunge an entire juvenile record, have given some inmates a better opportunity of finding a job and staying out of prison....

Department of Corrections officials said with the decline in inmate population, they have consolidated facilities and closed some units, reducing overtime costs. "This practice allowed us to undertake much-needed renovations in our facilities," said spokesman Matthew Schuman. "In fact, as part of our consolidation program, we closed Mid-State Correctional Facility in June 2014."

Mid-State reopened in April 2017 as the first licensed, clinically driven drug treatment program provided by the NJDOC. At the same time, a similar substance use disorder program for female offenders became operational at Edna Mahan Correctional Facility for Women.

Unfortunately, this new article does not address what has become of crime rates and recidivism rates during this period in which New Jersey has been shrinking its prison population, but I think the data is also encouraging.  Specifically, crime data for New Jersey here and here suggests crime has gone down as much if not more in NJ than elsewhere in the country and the state even seems to be largely avoiding the crime spikes that a number of other regions have seen in the last two years.  And this local article from last years reports that the state's corrections "Chief of Staff Judith Lang ... said New Jersey’s recidivism rate has lowered from 48 percent to 32 percent" thanks in part to state investment in reentry services.

Though outgoing New Jersey Governor Chris Christie will be leaving office with very low approval ratings, the citizens of New Jersey and all those interested in criminal justice reform should praise his efforts in this arena and the broader achievements of all New Jersey policymakers and officials in recent years.  Especially if New Jersey continues to keep crime rates and prison populations low, the state will continue to be an important success story for modern criminal justice reforms that other jurisdictions should aspire to emulate.

September 27, 2017 in National and State Crime Data, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Tuesday, September 26, 2017

DOJ seeking DC Circuit en banc review of panel ruling finding 30-year mandatory minimums unconstitutionally excessive for Blackwater contractors who killed Iraqis

In this post last month, I noted the remarkable split DC Circuit panel opinion in US v. Slatten, No. 15-3078 (DC Cir. Aug. 4, 2017) (available here).  I am now not surprised to learn from this news report that the "Justice Department asked a full federal appeals court Monday to review a decision to throw out the first-degree murder conviction of one former Blackwater Worldwide security guard and the sentences of three others in shootings that killed 14 unarmed Iraqi civilians in Baghdad in 2007."  Here are the details:

Acting Solicitor General Jeffrey B. Wall approved the decision, which was expected and filed by appeals lawyers for the department’s criminal division, to seek a full court review by the U.S. Court of Appeals for the D.C. Circuit, after a three-judge panel ruled Aug. 4.

The panel said a trial court “abused its discretion” in not allowing Nicholas A. Slatten, 33, of Sparta, Tenn., to be tried separately from his three co-defendants in 2014 even though one of them said he, not Slatten, fired the first shots in the massacre.  Slatten was convicted of murder.

By a separate, 2-to-1 vote, the panel also found that the 30-year terms of the others convicted of manslaughter and attempted manslaughter — Paul A. Slough, 37, of Keller, Tex.; Evan S. Liberty, 35, of Rochester, N.H.; and Dustin L. Heard, 36, of Maryville, Tenn. — violated the constitutional prohibition against “cruel and unusual punishment.”  They received the enhanced penalty because they were also convicted of using military firearms while committing a felony, a charge that primarily has been aimed at gang members and never before been used against security contractors given military weapons by the U.S. government.

The Justice Department filing called the panel’s sentencing finding “as wrong as it is unprecedented,” saying the U.S. Supreme Court has upheld longer sentences for lesser crimes. “By its plain terms, the statute applies to defendants, who used their most fearsome weapons to open fire on defenseless men, women, and children,” the department said. “Far from being unconstitutional, these sentences befit the ‘enormity’ of defendants’ crimes.”

The government also cited “legal and factual errors” in the ruling granting Slatten a retrial, noting the “great international consequence” of his prosecution for “a humanitarian and diplomatic disaster.” A retrial in “a prosecution of this magnitude (including reassembling the many Iraqi witnesses) poses considerable and uncommon challenges,” the department wrote, urging the full court to reconsider “in a case of such exceptional importance.”

In their own filing Monday, attorneys for the four men asked the full court to toss out the case on jurisdictional grounds and so reverse the panel’s finding that civilian contractors supporting the Pentagon could be prosecuted under the Military Extraterritorial Jurisdiction Act....

A group representing family members and friends of the four tweeted a statement from Slatten last month that said, “Public outrage may be our only chance at true justice for all four of us. While it may be too early to seek pardons for my brothers from President Trump, he especially needs to hear from you.”

I have been meaning to write more about the extraordinary Eighth Amendment analysis in the Slatten decision, but I have been holding back in part due to my sense that en banc or even certiorari review may be forthcoming. The jurisprudential and political elements of this case are truly fascinating, and I really have no idea if the full DC Circuit and/or SCOTUS may want to take up this hot potato of a case. And in the wake of the Arpaio pardon, perhaps Prez Trump will be inclined to jump into the case at some point, too.

Prior related post:

September 26, 2017 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, September 25, 2017

Anthony Weiner given 21 months in federal prison after his plea to "transferring obscene material to a minor"

Anthony Weiner was scheduled to be sentenced at 10am this morning in the Southern District of New York federal courtroom, and apparently US District Judge Denise Cote did not need very long to figure out what sentence she thought fitting.  This AP piece provides a blow-by-blow, and here are excerpts:

A prosecutor has urged a judge in New York City to sentence Anthony Weiner to a significant prison sentence to end his “tragic cycle” of sexting.

Assistant U.S. Attorney Amanda Kramer told a Manhattan federal court judge Tuesday that Weiner on three occasions in 2016 asked a 15-year-old girl to display her naked body online and to perform for him. The prosecutor noted that sexting had already ruined Weiner’s congressional career and spoiled his run for mayor of New York City before he began interacting with the teenager. Kramer said Weiner should go to prison for between 21 months and 27 months....

Anthony Weiner called his crime his “rock bottom” as he spoke just before a judge in New York City sentences him for his sexting crime. Weiner fought back tears and occasionally cried Monday as he read from a written statement on a page he held in front of him in Manhattan federal court. He said he was “a very sick man for a very long time.” He asked to be spared from prison.

The Democrat’s lawyer, Arlo Devlin-Brown, had asked that Weiner serve no prison time....

Anthony Weiner has been sentenced to 21 months in prison for sexting with a 15-year-old girl in a case that may have cost Hillary Clinton’s the presidency.... Anthony Weiner must report to prison by Nov. 6 to begin serving his 21-month sentence for sexting with a 15-year-old girl.

As his sentence was announced Monday, the former Democratic congressman from New York dropped his head into his hand and wept, then stared straight ahead.  After the hearing ended and Judge Denise Cote left the bench, he sat in his seat for several minutes, continuing to cry.  Weiner was also fined $10,000.  After his sentence is served, he must undergo internet monitoring and must have no contact with his victim. He must also enroll in a sex-offender treatment program.  

Before announcing the sentence, Cote said there was “no evidence of deviant interest in teenagers or minors” on Weiner’s part.  She also said he is finally receiving effective treatment for what she said has been described as “sexual hyperactivity.”

 Prior related posts:

September 25, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17)

Official FBI crime data confirms that 2016 saw another notable increase in violent crime and further reductions in property crime

Early markers suggested that violent crime was increasing in 2016 in the United States, after having increased in 2015 following record low violent crime rates in 2014.  This official FBI press release provides these basics:

The estimated number of violent crimes in the nation increased for the second straight year, rising 4.1 percent in 2016 when compared with 2015 data, according to FBI figures released today. Property crimes dropped 1.3 percent, marking the 14th consecutive year the collective estimates for these offenses declined.

The 2016 statistics show the estimated rate of violent crime was 386.3 offenses per 100,000 inhabitants, and the estimated rate of property crime was 2,450.7 offenses per 100,000 inhabitants.  The violent crime rate rose 3.4 percent compared with the 2015 rate, and the property crime rate declined 2.0 percent.

These and additional data are presented in the 2016 edition of the FBI’s annual report Crime in the United States.  This publication is a statistical compilation of offense, arrest, and police employee data reported by law enforcement agencies voluntarily participating in the FBI’s Uniform Crime Reporting (UCR) Program.  The UCR Program streamlined the 2016 edition by reducing the number of tables from 81 to 29, but still presented the major topics, such as offenses known, clearances, and persons arrested.  Limited federal crime, human trafficking, and cargo theft data are also included....

Of the 18,481 city, county, university and college, state, tribal, and federal agencies eligible to participate in the UCR Program, 16,782 submitted

  • In 2016, there were an estimated 1,248,185 violent crimes. Murder and nonnegligent manslaughter offenses increased 8.6 percent when compared with estimates from 2015.  Aggravated assault and rape (legacy definition) offenses increased 5.1 percent and 4.9 percent, respectively, and robbery increased 1.2 percent.
  • Nationwide, there were an estimated 7,919,035 property crimes. The estimated numbers for two of the three property crimes show declines when compared with the previous year’s estimates. Burglaries dropped 4.6 percent, larceny-thefts declined 1.5 percent, but motor vehicle thefts rose 7.4 percent.
As readers surely know, rising crime rates always provide fodder for politicians and others to championing tougher sentencing regimes, and we have heard both Prez Trump and Attorney General Sessions stress rising violent crime as a justification for certain policies. I suspect we may soon see these new FBI data appearing in speeches by DOJ officials and others, though folks eager to push back on concerns about a modern new crime wave have already been talking up the recent Brennan Center analysis discussed here suggesting crime rates may be stabilizing or declining in 2017.

At the risk of seeming a bit too Pollyannaish, I think the FBI report that property crimes in 2016 dropped for the 14th consecutive year is a big piece of the national crime story very much worth celebrating. Though violent crimes rates understandably get the most attention, property crimes impact the most people — there are, roughly speaking, more than five property crimes for every violent crime — so drops property crimes can end up meaning a lot more persons and families experienced a crime-free year even when there are spikes in violent crime.

I expect various policy folks will be mining this latest FBI data for crime-specific and region-specific stories. I will try to cover some of the coming coverage and analysis in coming posts.

September 25, 2017 in Data on sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (6)

Sunday, September 24, 2017

On eve of federal sentencing, any final predictions (or desires) for Anthony Weiner's punishment for underage sexting?

As previewed in prior posts linked below and as set up in this new AP piece, the next chapter (and I fear not the last) in the sordid sorry story of Anthony Weiner will play out tomorrow in a federal court in New York.  Here are the basics:

It seemed as if Anthony Weiner had hit rock bottom when he resigned from Congress in 2011. "Bye-bye, pervert!" one heckler shouted as the Democrat quit amid revelations that he had sent graphic pictures of himself to women on social media. Time has shown his self-destructive drama had only just begun.

Weiner, 53, is set to be sentenced Monday for sending obscene material to a 15-year-old girl in a case that may have also have played a role in costing Hillary Clinton — former boss of Weiner's wife, Huma Abedin — the presidential election.

Federal prosecutors have asked for a sentence of slightly more than two years behind bars because of the seriousness of the crime, in which Weiner sent adult porn to the girl and got her to take her clothes off for him on Skype. "The defendant did far more than exchange typed words on a lifeless cellphone screen with a faceless stranger," prosecutors wrote to the judge. "Transmitting obscenity to a minor to induce her to engage in sexually explicit conduct by video chat and photo — is far from mere 'sexting.'"

But Weiner's attorneys contend he is a changed man who has finally learned his lesson, calling his compulsive sexting a "deep sickness" best treated without time behind bars. The memo also suggested Weiner himself was a victim of the scandal, saying the North Carolina high school student initiated contact with him because she "hoped somehow to influence the U.S. presidential election" and write a tell-all book.

I have just had a chance to review this short sentencing memo that the government filed a few days ago. I found remarkable both the stupidity of Weiner's decision to "sext" with in an obviously underage girl, as well as the government's conclusion that applicable guideline calculations produce "offense level of 33 [meaning] the resulting Guidelines range would be 135 to 168 months’ imprisonment, but for the statutory maximum of 120 months’ imprisonment."  Luckily for Weiner, the "the Government agreed that a sentence within the range of 21 to 27 months’ imprisonment (which would be the applicable Guidelines range without application of the cross-references) would be fair and appropriate under the specific circumstances of this case."  And the Government makes this assertion in support of a prison sentence in that range: "Weiner’s demonstrated history of professed, yet failed, reform make it difficult to rely on his present claim of self-awareness and transformation. On this record, a custodial sentence is necessary to truly effect specific deterrence and prevent the defendant from committing this crime in the future."

Meanwhile, in his lengthy sentencing memo includes, in its words, "Anthony’s own deeply personal meditation to the Court on sickness and recovery (Exhibit 1 to this submission) that speaks most powerfully to his progress."  It also asserts, I think accurately, that Weiner's "wrongful conduct is on orders of magnitude less egregious than any case involving sexually explicit communications with a teenager that has ever been prosecuted in this district" and that "factors the Court must consider under 18 U.S.C. § 3553(a) — in isolation and taken together — demonstrate that a sentence of imprisonment is not required here and would result in punishment greater than necessary to achieve the goals of sentencing."

So, dear reader, what do you expect Anthony Weiner will get at sentencing?  I tend predict a "split the difference" outcome in cases like this, so I would be inclined to expect a sentence of a year and a day for him.  Something even a bit shorter would not surprise me, and I would actually be surprised if Weiner got anything more than 21 months.  In the end, at least for me, I have a hard time viewing Weiner's extraordinary stupidity as the involving the kind of evil or danger that really justifies a long federal prison term. 

Prior related posts:

September 24, 2017 in Booker in district courts, Celebrity sentencings, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (6)

Thursday, September 21, 2017

Ohio intermediate appeals court, finding functional LWOP sentence excessive for multiple burglaries, cuts 50 years off term

A helpful former student alerted me to an interesting state appeals court ruling in my own backyard handed down last week. Even though the ruling in State v. Gwynne, 2017-Ohio-7570 (5th Dist. Sept. 11, 2017) (available here), is pretty brief, the issues raised by both the case facts and the state appeals ruling could occupy an entire modern sentencing course. Here are some snippets that should prompt sentencing fans to check out the full opinion:

Defendant-Appellant [stole] from at least 12 different nursing homes and assisted living facilities in both Delaware and Franklin counties over the course of eight years. Detectives were unable to connect all of the property to its rightful owners. During part of appellant’s spree, she was employed as a nurse’s aide.  After she was fired for suspicion of theft, however, she continued to dress as a nurse’s aide, in order to enter nursing homes and steal from residents while appearing to be a legitimate employee....

At the change of plea hearing, appellant admitted that she had been stealing from nursing home residents since 2004, four years earlier than the earliest charge in the indictment.  Some residents she knew and worked with, others she did not.  She claimed a cocaine habit was to blame, and that she took cash as well as other items to sell to support her habit.

At the sentencing hearing held on November 7, 2016, the trial court indicated it had reviewed the PSI, sentencing memoranda from the state and appellant, as well as the victim impact statements.  The state recommended 42 years incarceration.  Counsel for appellant advocated for intensive supervision community control, and a period of time in a community based correctional facility.

After considering all of the applicable sentencing statutes, and making all of the required findings, the trial court imposed a sentence of three years for each of the 15 second degree felony burglaries, 12 months for each of the third degree felony thefts, 12 months for each of the fourth degree felony thefts, and 180 days for each first degree misdemeanor receiving stolen property.  The court ordered appellant to serve the felony sentences consecutively, and the misdemeanor sentences concurrently for an aggregate of 65 years incarceration....

Appellant was 55 years old at the time of her sentencing....

We do not minimize the seriousness of appellant's conduct. On this record, however, we find the stated prison term of 65 years does not comply with the purposes and principals of felony sentencing....  A sentence of 65 is plainly excessive.  It can be affirmatively stated that a 65 year sentence is a life sentence for appellant.  Even a sentence of 20 years, considering the purposes and principles of sentencing and weighed against the factual circumstances of this case, would seem excessive.

The sentence is an emotional response to very serious and reprehensible conduct.  However, the understandably strong feelings must be tempered by a sanction clearly and convincingly based upon the record to effectuate the purposes of sentencing.  The sentence imposed here does not do so.  It is disproportionate to the conduct and the impact on any and all of the victims either individually or collectively.  It runs the risk of lessening public respect for the judicial system.  The imposition of a 65 year sentence for a series of non-violent theft offenses for a first-time felon shocks the consciousness.  We therefore find by clear and convincing evidence that the record does not support the sentence.....

We agree, however, with the trial court’s findings relating to the necessity of a prison sentence, and that consecutive sentences are warranted.  We therefore modify appellant’s sentence pursuant to R.C. 2953.08(G)(2) ... [to reach] an aggregate term of 15 years of incarceration.  Given the facts of this case, we find 15 years incarceration consistent with the principles and purposes of sentencing.

Though much can be said about this case, the scope of imprisonment considered at every level of this case startles me and yet I fear startles few others. Prosecutors, even after getting a plea, claimed that this woman at age 55 needed to be subject to 42 years incarceration, at the end of which she would be 97 years old.  The judge apparently decided that was not harsh enough, and thus imposed a sentence that would run until this woman was 130!  Thanks to an unusual appeals court ruling, this defendant now has to be grateful she will only be imprisoned until age 70.  Wowsa.

September 21, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)

Federal prosecutors say Anthony Weiner merits years in prison for his online sexual offense

As reported in this AP piece, headlined "Government: Prison fits Weiner's sex crime on teen victim," federal prosecutors have filed their sentencing recommendation in the Anthony Weiner case. Here are the details:

Former U.S. Rep. Anthony Weiner is more than a serial digital philanderer — he's a danger to the public who deserves two years in prison for encouraging a 15-year-old girl to engage in online sex acts, prosecutors told a judge Wednesday. A Manhattan judge is scheduled to sentence the New York Democrat on Monday for transferring obscene material to a minor.

The government urged the judge to put Weiner's claims of a therapeutic awakening in a context of a man who made similar claims after embarrassing, widely publicized interactions with adult women before encountering the teenager online in January 2016. Prosecutors said his conduct "suggests a dangerous level of denial and lack of self-control."

"This is not merely a 'sexting' case," prosecutors wrote. "The defendant did far more than exchange typed words on a lifeless cellphone screen with a faceless stranger. ... Transmitting obscenity to a minor to induce her to engage in sexually explicit conduct by video chat and photo — is far from mere 'sexting.' Weiner's criminal conduct was very serious, and the sentence imposed should reflect that seriousness."

Weiner, 53, said in a submission last week that he's undergoing treatment and is profoundly sorry for subjecting the North Carolina high school student to what his lawyers called his "deep sickness." Prosecutors attacked some of Weiner's arguments for seeking leniency and noted his full awareness beforehand of his crime, citing his co-sponsorship in January 2007 of a bill to require sex offenders to register their email and instant message addresses with the National Sex Offender Registry....

The government said Weiner's "widely-reported prior scandals" were not criminal in nature and did not involve minors but should be considered at sentencing because they reveal a familiar pattern. "He initially denied his conduct; he suffered personal and professional consequences; he publicly apologized and claimed reform. Yet, he has, on multiple occasions, continued to engage in the very conduct he swore off, progressing from that which is self-destructive to that which is also destructive to a teenage girl," prosecutors said.  They added: "Weiner's demonstrated history of professed, yet failed, reform make it difficult to rely on his present claim of self-awareness and transformation."

Defense lawyers had portrayed the girl as an aggressor, saying she wanted to generate material for a book and possibly influence the presidential election. Prosecutors responded that Weiner should be sentenced for what he did, and his victim's motives should not influence his punishment. A defense lawyer declined to comment Wednesday.

In a plea bargain, Weiner has agreed not to appeal any sentence between 21 and 27 months.  Prosecutors said the sentence should fall within that span, and they noted that Probation Office authorities had recommended a 27-month prison term.

Prior related posts:

September 21, 2017 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (10)

Monday, September 18, 2017

"Why Did a Federal Judge Sentence a Terminally Ill Mother to 75 Years for Health Care Fraud?"

The question in the title of this post is the headline of this recent law.com article about a notable (and notably harsh) federal sentencing.  Here are some of the details, with some commentary to follow:

A federal judge in Texas sentenced a terminally ill woman to 75 years in prison last month for bilking Medicare — an apparent record sentence for the U.S. Department of Justice for health care fraud.

Marie Neba, 53, of Sugar Land, Texas, was sentenced by U.S. District Judge Melinda Harmon of the Southern District of Texas on eight counts stemming from her role in a $13 million Medicare fraud scheme.  Neba, the owner and director of nursing at a Houston home health agency, was convicted after a two-week jury trial last November.  At the sentencing on Aug. 11, the government recommended a 35-year imprisonment, said Michael Khouri, who started representing Neba as her private attorney shortly after the trial... 

The unusually lengthy sentence for what health care fraud legal experts call a relatively routine case has them scratching their heads, even in this recent era of the federal government’s crackdown on health care fraud.  Neba, the mother of 7-year-old twin sons, was diagnosed in May with stage IV metastatic breast cancer that has spread to her lungs and bones, according to Khouri, who has filed an appeal of the conviction and the sentence.  She currently is receiving chemotherapy treatments and is in custody in a federal detention center.  “Marie Neba is a mother, a wife and a human being who is dying. If there is any defendant that stands before the court that deserves a below-guideline sentence … it’s this woman that stands before you,” Khouri argued before Harmon at the sentencing hearing, according to a transcript recently obtained by ALM....

Patrick Cotter, a former federal prosecutor who heads the government interaction and white-collar practice group at Greensfelder, Hemker & Gale in Chicago, said given the circumstances, he would have expected Neba to receive a sentence of several years in prison.  “Nothing is surprising in that she went to jail and not for six months,” he said. “But how you get anything close to 75 years is beyond me and makes no sense at all.  In 35 years, I have never heard of the government’s [prison term] recommendation being doubled by the judge, particularly when the government is asking for a tough sentence anyway.”

Gejaa Gobena, a litigation partner at Hogan Lovells and former chief of the DOJ Criminal Division’s Health Care Fraud Unit, concurred. “We prosecuted hundreds of cases and never had a sentence approaching anywhere near this,” Gobena said.

Legally, the answer to how the long sentence came about is not that difficult: Harmon, applying several enhancements under the federal sentencing guidelines, imposed the statutory maximum prison term on each charge, and then ran them consecutively.  “I am not a heartless person. I think I am not. I hope I am not,” Harmon told Neba before announcing the sentence. “It must be a terrible experience that you are going through, Ms. Neba, and I don’t want you to think that by sentencing you to what I am going to sentence you to that I’m trying to heap more difficulties on you because I am not. … It’s just the way the system works, the way the law works. You have been found guilty of a number of counts by a jury, and this is what happens.”

Even so, historically, the case is highly unusual, breaking the previous record by 25 years.  Since a pair of U.S. Supreme Court decisions in December 2007 that reaffirmed that the federal sentencing guidelines are merely advisory, federal trial judges have much greater latitude to impose what they think are appropriate sentences, even if the guidelines call for higher or lower sentences.  The longest health care fraud sentence prior to Neba’s came in 2011, when Lawrence Duran, the owner of a Miami-area mental health care company, was sentenced to 50 years for orchestrating a $205 million Medicare scheme that defrauded vulnerable patients with dementia and substance abuse. The next longest? Forty-five years in 2015 for a Detroit doctor who gave chemotherapy to healthy patients, whom federal prosecutors then called the “most egregious fraudster in the history of this country.”

According to court documents, Neba, from 2006 to 2015, conspired with others to defraud Medicare by submitting more than $10 million in false claims for home health services provided through Fiango Home Healthcare Inc., owned by Neba and her husband and co-defendant, Ebong Tilong. Using that money, Neba paid illegal kickbacks to patient recruiters for referrals and to Medicare beneficiaries who allowed Fiango to use their Medicare information to bill for home health services that were not medically necessary nor provided, and, all told, received $13 million in ill-gotten Medicare payments, the documents said.

Neba was convicted of one count of conspiracy to commit health care fraud, three counts of health care fraud, one count of conspiracy to pay and receive health care kickbacks, one count of payment and receipt of health care kickbacks, one count of conspiracy to launder monetary instruments and one count of making health care false statements.

Four co-defendants, including Tilong, have pleaded guilty in the case. He is scheduled to be sentenced on Oct. 13....

Harmon, through her case manager, declined to comment on the case. The transcript, however, reveals several factors that influenced her decision to impose the lengthy prison term, including: “Most importantly,” Neba’s sentencing guideline range of life imprisonment (though Harmon was proscribed by statutory maximums from imposing a life sentence);..... Neba’s attempt to obstruct justice by telling a co-defendant, before arraignment in the federal courthouse, “to keep to her story,” specifically “not to tell anybody that she, [the co-defendant], was paying the patients.”

Neba’s decision to go to trial on the charges, rather than plead guilty and provide some sort of government assistance, also played a role in her sentence. Had she pleaded guilty to one or more of the charges “at the very beginning without obstruction of justice,” and received the highest credit for cooperation for doing so, Neba’s sentencing guideline range would have been 14.5 years, federal prosecutor William Chang told Harmon during the hearing. “Had the same thing happened and she received no [credit] whatsoever, it would be 21.8 years,” he added. “If she had gone to trial and been convicted, but no obstruction of justice, the sentence would have been 30 years on the calculation of the guidelines. So, we want the court to understand the United States’ principal position for what it seeks.”

Khouri, Neba’s attorney, said he plans to challenge on appeal the manner in which the sentencing guideline range was calculated and argue, among other matters, that the sentence is excessive.

I have quoted so much of this press report because the more details it provides, the more perverse the entire federal sentencing system seems along with the perversity of this particularly extreme sentence. For starters, though we supposedly have a federal sentencing system designed to sentence a defendant based principally on the seriousness of her offense, this defendant's guideline range ballooned from less than 15 years imprisonment to life imprisonment essentially because she put the government to its burden of proof at a trial and said the wrong thing to a co-defendant.

Trial penalty guideline calculations notwithstanding, now that the guidelines are advisory, a prosecutor and a judge would need to be able to justify such an extreme functional LWOP sentence based on all the 3553(a) statutory factors. No matter how seriously one regards health care fraud, I cannot fully understand how any of these factors (save the guideline range) can support this extreme sentence in this not-so-extreme case of fraud.  If reasonableness review has any substance whatsoever, and if the facts in this article are accurate, it seems to me that this sentence ought to be found substantive unreasonable.

September 18, 2017 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Noting judicial resistance (and legal questions) as Ohio law pushes judges to avoid state prison sentences for certain offenders

This fascinating article in the Columbus Dispatch, headlined "Some Ohio counties leery of Kasich program to divert low-level offenders from prison," highlights a novel and controversial new  sentencing law in Ohio that some local judges and official plainly dislike. Here are excerpts:

The 43-year-old career criminal broke into three Obetz businesses — a market and two pizza parlors — by smashing windows or door glass with rocks and concrete blocks over a four-day period last summer.  A Franklin County Common Pleas judge sent him to prison for two years, a decision that was upheld last week by the county court of appeals.  But under a program in which Franklin County will be required to participate beginning next July, the state will penalize the county for sending such an offender to prison.

The Targeted Community Alternatives to Prison program, approved by legislators in June as part of the state budget, seeks to reduce the prison population by diverting nonviolent, low-level felons to probation, local jails or community-based programs.  In return, the counties will receive grants from the state Department of Rehabilitation and Correction to offset the cost of supervising, treating or jailing those offenders in their communities.

The program, advocated by prisons Director Gary Mohr and Gov. John Kasich, has received opposition from judges and prosecutors across the state since it was proposed.  Most judges don’t like it because “it infringes on our discretion by telling us there are certain felons we can’t send to prison,” said Judge Stephen L. McIntosh, the administrative judge for Franklin County Common Pleas Court.

Some counties have decided that the grant money being offered by the state won’t be enough to cover the costs of keeping offenders in the community who otherwise would have gone to prison.  Others have offered a harsh assessment of a program that gives grants to judges in exchange for keeping certain offenders out of prison.  “Essentially what judges are being offered is a bribe,” Stark County Common Pleas Judge Kristin Farmer said in August when she and her colleagues on the bench encouraged their county commissioners not to participate in the program this year....

Franklin and Stark are among the state’s 10 largest counties, all of which are mandated under the law to participate in the program beginning July 1, 2018.  Franklin County’s Common Pleas judges will meet Tuesday to decide whether to participate in the program before the mandate kicks in, McIntosh said.  Last week, Cuyahoga County joined Stark in deciding not to implement the program until next summer. “The state’s offer of resources is completely inadequate to the demands that it will put on our local jails and our systems,” Armond Budish, the Cuyahoga County executive, said in a news release....

Under the program, offenders convicted of fifth-degree felonies, the lowest felony level, are not to be sentenced to prison unless they’ve committed a violent offense, a sex crime or a drug-trafficking offense.  The state correction department estimated that 4,000 such offenders were sent to prison last year.  If a participating county sends someone to prison in violation of the criteria, their grant money will be docked $72 a day for each day the offender is held in a state facility.

Clinton County Common Pleas Judge John W. “Tim” Rudduck has been participating since October in a pilot program to test the concept and is a vocal supporter of its benefits. “I’m looking at it from the perspective of a single judge in a semi-rural county with limited resources,” he said.  “The money we have received has been instrumental in developing resources (to support alternatives to prison) that we never had before.”  Before the program was implemented, some offenders were going to prison simply because Clinton County didn’t have the resources to treat or supervise them in the community, he said.

The program is voluntary for 78 counties. So far, 48 counties have agreed to implement the program....  A system in which some Ohio counties follow the program and other don’t is “patently unconstitutional,” said Franklin County Prosecutor Ron O’Brien.  The Ohio Constitution, he said, requires “uniform operation” of all laws.  That concept is violated when a defendant receives a prison sentence in one county for an offense for which he would be prohibited from receiving prison in another.

Those “equal protection” concerns are almost certain to lead to legal challenges for the program, said Paul Pfeifer, executive director of the Ohio Judicial Conference.  “I’d fully expect a test case to be filed on that issue,” said Pfeifer, a former state Supreme Court justice and state senator.  His organization, which represents all judges in Ohio, has expressed concerns about the program, but wants to work with judges to make its implementation as smooth as possible now that it’s the law, he said.

September 18, 2017 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Saturday, September 16, 2017

"Criminalizing Race: Racial Disparities in Plea Bargaining"

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

Most of the empirical research examining racial disparities in the criminal justice system has focused on its two endpoints — the arrest and initial charging of defendants and judges’ sentencing decisions.  Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that often constraint judges’ ultimate sentencing discretion.  This article addresses this gap by examining racial disparities in the plea-bargaining process, focusing on the period between the initial filing of charges and the defendant’s conviction.

The results presented in this article reveal significant racial disparities in this stage of the criminal justice system. White defendants are twenty-five percent more likely than black defendants to have their principal initial charge dropped or reduced to a lesser crime.  As a result, white defendants who face initial felony charges are less likely than black defendants to be convicted of a felony.  Similarly, white defendants initially charged with misdemeanors are more likely than black defendants to be convicted for crimes carrying no possible incarceration or not being convicted at all.

Racial disparities in plea-bargaining outcomes are greater in cases involving misdemeanors and low-level felonies. In cases involving severe felonies, black and white defendants achieve similar outcomes.  Defendants’ criminal histories also play a key role in mediating racial disparities.  While white defendants with no prior convictions receive charge reductions more often than black defendants with no prior convictions, white and black defendants with prior convictions are afforded similar treatment by prosecutors.  These patterns in racial disparities suggest that prosecutors may be using race as a proxy for a defendant’s latent criminality and likelihood to recidivate.

September 16, 2017 in Data on sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Wednesday, September 13, 2017

In sentencing filing, Anthony Weiner asks for probation and community service after guilty plea to transferring obscene material to a minor

As reported in this new Bloomberg piece, "Anthony Weiner, the former congressman and New York mayoral candidate whose career and personal life were wrecked in a series of sexting scandals, asked a judge for leniency when he’s sentenced later this month." Here is more about his sentencing filing and what prompts it:

Weiner pleaded guilty in May to sending sexually explicit messages to a 15-year-old girl, admitting to a single criminal count of transmitting obscene material to a minor. The guilty plea capped a stunning downfall that played a major role in the final days of the 2016 presidential election.

In a court filing late Wednesday, Weiner asked for probation and community service.  “In sum, a term of imprisonment would bring Anthony’s indisputably successful treatment for the sickness underlying his crime to an immediate and complete halt, and separate Anthony from the son who has motivated his recovery,” his attorneys wrote in the sentencing memo.

“Given the unusual circumstances of this offense and the ability of a sentence without incarceration to impose just and meaningful punishment while permitting continued treatment, a non-incarceratory sentence of the kind proposed above would be ‘sufficient but not greater than necessary’ to satisfy the goals of sentencing.”

Weiner faces as much as 10 years in prison when he’s sentenced Sept. 25. As part of a plea deal, prosecutors will seek a term of 21 months to 27 months, which isn’t binding on the sentencing judge. Weiner must register as a sex offender and will forfeit his iPhone. An FBI investigation into Weiner’s sexually explicit messages turned up emails that had been sent to his wife, Huma Abedin, then a top aide to Democratic presidential candidate Hillary Clinton....

Weiner “has already been punished in a meaningful way by the government, just not in a judicially sanctioned manner,” his lawyers wrote in the memo.  “What was supposed to be a confidential grand jury investigation into a personal offense was leaked by ‘law enforcement sources’ and then improperly injected into the presidential election by the then-FBI director.”

Prior related post:

September 13, 2017 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (5)

"Brock Turner: Sorting Through the Noise"

The title of this post is the title of this notable paper recent posted to SSRN authored by Michael Vitiello. Here is the abstract:

This article begins with a quick test. The author asks his readers to spend a few moments reacting to “Brock Turner.” In response, no doubt, many think, “Stanford rapist,” “white privilege,” “special treatment for an elite college athlete,” and perhaps, “illegal sentence."  Certainly, that reaction is not surprising, given racial bias in sentencing and special treatment for elite college athletes.

The public response to Judge Aaron Persky’s sentence was quite negative even before Stanford Law Professor Michele Landis Dauber, a family friend of the victim, began a recall effort. The recall efforts have kept the case in the public’s eye.  While some members of the public and profession have spoken out against the recall, it seems to be on pace to get on the ballot in the fall of this year.

As troubling as Turner’s sentence is for many observers, issues posed by a judicial recall are quite distinct.  The article challenges the media for its role in inflaming public opinion about the case.  While the sentence seems far too short in light of Turner’s conduct, an examination of California sentencing criteria, as well as the probation report that Judge Persky relied on in determining Turner’s sentence, makes the case more complicated than widely reported in the media.  Even assuming that one disagrees with Judge Persky’s sentence, the article argues that California has led the nation in over reliance on long prison sentences, the result of all-too-familiar-get-tough-on-crime rhetoric. That has led the state to spend unnecessary billions of dollars warehousing offenders who do not represent a serious public safety risk.  The article concludes that judicial recall will result in unnecessary additional years of imprisonment for criminal defendants because judges, consciously or unconsciously, may fear for their livelihood if vocal members of the public deem their sentences too lenient.

September 13, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14)

Monday, September 11, 2017

Can a federal sentence really "be close to absurd" and yet also be affirmed as reasonable?

The peculiar and perhaps metaphysical question in the title of this post is prompted by a Second Circuit panel decision today in US v. Jones, No. 15‐1518 (2d Cir. Sept. 11, 2017) (available here). The Jones case get intricate thanks to the timing and uncertainties of criminal history litigation. The start of the panel opinion provides a flavor of the mess:

Defendant Corey Jones appeals from a sentence entered in the United States District Court for the Eastern District of New York (Garaufis, J.) following a jury trial conviction for assaulting a federal officer in violation of 18 U.S.C. § 111. He was sentenced as a career offender principally to 180 months in prison to be followed by three years of supervised release.  The primary basis for Jones’ appeal is that, in light of the Supreme Court’s holding in Johnson v. United States, 559 U.S. 133 (2010) (Johnson I), New York first‐degree robbery is no longer categorically a crime of violence under the force clause of the Career Offender Guideline, U.S.S.G. §§ 4B1.1 and 4B1.2, and that the district court therefore erred in concluding that his prior conviction for first‐degree robbery would automatically serve as one of the predicate offenses for a career offender designation.

After oral argument in this matter, the Supreme Court decided Beckles v. United States, 137 S. Ct. 886 (2017), which held that the residual clause of the Career Offender Guideline — a second basis for finding a crime of violence — was not unconstitutional.  The Court reached this conclusion notwithstanding the government’s concession to the contrary in cases around the country that the residual clause, like the identically worded provision of the Armed Career Criminal Act (“ACCA”), was void for vagueness. In light of Beckles, we find that New York first‐degree robbery categorically qualifies as a crime of violence under the residual clause and therefore need not address Jones’ argument based on the force clause. We also find that his sentence is substantively reasonable and therefore AFFIRM the sentence imposed by the district court.

Judge Calabresi (my former boss) authors a separate concurring opinion in which he explains the various factors and fortuities which he thinks requires an affirmance of a sentence that seems technically sound by infused with problems of timing and equity. I cannot briefly recount he are the curious particulars, but this sentence captures Judge Calabresi's obvious frustration:

What is more — and this may be the true source of my sense of absurdity — there appears to be no way in which we can ask the district court to reconsider the sentence it ordered in view of the happenstances that have worked against Jones, and in view of its assessment of Jones’ crimes and of its downward departure.

For what it is worth, I think reasonableness review can and should be a very flexible and robust means for circuit courts to require resentencing whenever it has a basis for being concerned, procedurally or substantively, with any aspects of the proceedings below in light of the sentencing commands of 3553(a). Consequently, I think the Second Circuit could have said simply that "happenstances that have worked against Jones" since the time of his initial sentencing cast new light on the 3553(a) factors and thus his sentence is procedurally unreasonable and he should be resentenced.

September 11, 2017 in Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Sunday, September 10, 2017

Notable data on marijuana case processing after Brooklyn DA pledge to limit prosecutions

Marijuana-cases-chart-07This WNYC piece provides some interesting data about local marijuana prosecutions in a part of NYC.  The piece's headline provides the essential highlights: "Brooklyn DA's Pledge to Reduce Marijuana Prosecutions Makes Little Difference." And here are some of the details:

In 2014, Brooklyn’s new District Attorney Ken Thompson made national headlines when he said his office would decline to prosecute low-level marijuana cases, so long as the defendant had no serious criminal record and wasn’t selling the drug.

Noting that two-thirds of these misdemeanor cases wind up being dismissed, Thompson said they did nothing to promote safety and wound up hurting people of color, in particular. “In 2012, over 12,000 people in Brooklyn were arrested for possessing small amounts of marijuana,” he said, during his inauguration. “Mostly young black men.”

Thompson died of cancer last autumn. He was replaced (at his own request) by his first deputy, Eric Gonzalez, who continued the marijuana policy. But according to WNYC’s analysis, this supposedly groundbreaking change had less impact than many expected.

Using data from the state’s Division of Criminal Justice Services, WNYC found the Brooklyn DA was only slightly less likely to prosecute people for marijuana possession after Thompson took office in 2014. In 2010, almost 90 percent of arrests were prosecuted. That figure fell to almost 78 percent in 2014, and in 2016 roughly 82 percent of arrests were prosecuted. In other words, most people are still going to court because the Brooklyn DA only throws out about one out of every five low-level marijuana arrests.

“I expected to see the number to be higher,” said Kassandra Frederique, New York State director of the Drug Policy Alliance, which supports marijuana legalization.

WNYC also found racial disparities among those who benefited most from the DA’s policy. Last year, the Brooklyn DA declined to prosecute fewer than 20 percent of misdemeanor marijuana arrests involving blacks and Latinos. By contrast, that figure was more than 30 percent for whites and Asians.

Marijuana-cases-chart-08Scott Hechinger, a senior staff attorney at Brooklyn Defender Services, which represents low-income people, said he wasn’t surprised by any of this. “It still felt like the people who we were meeting were predominantly black and brown,” he said, when asked what changed after 2014. “And it still felt like an enormous waste of time, energy and money.”...

Gonzalez, the acting district attorney, has a theory for why most defendants are still prosecuted, like Iglesias. “One of the things about our marijuana policy was that it was limited to possession cases,” he explained in an interview with WNYC. “What we think may be happening is that a lot of these arrests is public smoking of marijuana.”

In other words, the district attorney's office still prosecutes those caught puffing a joint in a public place. That’s something many people didn’t fully grasp in 2014 when Thompson announced the policy change.

Both smoking and possession are classified by the state as the same misdemeanor (criminal possession in the fifth degree), the most common low-level charge. There was no way to separate smoking from mere possession from the data provided WNYC. (Several people WNYC interviewed at Brooklyn Criminal Court said they were arrested for smoking in public, including a 17-year-old boy who claimed the police nabbed him in a case of mistaken identity. All of the defendants we met were black or Latino and young.)

Gonzalez, who is running to hold onto his position this fall, said he was troubled by WNYC's finding that blacks and Latinos are more likely to be prosecuted. “I am committed to making sure my office does not contribute to racial disparities," he said. "If it takes me to be more aggressive in declining to prosecute more cases I’m willing to do that."...

Public defenders and legalization advocates now say there is only one way to correct the racial imbalance. They want the DA to stop prosecuting all marijuana cases. “This goes to a deeper need for us to talk institutionally about how the systems work for certain groups of people,” said Frederique.

But Gonzalez, the acting DA, argued that his policy is achieving positive results. Brooklyn declines to prosecute a greater share of cases than any other borough. He also said the DA’s policy put more pressure on the NYPD to make fewer arrests. Almost 17,000 people were arrested for low level marijuana possession in 2010. That number fell to 4,300 in 2016. “We’ve moved a long way,” he stated. “I’m committed to continuing to look at this issue and figuring out, can we have a system in which no one gets arrested for marijuana use where there’s no public safety value?”

Normally I would flag a story focused on marijuana over at my Marijuana Law, Policy & Reform blog, but the case-processing and prosecutorial discretion issues raised here are surely of interest to sentencing fans.  And this post also provides an excuse to review some recent posts of note from MLP&R:

September 10, 2017 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Friday, September 08, 2017

Highlighting through St. Louis the enduring challenges of battling city crime with federal emphasis

Mark Obbie has this terrific lengthy new piece in Politico Magazine with full headline that captures its key themes: "Why Jeff Sessions’ Recycled Crime-Fighting Strategy Is Doomed to Fail: Funneling more gun criminals into federal prison won't reduce homicides. Just look at St. Louis." The article merits a full read, and here are its opening passages:

Newly minted Attorney General Jeff Sessions was in St. Louis, the latest stop on his tour to promote his muscular solution to what he called the “dangerous new trend” of the rising national violent crime rate.  Addressing a crowd of more than 200 federal and local law enforcement officials at the city’s towering federal courthouse in late March, he vowed to “use every lawful tool we have to get the most dangerous offenders off America’s streets.”

The Trump Justice Department has pushed a variety of strategies for reducing violent crime.  But the tool that Sessions prefers, the one he calls the “excellent model,” is to steer more gun-crime cases to federal court, where offenders face an average of six years in prison, compared with the lighter punishments that can result from state convictions — in Missouri, for instance, gun offenders charged under state laws generally get probation.  Sessions has instructed his U.S. attorneys to step up their gun-case loads, and they are heeding his mandate: In the second quarter of this year, federal firearms prosecutions jumped 23 percent over the same period in 2016.

In his St. Louis speech, Sessions praised the city’s U.S. attorney’s office for its aggressive pursuit of gun-law violators, framing its work as the first half of a tidy formula. “The more of them we put in jail,” he said, “the fewer murders we will have.”

But Sessions is dramatically overselling the effectiveness of his prosecution-heavy prescription, those who study gun violence say.  Researchers, in fact, long ago concluded that the long prison sentences and elevated incarceration rates that result from increasing federal prosecutions have scant influence on violent crime rates.  And St. Louis is a signal example of why Sessions’ strategy does not work as he promises.

No other city has already tried harder and longer to do exactly what Sessions is pushing for nationwide.  Since the 1990s, the St. Louis-based Eastern District of Missouri has remained in the top 10 federal court districts for per capita gun prosecution rates, according to data from Syracuse University’s Transactional Records Access Clearinghouse (TRAC).  In more recent years, the St. Louis office has only increased its intake of gun cases, leading the nation in 2016.

At the same time, St. Louis’ rates of homicide and serious crimes of all types are the worst in the country, and have been stuck at or near the top of that dubious list for at least 20 years.  The city recorded 188 homicides in each of the past two years — a two-decade high.  During the first six months of 2017, murders kept pace with those brutal levels. Nonfatal shootings were up an alarming 22 percent.

If St. Louis shows why Sessions’ approach to gun violence is destined to fail, what is a more effective role for federal authorities to play in reducing violent crime?  Public safety scholars say that it starts with recognizing that no two cities’ crime problems are exactly alike.  The next step is to create a menu of interventions tailored to meet local needs — and support them with reliable funding.

September 8, 2017 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, September 06, 2017

Encouraging new Brennan Center data on 2017 crime trends ... let the spinning begin

The Brennan Center for Justice has this notable new report titled simply "Crime in 2017: A Preliminary Analysis," and its first section starts this way: 

Based on new data collected from police departments in the 30 largest cities, this report finds that all measures of crime — overall crime, violent crime, and murder — are projected to decline in 2017. Indicators show that 2017 will have the second lowest rates of crime and violent crime since 1990.

These findings directly undercut any claim that the nation is experiencing a crime wave. In 2015 and 2016, overall crime rates remained stable, while murder and violent crime rose slightly. Now, in 2017, crime and murder are projected to decline again. This report’s main findings are explained below, and detailed in Figure 1, and in Tables 1 and 2:

• The overall crime rate in 2017 is projected to decrease slightly, by 1.8 percent. If this estimate holds, as it has in past analyses, 2017 will have the second lowest crime rate since 1990.

• The violent crime rate is projected to decrease slightly, by 0.6 percent, essentially remaining stable. This result is driven primarily by stabilization in Chicago and declines in Washington, D.C., two large cities that experienced increases in violence in recent years. The violent crime rate for this year is projected to be the second lowest since 1990 — about one percent above 2014’s violent crime rate.

• The 2017 murder rate is projected to be 2.5 percent lower than last year.  This year’s decline is driven primarily by decreases in Detroit (down 25.6 percent), Houston (down 20.5 percent), and New York (down 19.1 percent).  Chicago’s murder rate is also projected to fall, by 2.4 percent.  The 2017 murder rate is expected to be on par with that of 2009, well at the bottom of the historic post-1990 decline, yet still higher than the lowest recorded rate in 2013.  Notably, more than half the murder increase from 2014 to 2017 (55.6 percent) is attributable to two cities — Chicago and Baltimore.  This year’s decrease could indicate that the increases in 2015 and 2016 were short-term fluctuations in a longer-term downward trend.

• While crime is down this year, some cities are projected to experience localized increases. For example, Charlotte’s murder rate doubled in the first six months of 2017 relative to last year.

Before even starting to spin this new data, it bears emphasis that there could be developments in the last four months of 2017 that alter this prediction that crime will decline for the year.  But assuming these encouraging new crime numbers hold upon further developments and analysis, it will be interesting to watch different advocates making different claims about what a return to declining crimes means. I would certainly expect Prez Trump and AG Sessions to assert that their reversal of a variety of Obama era policies and practices is already having a positive impact, while advocates for progressive "smart on crime" reforms will surely claim that this data shows we can and should be able to continue to reduce prison populations and reduce crime at the same time.

Critically, whatever gets spun, these data are a cause for celebration and everyone should be rooting for the numbers to continue to trend in a positive direction in the months and years ahead.

September 6, 2017 in National and State Crime Data, Offense Characteristics | Permalink | Comments (7)

Tuesday, September 05, 2017

A deep look at "tough on crime" responses to the opioid epidemic

German Lopez has this lengthy important new Vox piece under the headlined "The new war on drugs: Not every state is responding to the opioid epidemic with just public health policies." I recommend the piece in full, and this excerpt highlights its themes:

There has been much discussion of criminal justice reform in the past several years. And there has been a lot of talk about treating the opioid epidemic — the deadliest overdose crisis in US history — as a public health, not criminal justice, issue, unlike past drug crises. The cliché about the crisis, said by both Democrats and Republicans, is that “we can’t arrest our way out of the problem.”

Yet the rhetoric doesn’t tell the whole story. In my own investigation, I found at least 13 states, including Kentucky, that passed laws in recent years that stiffened penalties for opioids painkillers, heroin, or fentanyl — largely in response to the epidemic.  In sharp contrast to all the talk about criminal justice reform and public health, these laws risk sending even low-level, nonviolent drug offenders — many of whom are addicted to drugs and need help for that addiction — to prison for years or decades.

The facts show that the conventional narrative about the opioid epidemic and criminal justice reform is incomplete. Most states — including many of the states I found that passed new “tough on crime” laws in response to the opioid epidemic — have passed criminal justice reform at some level in the past several years.  And the rhetoric about drugs has undeniably changed a lot in recent years across both political parties.

But as the opioid epidemic continues to kill tens of thousands of people in the US each year, many state lawmakers have gone back to the old criminal justice playbook to fight the crisis — even as the empirical evidence remains clear that tougher prison sentences are not an effective means to stopping the epidemic.  The new laws are just one example.  Several states have also dusted off old laws to lock up more opioid users and dealers.

And that shows that for all the talk about reform, America’s instincts for the “tough on crime” approach are still very much here.

September 5, 2017 in Drug Offense Sentencing, Offense Characteristics, Who Sentences? | Permalink | Comments (1)

US Sentencing Commission releases big new analysis of Prez Obama's 2014 Clemency Initiative

I am excited to see that the US Sentencing Commission has this morning released this big new report titled simply "An Analysis of the Implementation of the 2014 Clemency Initiative." I hope to find the time in the coming days to dig into many of the report's particulars; for now, I can just reprint the text of this USSC overview page about the report and add a few comments:

Report Summary

This report analyzes the sentence commutations granted under the 2014 Clemency Initiative.  It provides data concerning the offenders who received a sentence commutation under the initiative and the offenses for which they were incarcerated.  It examines the extent of the sentence reductions resulting from the commutations and the conditions placed on commutations.  It also provides an analysis of the extent to which these offenders appear to have met the announced criteria for the initiative.  Finally, it provides an analysis of the number of offenders incarcerated at the time the initiative was announced who appear to have met the eligibility criteria for the initiative and the number of those offenders who received a sentence commutation.

Key Findings

The key findings of this report are:

  • President Obama made 1,928 grants of clemency during his presidency.  Of them, 1,716 were commutations of sentence, more commutations than any other President has granted.

  • Of the 1,928 grants of clemency that President Obama made, 1,696 were sentence commutations under the 2014 Clemency Initiative.

  • The commutations in sentence granted through the Clemency Initiative resulted in an average sentence reduction of 39.0 percent, or approximately 140 months.

  • Of the 1,696 offenders who received a commuted sentence under the Clemency Initiative, 86 (5.1%) met all the announced Clemency Initiative factors for consideration.

  • On April 24, 2014, there were 1,025 drug trafficking offenders incarcerated in the Federal Bureau of Prisons who appeared to meet all the announced Clemency Initiative factors.  Of them, 54 (5.3%) received clemency from President Obama.

  • By January 19, 2017, there were 2,687 drug trafficking offenders who had been incarcerated in the Federal Bureau of Prisons when the Clemency Initiative was announced and who appeared to meet all the announced Clemency Initiative factors. Of them, 92 (3.4%) received clemency from President Obama.

Back in 2014 when the clemency initiative was announced and certain criteria emphasized (basics here), I had an inkling that the criteria would end up both over-inclusive and under-inclusive. I figured Prez Obama would ultimately not want to grant clemency to everyone who met the criteria announced and also would want to grant clemency to some who did not meet all the criteria. That said, I am still surprised that only 5% of those prisoners who got clemency meet all the criteria and that only about 5% of those prisoners who met all the criteria get clemency. (Based on a quick scan of the USSC report, it seems the vast majority of those who got clemency had some criminal history, which put most of the recipients outside the stated DOJ criteria.)

These additional insights and data points from the USSC report highlight what really seemed to move a clemency applicant toward the front of the line:

A review of the offenders granted clemency under the Initiative shows that at some point the Clemency Initiative was limited to drug trafficking offenders, as all the offenders who received commutations under the Initiative had committed a drug trafficking offense.  This focus was not identified when the Initiative was announced and no formal public announcement was made later that the Initiative had been limited to drug trafficking offenders....

Almost all Clemency Initiative offenders (95.3%) had been convicted of an offense carrying a mandatory minimum penalty.  Most (89.7%) were charged in such a way that the mandatory minimum penalty that applied in the case was ten years or longer.  Indeed, most of the Clemency Initiative offenders (88.2%) received a sentence of 20 years or longer, or life imprisonment.

In the end, then, it appears the 2014 Clemency Initiative turned out to be almost exclusively about identifying and reducing some sentences of some federal drug offenders subject to long mandatory prison terms. Somewhat disappointingly, this USSC report does not appear to speak to whether and how offenders who received clemency were distinct from the general federal prison population in case processing terms. My own rough research suggests that a great disproportion of those who got clemency were subject to extreme mandatory minimums because they opted to put the government to its burden of proof at trial rather than accept a plea deal. Also, if the goal ultimately was to remedy the worst applications of mandatory minimum sentences, it is not surprising that a lot of clemency recipients had some criminal history that would serve to both enhance the applicable mandatory minimum AND make an otherwise lower-level offender not eligible for statutory safety-valve relief from the mandatory term.

September 5, 2017 in Clemency and Pardons, Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Tuesday, August 29, 2017

Third Circuit panel rejects various challenges to severe stash-house sting sentence

A helpful reader made sure that I did not miss yesterday's dynamic discussion by a Third Circuit panel of a set of defense challenges to yet another severe sentence resulting from a stash-house sting.  The start of the majority opinion in US v. Washington, No. 16-2795 (3d Cir. Aug. 28, 2017) (available here), highlights why these cases are so notable:

Defendant-appellant Askia Washington was ensnared by a “stash house reverse sting” operation — one which hit many of the by-now-familiar beats.  Acting on what appeared to be insider information from a drug courier, Washington and his three co-conspirators planned to rob a Philadelphia property where they thought 10 kilograms of cocaine were being stored for distribution.  But as they discovered on the day of the robbery, the “stash house” was a trap set by law enforcement.  Their “courier” was an undercover federal agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), which had developed the scenario from the ground up.  The cocaine did not exist.

Under federal law on conspiracy and attempt, the government could, and did, prosecute the crew as if fantasy had been reality.  Washington, the sole member to take his chances at trial, was convicted by a jury of two Hobbs Act robbery charges and two drug charges (18 U.S.C. § 1951(a) and 21 U.S.C. § 846), although he was acquitted on a gun charge.

Developed by the ATF in the 1980s to combat a rise in professional robbery crews targeting stash houses, reverse sting operations have grown increasingly controversial over the years, even as they have grown safer and more refined.  For one, they empower law enforcement to craft offenses out of whole cloth, often corresponding to statutory offense thresholds.  Here, the entirely fictitious 10 kilograms of cocaine triggered a very real 20-year mandatory minimum for Washington, contributing to a total sentence of 264 months in prison — far more than even the ringleader of the conspiracy received.  For another, and as Washington claimed on multiple occasions before the District Court — and now again on appeal — people of color are allegedly swept up in the stings in disproportionate numbers.

These elements of controversy are bound up in the three claims Washington now raises on appeal.  Two are constitutional claims: Washington challenges his conviction and sentence by arguing that the use of the statutory mandatory minimum term violated his rights to due process, and he also alleges that the attorney who represented him at trial rendered constitutionally ineffective assistance.  While stash-house reverse stings can raise constitutional concerns, the use of a mandatory minimum sentence on these particular facts did not deprive Washington of his right to due process.  And while this is the rare case where a claim of ineffective assistance of counsel was properly raised on direct appeal instead of through a collateral attack, Washington has not shown prejudice sufficient to call into doubt the integrity of his trial.  We thus conclude that both constitutional claims are without merit.

A lengthy and nuanced discussion by the majority follows, and largely concludes that the stash-house sting in this case was, in essence, "good enough for government work."  Judge McKee penned a lengthy partial dissent focused on sentencing issues that has a conclusion including these paragraphs:

This case is the latest illustration of why federal courts across the country continue to find the government’s reliance on phony stash-house sting operations disturbing.  As I have explained, these cases raise serious issues of fairness while destroying the fundamental relationship between culpability and punishment that is so important to sentencing.  The conduct being sanctioned is the direct result of the government’s initiative rather than the defendant’s.

I reiterate that it is exceedingly difficult to conclude that Congress ever considered that mandatory minimum sentences would apply here.  Nevertheless, it just may be that the ultimate systematic resolution of this very troublesome approach to sentencing will have to await clarification by Congress, the Sentencing Commission,or the U.S. Supreme Court.  Meanwhile, it is worth echoing my colleagues’ caution: The Government’s success today should not be interpreted as a clue that “all such prosecutions will share the same fate” in the future.

August 29, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Thursday, August 17, 2017

US Sentencing Commission finalizes policy priorities and publishes notable holdover amendments

As reported in this press release, the US Sentencing Commission "today approved its final policy priorities for the upcoming amendment year ending May 1, 2018, which includes an examination of the overall structure of the guidelines and a continuation of its work on synthetic drugs [and] voted to publish several holdover proposals from the previous amendment cycle."  Here is more:

During the upcoming amendment year, the Commission will continue to explore approaches to simplify and strengthen the guidelines. “On this thirtieth year of the federal sentencing guidelines system, the Commission welcomes the opportunity to work with the Congress, the Courts, the Department of Justice, and other stakeholders to find ways to promote certainty and proportionality in sentencing while reducing the complexity of the guidelines,” stated Circuit Judge William H. Pryor, Jr., acting chair of the Commission.

The Commission will also continue its two-year study of synthetic drugs. In April, the Commission held a public hearing to receive testimony on the prevalence and effect of synthetic drugs. The Commission has since commenced a study of specific categories of synthetic drugs, including fentanyl. The Commission will research their chemical structure, pharmacological effects, potential for addiction, legislative and scheduling history, and other relevant issues. The study is intended to provide a meaningful distinction between categories of synthetic drugs so that closely related substances are more easily determined in the guidelines....

Stemming from the Commission’s research on youthful offenders as well as recommendations made by the Tribal Issues Advisory Group (TIAG) in its May 2016 report, the Commission will also continue to study how juvenile sentences are considered in the calculation of the defendant’s criminal history score.

Other priorities include continued work on mandatory minimum penalties. Following the release of the 2017 Mandatory Minimum Overview in July, which built on the Commission’s 2011 report, the Commission will release additional reports highlighting the impact of mandatory minimum penalties for certain offense categories. The Commission will also continue to work with Congress to adopt a uniform definition of “crime of violence” included in recommendations set forth in the 2016 Report to the Congress on Career Offender Sentencing Enhancements.

The Commission also published today several proposed guideline amendments from the previous amendment cycle and as an extension of its current policy priority work. “Today’s proposed amendments are a continuation of our work during the previous amendment year. These holdover proposals were not voted on last year due to the lack of a quorum during the deliberation process. Publishing today gives this reconstituted Commission an opportunity to carefully review these proposals and consider them as early as possible in the current amendment cycle,” stated Judge Pryor.

Among the proposed amendments published today are changes that would increase the number of federal offenders eligible for alternatives to incarceration. Informed by the Commission’s multi-year study on recidivism, one of the proposed amendments would add a downward adjustment to the guidelines for first offenders.

August 17, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (3)

Police groups supportive, but prosecutor objects, to new Oregon law shifting drug possession offenses down from felony to misdemeanor

This AP piece, headlined "Oregon makes drug possession a misdemeanor," reports on the notable criminal justice reform signed into law this week in the Beaver State. I found especially interesting the diverse views on the legal charge expressed by police groups and at least one prosecutor. Here are the particulars: 

A bill signed by Oregon Gov. Kate Brown on Tuesday makes personal-use possession of cocaine, heroin, methamphetamine and other drugs a misdemeanor, not a felony. Oregon joined just a handful of other U.S. states in defelonizing drugs under the new law, which was supported by law enforcement groups and takes effect immediately.

Jo Meza, owner of Amazing Treatment, a rehab center in Salem, applauded the move. She has seen the damage caused by drug addiction in her 30 years in the field. “There’s a huge crisis out there, and locking people up is not going to work,” Meza said....

Among the bill’s supporters were the Oregon Association Chiefs of Police and the Oregon State Sheriffs’ Association, which said felony convictions include unintended consequences, including barriers to housing and employment.  But the two groups, in a letter to a state senator who backed the bill, said the new law “will only produce positive results if additional drug treatment resources accompany this change in policy.”

“Reducing penalties without aggressively addressing underlying addiction is unlikely to help those who need it most,” the groups warned.  Another measure appropriated $7 million that can be used to pay for drug treatment.

Linn County District Attorney Doug Marteeny had tried to convince lawmakers to dump the defelonization of dangerous drugs from the bill, which also targets police profiling.  “To change the classification of this behavior from a felony to a misdemeanor is tantamount to telling our schoolchildren that tomorrow it will be less dangerous to use methamphetamine than it is today,” he wrote.

Those who have a prior felony conviction won’t be afforded misdemeanor consideration, nor will people who have two or more prior drug convictions or possess more than user amounts.

August 17, 2017 in Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1)

Tuesday, August 15, 2017

Two notable new commentaries on how we define violent offenders and what to do with them

My twitter feed yesterday was filled with links to these two notable new commentaries about violent offenders that are both worth the time to read in full:

Here is how Balko's piece wraps up:

[P]aroling more people convicted of violent crimes will inevitably, at some point, somewhere down the line, produce a repeat offender.  The data overwhelmingly suggest that such incidents will be rare enough to be drastically overwhelmed by the benefits of a more generous and forgiving parole policy.  But those rare incidents will be easy to exploit. Advocates should be prepared for them.

In the end, this is a question of what sort of society we want to be. We can be a punitive society that believes in retribution, no matter the costs.  We can be a society that believes in redemption, regardless of cost.  Or we can be a society of people who strive for a rational, data-driven system that will never be perfect, but that will strive to protect us from truly dangerous people while also recognizing that, as the attorney and activist Bryan Stevenson puts it, “each of us is more than the worst thing we’ve ever done.”

August 15, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (9)

Monday, August 14, 2017

More notable talk by Prez Trump about possible use of his pardon authority

As noted in this post from a few weeks ago, Prez Trump earlier this summer got more than a few media members and academic talking about the historic presidential clemency authority when he reportedly starting asking about his whether he could pardon folks potential caught up in the on-going Russia investigation.  Today brings more summer pardon talk from Prez Trump, but with a notably different (though also controversial) target.  This Fox News piece, headlined "Trump 'seriously considering' a pardon for ex-Sheriff Joe Arpaio," provides the details:

President Trump may soon issue a pardon for Joe Arpaio, the colorful former Arizona sheriff who was found guilty two weeks ago of criminal contempt for defying a state judge’s order to stop traffic patrols targeting suspected undocumented immigrants.  In his final years as Maricopa County sheriff, Arpaio had emerged as a leading opponent of illegal immigration.

“I am seriously considering a pardon for Sheriff Arpaio,” the president said Sunday, during a conversation with Fox News at his club in Bedminster, N.J. “He has done a lot in the fight against illegal immigration.  He’s a great American patriot and I hate to see what has happened to him.”  Trump said the pardon could happen in the next few days, should he decide to do so.

Arpaio, 85, was convicted by U.S. District Judge Susan Bolton of misdemeanor contempt of court for willfully disregarding an Arizona judge’s order in 2011 to stop the anti-immigrant traffic patrols. Arpaio had maintained the law enforcement patrols for 17 months thereafter.  The man who built a controversial national reputation as “America’s toughest sheriff” admitted he prolonged his patrols, but insisted he did not intend to break the law because one of his former attorneys did not explain to him the full measure of restrictions contained in the court order.

He is expected to be sentenced on Oct. 5 and could face up to six months in jail.  However, since he is 85 years old and has no prior convictions, some attorneys doubt he will receive any jail time.

Citing his long service as “an outstanding sheriff,” the president said Arpaio is admired by many Arizona citizens who respected his tough-on-crime approach.  Arpaio’s widely publicized tactics included forcing inmates to wear pink underwear and housing them in desert tent camps where temperatures often climbed well past 100 degrees Fahrenheit.  He also controversially brought back chain gains, including a voluntary chain gang for women prisoners.

Civil liberties and prisoner advocates as well as supporters of immigrants’ rights have criticized Arpaio for years, culminating in his prosecution.  He lost his bid for reelection last year. “Is there anyone in local law enforcement who has done more to crack down on illegal immigration than Sheriff Joe?” asked Trump. “He has protected people from crimes and saved lives.  He doesn’t deserve to be treated this way.”

Stopping the flow of undocumented immigrants across the southern U.S. border was a central theme of the president’s campaign. Arpaio endorsed Trump in January 2016. Trump indicated he may move quickly should he decide to issue a presidential pardon. “I might do it right away, maybe early this week. I am seriously thinking about it.”

Trump could decide to await the outcome of an appeal by Arpaio’s lawyers who contend their client’s case should have been decided by a jury, not a judge.  In a statement after the verdict, his attorneys stated, “The judge’s verdict is contrary to what every single witness testified in the case.  Arpaio believes that a jury would have found in his favor, and that it will.”

Reached Monday for reaction to the possible pardon, Arpaio expressed surprise that Trump was aware of his legal predicament. “I am happy he understands the case,” he told Fox News. “I would accept the pardon because I am 100 percent not guilty.”  The former sheriff said he will continue to be a strong supporter of the president regardless of whether he receives a pardon.  But he also voiced concern that a pardon might cause problems for Trump, saying, “I would never ask him for a pardon, especially if it causes heat. I don’t want to do anything that would hurt the president.”

Trump has not granted any pardons so far in his presidency.

While I was putting this post together, I received an email with a link to this ACLU comment on a possible Arpaio pardon.  The comment closes with these notably sharp statements:

ACLU Deputy Legal Director Cecillia Wang had this reaction to media reports that Trump may pardon Arpaio: “President Trump would be literally pardoning Joe Arpaio’s flagrant violation of federal court orders that prohibited the illegal detention of Latinos.  He would undo a conviction secured by his own career attorneys at the Justice Department.  Make no mistake: This would be an official presidential endorsement of racism.”

August 14, 2017 in Celebrity sentencings, Clemency and Pardons, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (8)

Tuesday, August 08, 2017

Horrible abuse and female defendant's demeanor lead Arizona jury to send child murderer to death row

Because so relatively few women are sent to death row, it is always noteworthy when a female defendant is sentenced to death.  And I found this local article from Arizona, headlined "Jurors: Sammantha Allen lacked remorse," a particularly notable account of what prompted an Arizona jury to vote to send a woman to death row yesterday for her role in the killing of a child.  Here are details:

Sammantha Allen dropped her head and burst into tears moments after jurors announced their verdict in the penalty phase of the woman's trial: death. "She didn't care what happened to this child," said Amanda Keagh, a juror in the trial. "It was all about what was going to happen to her."

This marks the end of one more chapter in the horrific 2011 murder of 10-year-old Ame Deal, whose lifeless body was found locked inside a plastic footlocker left out in the blazing Arizona heat. Police said the girl was forced into the box as punishment for stealing a popsicle. Allen, along with her husband John, were charged in the girl's murder. The woman was convicted of first-degree murder on June 26 and arguments over whether she would be sentenced to death lasted several weeks.

Jurors outside the courtroom said they maintained an open mind throughout the penalty phase of the trial, but ultimately pointed to Allen's demeanor inside the courtroom as a major factor in their decision. "So I think that was a pivotal moment for me," Keagh said. "I was waiting for something from her. That was her chance to plead for her life and it just fell short."

The defense team argued Allen's actions were a result of a dysfunctional childhood and family life that was heavily influenced by Allen's mother and grandmother. Her attorney argued the control continued into Allen's adulthood including how she treated Ame.

"We just felt at some point she was not as passive of a person as we previously thought," said Chuck Pritchett, another juror....

The jurors said the entire process was difficult, explaining some of the details and testimony will stay with them forever. "The hardest thing for all of us was the victim (Ame) and learning about what her life really entailed," said Ann Opseth, a juror. "The years of abuse that she suffered."

This additional local article about the case provides more details about the crime and context for the sentencing. As is often true for all sorts of sentencings, both capital and non-capital, the defendant's character and history may have mattered even more than her crime.

August 8, 2017 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, August 07, 2017

Effective reminder of plea realities and over-criminalization in modern US criminal justice systems

Emily Yoffe has this lengthy new Atlantic article that effectively reviews what most modern criminal justice practitioners know well about the criminal justice system: plea practices are the heart of criminal case processing. The piece is headlined "Innocence Is Irrelevant: This is the age of the plea bargain—and millions of Americans are suffering the consequences." I recommend the piece in full, and here are excerpts:

This is the age of the plea bargain. Most people adjudicated in the criminal-justice system today waive the right to a trial and the host of protections that go along with one, including the right to appeal. Instead, they plead guilty. The vast majority of felony convictions are now the result of plea bargains—some 94 percent at the state level, and some 97 percent at the federal level. Estimates for misdemeanor convictions run even higher. These are astonishing statistics, and they reveal a stark new truth about the American criminal-justice system: Very few cases go to trial. Supreme Court Justice Anthony Kennedy acknowledged this reality in 2012, writing for the majority in Missouri v. Frye, a case that helped establish the right to competent counsel for defendants who are offered a plea bargain. Quoting a law-review article, Kennedy wrote, “ ‘Horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’ ”...

Because of plea bargains, the system can quickly handle the criminal cases of millions of Americans each year, involving everything from petty violations to violent crimes. But plea bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t present a danger to society, or whose “crime” may primarily be a matter of suffering from poverty, mental illness, or addiction. And plea bargains are intrinsically tied up with race, of course, especially in our era of mass incarceration.

As prosecutors have accumulated power in recent decades, judges and public defenders have lost it. To induce defendants to plead, prosecutors often threaten “the trial penalty”: They make it known that defendants will face more-serious charges and harsher sentences if they take their case to court and are convicted. About 80 percent of defendants are eligible for court-appointed attorneys, including overworked public defenders who don’t have the time or resources to even consider bringing more than a tiny fraction of these cases to trial. The result, one frustrated Missouri public defender complained a decade ago, is a style of defense that is nothing more than “meet ’em and greet ’em and plead ’em.”...

Thanks in part to plea bargains, millions of Americans have a criminal record; in 2011, the National Employment Law Project estimated that figure at 65 million. It is a mark that can carry lifetime consequences for education, employment, and housing. Having a record, even for a violation that is trivial or specious, means a person can face tougher charges and punishment if he or she again encounters the criminal-justice system. Plea bargaining has become so coercive that many innocent people feel they have no option but to plead guilty. “Our system makes it a rational choice to plead guilty to something you didn’t do,” Maddy deLone, the executive director of the Innocence Project, told me....

“No one sets out to create bloated criminal codes,” I was told by David Carroll, the executive director of the Sixth Amendment Center, which protects the right to counsel. “But once they exist, vast resources are spent to justify them.” In response to the crime wave, the United States significantly expanded police forces to catch criminals, prosecutor’s offices to charge them, and the correctional system to incarcerate them. Legislators have added so many acts to criminal codes that in 2013, Neil Gorsuch—now on the Supreme Court, but then an appellate judge—publicly raised concerns. In a speech sponsored by the Federalist Society, he asked, “What happens to individual freedom and equality—and to our very conception of law itself—when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”...

No amount of tinkering, however, will matter much unless Americans stop trying to use the criminal-justice system as a tool for managing social ills. “Why are these cases being pumped into the system in the first place?,” [Professor Stephanos] Bibas said to me. He’s not alone in asking. Across the country, in red states and blue states, reformist state and district attorneys have recently been elected on platforms of rolling back harsh sentencing, reducing the enforcement of marijuana laws, and knocking down crimes from felonies to misdemeanors. And change is happening. Last year, for example, the New York City Council passed legislation that made offenses such as public drinking and urination civil rather than criminal violations, and thus subject largely to tickets and fines.

Paring back our criminal code and eliminating many mandatory minimum sentences will be crucial to reform. In the long-running War on Drugs, the government has regularly prosecuted people for possessing small amounts of illegal substances, or for merely possessing drug paraphernalia. Often, on the basis of no evidence beyond a police officer’s assertion, officials have charged and prosecuted defendants for the more serious crime of “intent to sell.” But during Prohibition, when the manufacture, transport, and sale of alcohol were federal crimes, Americans were not arrested by the millions and incarcerated for drinking. And they certainly didn’t plead guilty to possessing martini glasses and other drinking paraphernalia....

The United States is experiencing a criminal-justice crisis, just not the one the Trump administration talks about. By accepting the criminalization of everything, the bloat of the criminal-justice system, and the rise of the plea bargain, the country has guaranteed that millions of citizens will not have a fair shot at leading ordinary lives.

August 7, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Sunday, August 06, 2017

You be the federal judge: what sentence for "Pharma Bro" after his fraud convictions?

As regular readers know, I enjoy following up news of a high-profile conviction by asking what sentence readers think fitting for the high-profile convicted offender.  As detailed in this MSNBC report, headlined "'Pharma bro' Martin Shkreli found guilty of 3 of 8 charges, including securities fraud," the high-profile offender this time around is a notorious pharmaceutical executive. Here are the basics about his crime:

A federal jury Friday found notorious "Pharma bro" Martin Shkreli guilty of three counts of securities fraud — but acquitted him of five other criminal counts related to hedge funds investors and a drug company he founded. The split verdict in Shkreli's trial came at about 2:37 p.m. on the fifth day of jury deliberations, after a more-than-month-long trial in Brooklyn, New York, federal court.

At that trial, prosecutors claimed Shkreli had defrauded multiple investors in his two hedge funds out of millions of dollars, only to repay them with stock and cash that he looted from a the biotech company he created, Retrophin. While the seven-woman, five-man jury clearly accepted some of the prosecution's evidence, it rejected other parts of their argument.

The mixed decision perplexed many in the courtroom, including the 34-year-old Shkreli, who first drew widespread public scorn in 2015 for raising the price of a lifesaving drug by more than 5,000 percent. He looked over quizzically at one of this lawyers, Marc Agnifilo, each of the three times that Judge Kiyo Matsumoto interrupted a set of "not guilty" announcements she was reading off of the jury's verdict sheet with a "guilty" one.

A juror who was quoted anonymously by the New York Times, said "In some of the counts at least we couldn't find that he intentionally stole from them and the reasoning was to hurt them."...

Shkreli, who remains free on $5 million bail, faces a maximum sentence of 20 years in prison. But he is sure to receive a far-less-severe punishment than that, given his lack of a criminal record, and other factors.

"I think we are delighted in many ways," said Shkreli said outside of the courthouse. "This was a witch hunt of epic proportions and maybe they found one or two broomsticks but at the end of the day we've been acquitted of the most important charges in this case." He almost immediately afterward used his new Twitter account, @samthemanTP, to comment on the outcome of the case, and also started a livestream on YouTube from his apartment.

Shkreli's lead lawyer, Benjamin Brafman, told a group of journalists, "I hope tomorrow's reports inform the public that Martin Shkreli went to trial and despite being Martin Shkreli he won more than he lost."

But acting United States Attorney Bridget Rohde, whose office prosecuted Shkreli, said, "We're gratified as we stand here today at the jury's verdict."

"Justice has been served," said Rohde, whose prosecution team next plans to try Shkreli's co-defendant and former business lawyer Evan Greebel this fall.

Brafman said the amount of money Shkreli could be made to surrender would have been much higher if he had been found guilty of ripping off Retrophin, to repay swindled hedge-fund investors. But Shkreli was acquitted of that charge, conspiracy to commit wire fraud, which Brafman referred to as "the money count."

Brafman said that because the jury found that any loss suffered by Retrophin was either low, or non-existent, as the defense claims, the sentence recommended for Shkreli will be light. "I think we would love to have a complete sweep but five out of eight counts, not guilty, is in our view a very good verdict especially since count seven, the main count that impacts on the loss in this case, that was the most important count in the case from our perspective," Brafman said. "And for Martin to be found not guilty of that count is a very, very good result as far as we are concerned," Brafman said....

The charges against Shkreli were unrelated to his decision, while CEO of Turing Pharmaceuticals, to raise the price of the drug Daraprim from $13.50 per pill to $750 per pill in 2015. The price increase came as he was being investigated for the case that led to his trial.

Prosecutors said a mountain of testimony and evidence at that trial showed that Shkreli duped multiple investors into putting millions of dollars into two hedge funds he ran, MSMB Capital and MSMB Healthcare, by falsely claiming to have an excellent record of running such funds, and by falsely stating his investment strategy had a low level of risk.

After getting their money, prosecutor said, Shkreli quickly lost much of it, and also used some of it to capitalize his infant company Retrophin even as he continued sending out financial statements to investors claiming positive returns. And when investors asked for their money to be redeemed to them in cash, Shkreli brushed them off for months or more, inventing excuses and suggesting alternative ways to pay them back, according to the prosecution's case.

Two of the securities fraud counts for which Shkreli was convicted related to those hedge funds. Prosecutors said that he then improperly used Retrophin stock and cash from the young firm to pay off the the funds' investors. While Shkreli was acquitted of on Retrophin-related count, he was convicted of conspiracy to commit securities fraud in connection with Retrophin.

This Reuters article, headlined "Shkreli sentence turns on antics, investor impact of crime," highlights that this case may be the relatively rare white-collar case in which the calculated guideline range is rather low but personal factors may prompt a judge to want to sentence above the range:

Benjamin Brafman, Shkreli's lawyer, said because the hedge fund investors ultimately profited, his client's sentencing range should be zero to six months, which allows for probation in lieu of prison.

Brafman in an email on Saturday acknowledged Shkreli's social media habits are "not helpful" and hoped the court would focus on the facts of the case and the law. "My hope is that the court will ignore the childish and compulsive tweeting of Mr. Shkreli that‎ is his right to do," Brafman said.

Shkreli could benefit from steps he took to repay investors before he caught the attention of authorities. "As long as the investors were paid back before he knew there was a criminal investigation that is subtracted from any loss figure," said Sarah Walters, a lawyer at the law firm McDermott Will & Emery.

Prosecutors are expected to argue the intended losses of the fraud were much higher, noting the millions of dollars that investors lost before they were repaid, according to the law enforcement source, who requested anonymity to discuss the case. That could allow for a lengthier sentence, as under federal sentencing guidelines, judges are to consider the actual or intended loss, whichever is higher.

Legal experts also said prosecutors could argue for a lengthier sentence by asking U.S. District Judge Kiyo Matsumoto to factor in the conduct involving Retrophin despite the acquittals. While juries must find wrongdoing under the high standard of proof beyond a reasonable doubt, judges at sentencing may consider facts proven by the lower standard of preponderance of the evidence.

The guidelines are advisory only, and Matsumoto can factor in other issues, including Shkreli's trash-talking habits. "In this case, I imagine they will focus more on that he is a liar, he disparages people, he is a disruptive force and he has a complete lack of remorse," said John Zach, a lawyer at Boies, Schiller & Flexner.

August 6, 2017 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6)

Friday, August 04, 2017

Split DC Circuit finds unconstitutionally excessive 30-year mandatory minimum sentences for Blackwater contractors who killed Iraqis

A huge new DC Circuit opinion released today in a high-profile criminal case include a significant Eighth Amendment ruling.  The full 100+-page opinion in US v. Slatten, No. 15-3078 (DC Cir. Aug. 4, 2017) (available here), gets started this way:

Nicholas Slatten, Paul Slough, Evan Liberty and Dustin Heard (“defendants”) were contractors with Blackwater Worldwide Security ("Blackwater"), which in 2007 was providing security services to the United States State Department in Iraq. As a result of Baghdad shootings that injured or killed at least 31 Iraqi civilians, Slough, Liberty and Heard were convicted by a jury of voluntary manslaughter, attempted manslaughter and using and discharging a firearm in relation to a crime of violence (or aiding-and-abetting the commission of those crimes); Slatten was convicted of first-degree murder. They now challenge their convictions on jurisdictional, procedural and several substantive grounds....

The Court concludes ...that the district court abused its discretion in denying Slatten’s motion to sever his trial from that of his co-defendants and therefore vacates his conviction and remands for a new trial. Moreover, the Court concludes that imposition of the mandatory thirty-year minimum under 18 U.S.C. § 924(c), as applied here, violates the Eighth Amendment prohibition against cruel and unusual punishment, a holding from which Judge Rogers dissents. The Court therefore remands for the resentencing of Slough, Liberty and Heard.

The majority's Eighth Amendment analysis is really interesting, running more than 30 pages and covering lots of ground. And it wraps up this way:

The sentences are cruel in that they impose a 30-year sentence based on the fact that private security contractors in a war zone were armed with government-issued automatic rifles and explosives. They are unusual because they apply Section 924(c) in a manner it has never been applied before to a situation which Congress never contemplated. We again emphasize these defendants can and should be held accountable for the death and destruction they unleashed on the innocent Iraqi civilians who were harmed by their actions. But instead of using the sledgehammer of a mandatory 30-year sentence, the sentencing court should instead use more nuanced tools to impose sentences proportionally tailored to the culpability of each defendant.

Judge Rogers' dissent from this conclusion is also really interesting, and it concludes this way:

Although it is possible to imagine circumstances in which a thirty-year minimum sentence for a private security guard working in a war zone would approach the outer bounds of constitutionality under the Eighth Amendment, this is not that case.  The jury rejected these defendants’ claim that they fired in self-defense, and far more of their fellow security guards chose not to fire their weapons at all that day.  Yet as my colleagues apparently see it, Congress should have included an exception for all such military contractor employees, or, rather, it would have included such an exception if it had only considered the issue.  See Op. 72–74.  Perhaps so, but that is not the question before us. The district court judge made an individualized assessment of an appropriate sentencing package for each of these defendants, and the result is not disproportionate to the defendants’ crimes, let alone grossly, unconstitutionally disproportionate.

I think it possible (but not at all certain) that the feds will seek cert review of this Eighth Amendment decision, and I think it also possible (but not at all certain) that SCOTUS might be interested in this issue in this setting.

August 4, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Thursday, August 03, 2017

"Capital Punishment of Unintentional Felony Murder"

The title of this post is the title of this recent paper that I just recently came across via SSRN. The paper was authored by Guyora Binder, Robert Weisberg and Brenner Fissell, and here is its abstract:

Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment.  This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill.  The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death.

This Article shows that this mechanical reading of precedent is mistaken, because the underlying justifications of Eighth Amendment jurisprudence require a rational selection for death of only the most deserving and deterrable offenders, and this in turn requires an assessment of culpability.  We argue that the Supreme Court should address this open question in Eighth Amendment law and that it should correct the lower courts by imposing a uniform requirement of at least recklessness with respect to death for capital punishment of felony murder.

August 3, 2017 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

Distinct sentencing advice from family members for teen guilty of involuntary manslaughter for encouraging suicide

This local article, fully headlined "Conrad Roy’s aunt: Give Michelle Carter 20 years; Defendant’s dad wants probation," reports in the very different advice being given to a juvenile judge in Massachusetts in a high-profile case due to be sentenced today. Here are the details:

A grieving aunt of teen suicide victim Conrad Roy III is looking for a 20-year prison sentence for Michelle Carter tomorrow on the heels of her conviction in the blockbuster suicide-by-text case — but the girl’s worried dad is pleading for probation. “I believe she should be kept far away from society,” wrote Kim Bozzi, Roy’s aunt, in a statement she said she plans to read at Carter’s sentencing inside Taunton Trial Court.

“Take away the spotlight that she so desperately craves. Twenty years may seem extreme but it is still twenty more than Conrad will ever have,” Bozzi said in the written statement she gave to the Herald.

But David Carter, Michelle’s father, begged for probation and “continued counselling” in a July letter to Judge Lawrence Moniz. “She will forever live with what she has done and I know will be a better person because of it,” David Carter wrote in the signed letter, provided to the Herald. “I ask of you to invoke leniency in your decision-making process for my loving child Michelle.”...

The judge found that Carter caused the death of Roy, who killed himself in a Fairhaven Kmart parking lot in 2014 by filling his truck with carbon monoxide. Carter, 20, of Plainville, who had an almost entirely virtual relationship with Roy, goaded him into killing himself through a series of texts and calls. The Mattapoisett teen left the truck as it filled with deadly fumes, but according to testimony at Carter’s trial, she told him on the phone to “get back in.”

“I’m unsure when she decided to set her sick plan into motion or why, but when she did she did it relentlessly, it was calculated and it was planned down to a T,” Bozzi wrote in the victim-impact statement. “She preyed on his vulnerabilities, he trusted her, which in turn, cost him his life.” Bozzi, who attended every court appearance, told the Herald other family members are prepared to speak as well. She said Carter’s conviction was a relief and that “what happens next is up to God and a judge.”

Prior related post:

UPDATE:  Michelle Carter received a prison sentence of 2.5 years, but only half has to be actually served in prison as explained in this CNN article.  It starts this way:

Michelle Carter, who was convicted of involuntary manslaughter in the 2014 suicide of her boyfriend, was sentenced Thursday to a two-and-a-half-year term, with 15 months in prison and the balance suspended plus a period of supervised probation.

"This court must and has balanced between rehabilitation, the promise that rehabilitation would work and a punishment for the actions that have occurred," said Bristol County Juvenile Court Judge Lawrence Moniz.

August 3, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (14)

Tuesday, July 25, 2017

Shouldn't latest lawsuit challenging federal marijuana prohibition include an Eighth Amendment claim?

The question in the title of this post is my (sentencing-addled?) reaction to seeing the 89-page complaint filed yesterday on behalf of a number of notable plaintiffs in federal district court. The full complaint, which is available at this link, is summarized by Keith Stroup, legal counsel for the advocacy group NORML, in this new posting.  Here is part of that summary: 

Individual plaintiffs in the suit were two young children, an American military veteran, and a retired professional football player, all of whom are medical marijuana patients; and a membership organization alleging their minority members have been discriminated against by the federal Controlled Substances Act.

Seeking to overturn the 2005 Supreme Court decision in Gonzales v. Raich, plaintiffs request a declaration that the CSA, as it pertains to the classification of Cannabis as a Schedule I drug, is unconstitutional, because it violates the Due Process Clause of the Fifth Amendment, an assortment of protections guaranteed by the First Amendment, and the fundamental Right to Travel. Further, plaintiffs seek a declaration that Congress, in enacting the CSA as it pertains to marijuana, violated the Commerce Clause, extending the breadth of legislative power well beyond the scope contemplated by Article I of the Constitution....

In their Complaint, plaintiffs allege that the federal government does not, and could not possibly, believe that Cannabis meets the definition of a Schedule I drug, which is reserved for the most dangerous of substances, such as heroin, LSD, and mescaline; and that classifying Cannabis as a “Schedule I drug,” is so irrational that it violates the U.S. Constitution. Among the other claims in the lawsuit are that the CSA: (i) was enacted and implemented in order to discriminate against African Americans and to suppress people’s First Amendment rights; and (ii) violates plaintiffs’ constitutional Right to Travel.

Like every self-respecting law professor, I love novel constitutional claims -- they are certainly "good for business."  Consequently, I am intrigued and bemused by the effort to bring down the CSA as a violation of the First Amendment and the "Right to Travel."  But, especially because the CSA includes criminal penalties for any and all marijuana use, even if that use is recommended by a doctor for a serious medical condition, I have long thought there could be a viable Eighth Amendment claim that possible federal prosecution for some marijuana activity threatens a form of "cruel and unusual punishment."

A big new lawsuit attacking the CSA on various grounds on behalf of medical marijuana patients would now seem to present good new opportunity to bring a big new Eighth Amendment claim.  After a lot of recent initiative and legislative reforms, some kind of medical marijuana reform is the law in roughly 90% of US jurisdictions (details here).  And the Supreme Court's Eighth Amendment jurisprudence always talks up "evolving standards," and it often stresses the import of "objective indicia of society’s standards, as expressed in legislative enactments and state practice" to evidence a "national consensus" against a particular type of punishment.  It thus strikes me that there is now an especially strong argument that there is now an especially strong national consensus in the US against criminally punishing anyone for using marijuana for a legitimate medical reason.

But perhaps I am missing something when I think about this issue in Eighth Amendment terms, and perhaps a reader can help me identify a possible good reason for this new lawsuit to be missing an Eighth Amendment argument.

July 25, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues | Permalink | Comments (8)

Monday, July 24, 2017

Distinct approaches to the opioid epidemic

Earlier this month, Kathleen Sebelius and Tommy Thompson, who served as U.S. Secretaries of Health and Human Services under the last two Presidents, penned this Hill commentary headlined "5 big ideas to halt America's opioid epidemic."  Here are the five big ideas as these HHS Secretaries presented them: "Expand access to treatment through insurance...; Rein in overprescription of opioid pain relievers...; Treat opioid addiction as a public health problem...; Stop drug overdose deaths with this solution...; Learn how to treat pain with minimal side effects."

But as the headline of this New York Times article reports, some prosecutors in the New York region have been pursuing a much different big idea: "New Tactic in War on Opioids: Charging Dealers in Overdose Deaths."  Here is an excerpt from the piece:

As heroin and its synthetic cousin, fentanyl, send more and more victims to the morgue, prosecutors are leaping into largely uncharted legal terrain, as they tried in the 1970s, to fight the scourge. The second-degree manslaughter and criminally negligent homicide charges filed against Mr. Cummings follow similar strategies used recently by prosecutors in upstate New York and on Long Island. They also mirror a case brought three years ago by the city’s special narcotics prosecutor, Bridget G. Brennan, against a pain management doctor, Stan Xuhui Li, who was sentenced to more than 10 years in prison.

Convicting a physician of recklessly causing the death of his patients is a leap beyond proving a drug dealer did the same to a customer, but they reflect the same approach: prosecutors mixing current laws with new investigative tools to fight back against the rising tide of opioid-related deaths. The Richmond County district attorney, Michael E. McMahon, has applied such tactics in more than 240 overdose cases....

Around the city, a more common path for such cases has been through federal courts. Prosecutors in the Southern District of New York have brought 13 cases over the last four years charging people with “distribution of drugs causing death,” a statute that carries a 20-year minimum sentence. A bill in Albany, dubbed Laree’s Law, to create a homicide charge in state cases, has languished in the Assembly. In all cases, the authorities said they sought the most punitive sanctions, which has led to a focus on tying narcotics rings to violence, particularly in gang takedowns.

July 24, 2017 in Drug Offense Sentencing, Offense Characteristics, Who Sentences? | Permalink | Comments (6)

Wednesday, July 19, 2017

Will (and should) OJ Simpson get paroled in Nevada this week?

This USA Today article, headlined "Why O.J. Simpson is expected to be paroled at July 20 hearing," reports on why an infamous state criminal defendant is expected to secure parole in Nevada after serving only about 30% of his imposed prison term. Here are excerpts:

O.J. Simpson, behind bars in a Nevada prison for almost nine years, is eligible for parole Thursday and one of his former attorneys thinks the matter is all but a foregone conclusion that the former football and TV star will be eligible for release on Oct. 1.

"He’s going to get parole," said Yale Galanter, who represented Simpson during the 2008 trial when Simpson was found guilty of 12 counts, including robbery and kidnapping, and sentenced to nine years minimum and 33 years maximum. "Parole in the state of Nevada is really based on how you behave in prison, and by all accounts he’s been a model prisoner. There are no absolutes anytime you’re dealing with administrative boards, but this is as close to a non-personal decision as you can get."

Four members from the Nevada Board of Parole Commissioners will consider parole for Simpson at the board offices in Carson City, Nev., with the proceedings set to begin Thursday at 1 p.m. ET. Simpson, 70, will participate by video conference from about 100 miles away at Lovelock Correctional Center, where he has been imprisoned since December 2008.

Parole is largely determined by a point system, and how the commissioners feel about Simpson — or his acquittal in the murder of his ex-wife, Nicole Brown Simpson, and Ron Goldman — can have no impact on parole, according to Galanter. "It really is based on points," he said. "How long have you served, what your disciplinary record is, what the likelihood of committing another crime is, their age, the facts and the circumstances of the case."

The parole board has rejected the idea that Simpson could be facing more conservative commissioners because he’s imprisoned in northern Nevada. In a statement published on its website, the parole board said all commissioners use the same risk assessment and guidelines, adding, "There is no evidence that the board is aware of that indicates that one location has panel members who are more conservative or liberal than the other location."... "Simpson, with the help of several other men, broke into a Las Vegas hotel room on Sept. 13, 2007, and stole at gunpoint sports memorabilia that he said belonged to him. More than a year later, on Oct. 8, 2008, he was found guilty by a jury on all 12 charges. He was granted parole in 2013 on the armed robbery convictions. Galanter called that "the clearest indicator" Simpson will be granted parole on the remaining counts Thursday.

Simpson is being considered for parole for kidnapping, robbery, assault with a deadly weapon and the use of a deadly weapon enhancement. "It’s a fairly routine administrative matter," the attorney said. "It’s more like, 'Mr. Simpson, you’ve been a model prisoner, you have the points, congratulations, do you have anything to say, thank you very much, granted, Oct. 1.' "

Yet, it won’t exactly be routine. The parole board, for example, has said it will issue a decision Thursday so to minimize distractions. The results of some hearings, by contrast, take three weeks to reach the inmate. "The media interest in this one case is a disruption to our operation," the parole board said in its statement. "A decision (on Simpson) is being made at the time of the hearing so that the board’s operation can return to normal as soon as possible after the hearing."...

Simpson will have an opportunity to address the board by video conference as he did during the 2013 hearing. More than 240 media credentials have been approved, according to Keast, who said a dozen satellite trucks are expected at the sites in both in Carson City and Lovelock. If Simpson is paroled, the media figure to return in droves in Oct. 1, when he will be eligible for release from prison.

Notably, Gregg Jarrett at FoxNews believes strongy that OJ shoud not get parole; he explains in this commentary, headlined "O.J. Simpson, up for parole, should never be set free," how the California civil suit finding OJ responsible for wrongful deaths should be sufficient for the Nevada parole board to conclude he presents a risk to public safety.

July 19, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Friday, July 14, 2017

"Murder Is Up Again In 2017, But Not As Much As Last Year"

Asher-murder-0710-1The title of this post is the title of this notable new analysis of big city murder data authored by Jeff Asher over at FiveThirtyEight.  Here is how the posting starts and ends (with footnotes/links omitted):

Big U.S. cities1 saw another increase in murders in the first half of 2017, likely putting them on track for a third straight year of rising totals after murder rates reached historic lows in 2014.  So far, however, this year’s increase is considerably smaller than it was in each of the past two years; the big-city numbers are consistent with only a modest rise in murders nationwide.  Overall, if recent numbers hold, the nation’s murder rate will likely rise but remain low relative to where it was from the late 1960s through the 1990s.

The FBI collects national data on murders and other major crimes, but it releases them after a significant lag.  The most recent full year for which official data is available is 2015, when murders rose at their fastest pace in a quarter century.  Official 2016 data won’t be available until the fall, but murder almost certainly rose last year too; in January, I found that big cities experienced a roughly 11 percent increase in murders in 2016, which past patterns suggest is consistent with about an 8 percent rise in murder overall.

In order to gauge changes in the prevalence of murder in big cities in 2017, I collected year-to-date murder counts for 2017 and 2016 in 68 of the country’s big cities, using a mixture of data from the cities themselves and from media reports.  Data from 63 of the cities included murders committed through at least the end of May, and 50 cities provided data covering the month of June.  These big cities have had roughly 4 percent more murders so far in 2017 than they did at the same point in 2016.

Only a handful of cities are seeing large increases or decreases in murder this year, which is what we would expect to see given a small overall rise in the sample....

Big cities tend to exaggerate national murder trends, both up and down — so a large rise in big-city murder usually corresponds with a slightly smaller national increase.  If murder rose roughly 8 percent nationally in 2016 (as my January estimate suggests) and is set to rise a few percentage points in 2017, then the nation’s murder rate in 2017 will be roughly the same as it was in 2008.  That’s still more than 40 percent lower than the country’s murder rate in the early 1990s (but roughly 27 percent higher than it was in 2014).

Ultimately, this year’s trend is similar to last year’s in that more big cities are seeing a rise in the number of murders than are seeing a decline.  There are still six months left in 2017, and while anything could happen, the most likely outcome is that — although this year’s rise will likely be smaller than last year’s — the country will see murders increase for a third straight year.

As regular readers know, Attorney General Sessions has made much of rising crime rates in his criticisms of Obama era criminal justice reforms and in his defense of his recent decision to toughen federal prosecutorial charging and sentencing practices. This kind of data showing still further (though smaller) increases in murders in 2017 on the heels of significant increases in 2015 and 2016 will likely only reinforce the views of AG Sessions and others in the Trump Administration that "tough and tougher" federal sentencing policies and practices are needed to enhance public safety.

July 14, 2017 in Criminal justice in the Trump Administration, National and State Crime Data, Offense Characteristics | Permalink | Comments (3)

Monday, July 10, 2017

Drug Policy Alliance issues big new report calling for drug decriminalization

Download (2)This new press release reports on the latest call by the Drug Policy Alliance (DPA) for drug decriminalization in the US.  The DPA has this new report titled "It's Time for the U.S. to Decriminalize Drug Use and Possession," and the press release discusses its work with other organization to push this agenda forward.  Here is start and end of the DPA report's executive summary:

By any measure and every metric, the U.S. war on drugs — a constellation of laws and policies that seeks to prevent and control the use and sale of drugs primarily through punishment and coercion – has been a colossal failure with tragic results. Indeed, federal and state policies that are designed to be “tough” on people who use and sell drugs have helped over-fill our jails and prisons, permanently branded millions of people as “criminals”, and exacerbated drug-related death, disease and suffering — all while failing at their stated goal of reducing problematic drug use.

This report offers a roadmap for how to begin to unwind our failed drug war. It focuses on one practical step that can and should be taken to avoid many of the harms that flow from punitive prohibitionist drug laws and to promote proven, effective health-based interventions.

Drug decriminalization is a critical next step toward achieving a rational drug policy that puts science and public health before punishment and incarceration.  Decades of evidence has clearly demonstrated that decriminalization is a sensible path forward that would reap vast human and fiscal benefits, while protecting families and communities.

Drug decriminalization is defined here as the elimination of criminal penalties for drug use and possession, as well as the elimination of criminal penalties for the possession of equipment used for the purpose of introducing drugs into the human body, such as syringes.  Throughout this report, we will use the phrase “drug possession” to include drug possession, drug use, and possession of paraphernalia used for the purpose of introducing drugs into the human body.

Ideally, drug decriminalization entails the elimination of all punitive, abstinence-based, coercive approaches to drug use; however, for purposes of this report, the term encompasses a spectrum of efforts to eliminate criminal penalties, even if such efforts do not eliminate all forms of coercion entirely.  Drug decriminalization also ideally entails the removal of criminal penalties for low-level sales, given that the line between seller and user is often blurred (this subject and the broader issue of people who sell drugs will be addressed in a subsequent DPA report).

This report is the product of a comprehensive review of the public health and criminology literature, an analysis of drug policies in the U.S. and abroad, and input from experts in the fields of drug policy and criminal justice.  By highlighting the benefits of eliminating criminal penalties for drug use and possession, we seek to provide policymakers, community leaders and advocates with evidence-based options for a new approach....

This report makes the following recommendations for local, state and federal policymakers in the U.S.:

• Congress and U.S. states should eliminate federal and state criminal penalties and collateral sanctions for drug use, drug possession for personal use, and possession of paraphernalia intended for consuming drugs.

• Congress should amend federal law to de-schedule marijuana and remove it from the federal Controlled Substances Act.

• Administrative penalties – such as civil asset forfeiture, administrative detention, driver’s license suspension (absent impairment), excessive fines, and parental termination or child welfare interventions (absent harm to children) – run counter to the intent of a decriminalization policy and should not be imposed.

• Decriminalization policies — like other drug policies — generally function far more effectively when accompanied by robust and diverse harm reduction and treatment-on-demand programs, including medication-assisted treatment.

• Local and state governments should adopt pre-booking diversion and 911 Good Samaritan policies to prioritize public health over punishment and incarceration.

July 10, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Friday, July 07, 2017

Split Third Circuit panel finds numerous problems with short federal sentences for child-abusing Army couple

A remarkable and unusual federal sentencing involving a child-abusing couple led yesterday to a remarkable and unusual federal circuit sentencing opinion in US v. Jackson, No. 16-1200 (3d Cir. July 6, 2017) (available here). Here is how the 80-page(!) majority opinion by Judge Cowen gets started:

John and Carolyn Jackson (“John” and “Carolyn”) were convicted of conspiracy to endanger the welfare of a child and endangering the welfare of a child under New Jersey law— offenses that were “assimilated” into federal law pursuant to the Assimilative Crimes Act (“ACA”).  The United States District Court for the District of New Jersey sentenced Carolyn to 24 months of imprisonment (as well as three years of supervised release). John received a sentence of three years of probation (together with 400 hours of community service and a $15,000 fine). The government appeals from these sentences.

We will vacate the sentences and remand for resentencing.  Concluding that there is no “sufficiently analogous” offense guideline, the District Court declined to calculate Defendants’ applicable sentencing ranges under the Guidelines. Although we adopt an “elements-based” approach for this inquiry, we conclude that the assault guideline is “sufficiently analogous” to Defendants’ offenses of conviction. Furthermore, the District Court failed to make the requisite findings of fact — under the applicable preponderance of the evidence standard — with respect to this Guidelines calculation as well as the application of the statutory sentencing factors.  We also agree with the government that the District Court, while it could consider what would happen if Defendants had been prosecuted in state court, simply went too far in this case by focusing on state sentencing practices to the exclusion of federal sentencing principles. Finally, the sentences themselves were substantively unreasonable.

Here is how the dissenting opinion by Judge McKee gets started:

It is impossible for anyone with an ounce of compassion to read through this transcript without becoming extraordinarily moved by allegations about what these children had to endure. Had the defendants been convicted of assault, or crimes necessarily involving conduct that was in the same “ballpark” as assault as defined under New Jersey law, I would readily agree that this matter had to be remanded for resentencing using the federal guidelines that govern assault.  However, the district court held a ten and a half hour sentencing hearing in an extraordinarily difficult attempt to sort through the emotion and unproven allegations and sentence defendants for their crimes rather than the conduct the government alleged at trial and assumes in its brief. I believe the court appropriately did so pursuant to 18 U.S.C. §3553(a). Accordingly, I must respectfully dissent.

Before I begin my discussion, however, I must note that the defendants in this case were acquitted of the only federal offenses with which they were charged: assault with a dangerous weapon, with intent to do bodily harm, and assault resulting in serious bodily injury.  As I discuss more fully in Section II, these assault charges seem to drive the government’s argument and the Majority’s analysis.  In order to minimize confusion about the precise nature of the charges in this case and the conduct that was proven, a chart listing each of the charges and their outcomes is attached as an addendum to this dissent.

There are lots of lots of interesting elements to this unusual case, but the rarity of reversals of sentences as substantively unreasonable led me to read that part of the majority opinion most closely.  The majority here repeatedly finds flaws in how the district court weighed various permissible § 3553(a) considerations.  And the discussion begins by noting that the guidelines called for sentences of perhaps 20 or more years for these defendants so that "probation for John and 24 months’ imprisonment for Carolyn represented enormous downward variances, which require correspondingly robust explanations for why such lenience was warranted."

July 7, 2017 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Thursday, July 06, 2017

An amusing shout-out for the US Sentencing Commission's guideline simplification efforts

I just noticed an blog-worthy little concurrence by Judge Owens at the end of a Ninth Circuit panel decision last week in US V. Perez-Silvan, No. 16-10177 (9th Cir. June 28, 2017) (available here). The case concerned application of the "crime of violence" sentencing enhancement to a sentence for illegal reentry after deportation based on a prior Tennessee conviction for aggravated assault, and Judge Owen wrote this short opinion to praise the work of both his court and the US Sentencing Commission:

I fully join Judge O’Scannlain’s opinion, which faithfully applies controlling law to the question at hand.  But what a bad hand it is -- requiring more than 16 pages to resolve an advisory question.  I applaud the United States Sentencing Commission for reworking U.S.S.G. § 2L1.2 to spare judges, lawyers, and defendants from the wasteland of DescampsSee U.S.S.G. supp. app. C, amend. 802 (2016); U.S.S.G. § 2L1.2(b) (2016).  I continue to urge the Commission to simplify the Guidelines to avoid the frequent sentencing adventures more complicated than reconstructing the Staff of Ra in the Map Room to locate the Well of the Souls.  Cf. Almanza-Arenas v. Lynch, 815 F.3d 469, 482–83 (9th Cir. 2016) (en banc) (Owens, J., concurring); Raiders of the Lost Ark (Paramount Pictures 1981).

July 6, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, July 04, 2017

"Impeachable Offenses? The Case for Removal of the 45th President of the United States"

The title of this post is the title of this notable new blog created by former federal prosecutor and sentencing guru Professor Frank Bowman. Frank sent a note about the blog around a criminal law professor listserve yesterday, and I thought sharing that note today was, in a nerdy-law-professor way, kind of patriotic. So here is a bit of what Frank had to say about his new blog:

I propose to discuss, as dispassionately as possible, the case for impeachment of Mr. Trump. An actual impeachment is, as I’m sure you’d agree, a highly unlikely event.  But the prospect is talked about constantly, so I thought I’d try to create a resource for careful examination of all aspects of the question. I hope to make it a combination of (1) sources for those really interested in the subject, (2) quick-hit posts of links to other articles by other authors discussing impeachment, and (3) a growing series of essays by me, perhaps some of my students, and maybe other contributors on aspects of the impeachment problem.

Although it is a work in progress, I now have enough content on the site that I feel comfortable in telling people about it. I am in the midst of a series of posts analyzing the case for criminal obstruction of justice against Mr. Trump. See, e.g., this posting. In it, I discuss the views of Eric Posner, Daniel Hemel, Randall Eliason, Alan Dershowitz, and others. Professor Dershowitz has been kind enough to respond to my remarks on his position, and I’ve posted a rejoinder.

July 4, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14)

Saturday, July 01, 2017

Amish farmer sentenced to six year in federal prison for regulatory offenses and obstruction

GirodpictureThis local article reports on a notable federal sentencing that seemed driven, at least in part, by the defendant's disinclination to respect the federal government. The article is headlined "Amish farmer sold herbal health products. He’s going to prison for 6 years." Here are some of the details:

An Amish man was sentenced Friday to six years in prison for obstructing a federal agency and for making and selling herbal health products that were not adequately labeled as required by federal law. Samuel A. Girod of Bath County, a member of the Old Order Amish faith, was convicted in March on 13 charges, including threatening a person in an attempt to stop him from providing information to a grand jury.

U.S. District Judge Danny Reeves repeatedly asked Girod in court if he wished to make a statement but Girod refused. Girod, who represented himself, does not acknowledge that the court has jurisdiction. “I do not waive my immunity to this court,” Girod told the judge. “I do not consent.”

Girod has become a cause for some who see him as a victim of the federal government. More than 27,000 people have signed an online petition seeking to have him released from jail. About 75 supporters of Girod, including many Amish, gathered near the federal courthouse on Barr Street in downtown Lexington before and after the sentencing.

“We still have a country where people still come together to help each other,” said Emanuel Schlabach, 27, an Amish man from Logan County. As assistant U.S. attorneys left the courthouse after the sentencing, Girod supporters jeered them. “Shame on you!” shouted one supporter.

One non-Amish supporter, Richard Mack of Arizona, said after the sentencing that, “This is a national disgrace and outrage. ... He is being punished for being stubborn.” Mack, a former Arizona sheriff and political activist, said he and others will ask President Donald Trump to issue a pardon to Girod. Mack said he has used Girod’s chickweed salve with no ill effects.

Girod operated a business in Bath County that made products to be used for skin disorders, sinus infections and cancer. One product called TO-MOR-GONE contained an extract of bloodroot that had a caustic, corrosive effect on human skin, according to an indictment.

A federal court in Missouri had barred Girod from distributing the products until he met certain conditions, including letting the U.S. Food and Drug Administration inspect his business. But when two agents tried to inspect the plant in November 2013, Girod and others blocked them and made them leave, the indictment charged. Federal prosecutors said in a sentencing memorandum that Girod knowingly and intentionally sold misbranded products to customers and did not tell any of them about the injunction.

At trial, customers testified that they would not have purchased his products if they had known about the injunction. Girod argued that his products weren’t subject to Federal Drug Administration oversight because they were herbal remedies, not drugs. He also argued that requiring FDA approval of his products infringed on his religious freedom. Old Order Amish seek to insulate themselves from the modern world, including modern pharmaceuticals, he said.

Federal jurors rejected Girod’s defense, convicting him of conspiring to impede federal officers; obstructing a proceeding before a federal agency; failing to register with the FDA as required; tampering with a witness; failing to appear before a hearing; and distributing misbranded drugs....

In documents filed June 19, Girod argued that the charges in the indictment “do not apply to me.” “I am not a creation of state/government, as such I am not within its jurisdiction,” Girod wrote. He added later: “The proceedings of the ‘United States District Court’ cannot be applied within the jurisdiction of the ‘State of Kentucky.’”

Girod’s supporters outside the courthouse said his case is an example of overreach by the federal government. “I don’t need the FDA to protect me from an Amish farmer,” read a sign held by T.J. Roberts, a Transylvania University student from Boone County. “I feel what happened here is an example of judges making the law,” Roberts said. “What the FDA did here is an example of executive overreach in which they are choosing what Americans can put in or on their own bodies. I struggle to find where the victim is in this and where the crime was committed.”

But Judge Reeves said Girod brought the trouble on himself “because he steadfastly refused to follow the law.” To Girod, Reeves said, “You refused to follow anyone but yourself.”

I always have a negative reaction to any use of prison time in response to what seem like non-violent regulatory offenses by a person who would appear to present no genuine threat to public safety.  And this case especially caught my eye not only because a lot of federal prison time was imposed, but also because this critical report about the sentencing from a political blog indicates that the applicable federal guideline range here was 63-78 months.  In other words, the sentencing judge here though the defendant needed and deserved a sentence significantly above the bottom of the applicable guideline range in this case.  Also of note, the judge who decided a six year prison term was necessary in this case, U.S. District Judge Danny Reeves, happens to be the newest member of the US Sentencing Commission.

July 1, 2017 in Booker in district courts, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (27)

Thursday, June 29, 2017

Murderers admit they went on prison murder spree in order to get death sentences

Regular readers know that I think one of the hardest conceptual and practical issues for death penalty abolitionists is what to do about killers already serving life without parole sentences who go on to kill again while in prison. If the death penalty is completely eliminated, these offenders may conclude there is no real punishment if they kill again.  But this recent AP article, headlined "Inmate: I Strangled Prisoners to Try to Land on Death Row," reports on the awful reality that a pair of killers serving LWOP in a South Carolina prison apparently were inspired to go on a murder spree because of the presence of the death penalty. Here is the start of a horrible story:

One by one, Denver Simmons recalled, he and his partner lured inmates into his cell. William Scruggs was promised cookies in exchange for doing some laundry; Jimmy Ham thought he was coming to snort some crushed pills.  Over the course of about a half-hour, four men accepted Simmons' hospitality.  None of them made it out alive.

Calmly, matter-of-factly, the 35-year-old inmate told The Associated Press how he and Jacob Philip strangled and beat their blockmates to death and hid their bodies to avoid spooking the next victims. They had nothing against the men; one of them was even a friend, Simmons admitted.

Why did they do it? Convicted in the cold-blooded shootings of a mother and her teenage son, Simmons knew he would never leave prison alive.  Tired of life behind bars, a failure at suicide, he hoped killing these criminals would land him on death row.

Officials say Philip and Simmons have confessed to the April 7 slayings of Ham, 56; Jason Kelley, 35; John King, 52; and Scruggs, 44. But until Simmons talked to the AP, no motive had been made public. The South Carolina Department of Corrections doesn't allow in-person interviews with inmates.  So the AP wrote letters to the two men. Philip's attorney responded with an email: "Jacob is a severely mentally ill young man who has been so adjudicated by the court. Accordingly, I would ask that you make no further efforts to interview him or contact him."

Simmons, though, called the AP three times, once using another inmate's time slot. And he described a twisted compact between two men who had "a whole lot in common" from the moment they met — most important, both despair and a willingness to kill again.

"I'd always joke with him — from back in August and September and October of 2015 — that if we weren't going to kill ourselves, that we could make a name for ourselves, so to speak, and get the death penalty," Simmons, told the AP. "The end of March of this year, he was willing to do it. So, we just planned to do it. And we did it."

Each man was serving life without the possibility of parole for a double murder....  Both men were sent to Kirkland Correctional Institution, a maximum security facility a few miles from the state capitol in Columbia. They were being housed in a unit for inmates who need significant mental health help but whose conditions aren't serious enough to require hospitalization.

Simmons said spending the rest of his life in prison would be a meaningless life of fear and boredom. Inmates are always scheming to take advantage or hurt fellow prisoners and guards only see the men behind bars as numbers. "It's just not a good place to live, you know, day in and day out," Simmons said.

June 29, 2017 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Prisons and prisoners | Permalink | Comments (9)