Tuesday, October 22, 2013
In dissent, Judge Bright laments Eighth Circuit affirmance of 115 months in prison PLUS two life sentences for repeat bank robber
Dissenting from a panel affirmance today in US v. Scott, No. 12-3131 (8th Cir. Oct. 22, 2013) (available here), Judge Bright expressed these (and other) notable points about what he clearly considers an unreasonable sentence:
The sentence of 115 months in prison plus two life sentences imposed on Michael Scott by the district court represents a prime example of what may be called “gilding the lily.” It is unreasonable and excessive. For all practical purposes, the roughly 39-year mandatory minimum sentence in this case — for a defendant who is 56 at the time of sentencing — would have itself amounted to a sentence of life imprisonment. I ask what more is required. The sentence in this case is unreasonable and simply represents an effort to send a message of being tough on crime. But that’s not the purpose of a sentence....
As an appellate judge, I add another observation. The federal courts are now entering a new era of sentencing. Eric H. Holder, Jr., the United States Attorney General, has recently called for a new approach to criminal sentencing in the federal courts. The Attorney General emphasized the harsh reality that, as it stands today, “our system is in too many respects broken.” Eric Holder, Attorney General of the United States, United States Department of Justice, Remarks at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013), available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html. Indeed, I agree with the Attorney General that “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” Id.
The clearly excessive sentence imposed in this case illustrates very graphically the broken criminal justice system in the federal courts. Here, had Scott received a 39-year sentence — which the parties agreed was the mandatory minimum sentence in this case — he would be in prison until he was 95 years old. Yet the district court felt the need to impose a 115-month sentence followed by two life sentences. The district court justified the sentence by emphasizing Scott’s “criminal history and the need to protect the public.” But just how much protection does the public need from a 95- year-old man — assuming Scott were to live that long? According to the National Vital Statistics Reports, at the time he was sentenced, Scott was expected to live for another 27 years, or until he is about 83 years old.... A 39-year sentence would have been more than enough to serve as a deterrent and an appropriate punishment for a series of bank robberies, during which no one fired a gun and no one was physically injured. But instead, the district court imposed a substantially unreasonable sentence that is greater than necessary to accomplish the goals of sentencing. See 18 U.S.C. § 3553(a). This sentence is not justified and is improper and I will not affirm a sentence that is obviously too harsh and imposed simply to appear tough on crime.
I would reverse and remand this case with instruction to the district court to impose a sentence no greater than a 39-year sentence.
Monday, October 21, 2013
Chicago Sun-Times editorial explains why "Mandatory-minimum sentencing doesn’t work"Continuing an important on-going debate in Illinois over use of mandatory minimum sentences to deal with the problem of violent gun crimes, the Chicago Sun-Times today has this extended editorial headlined "Mandatory-minimum sentencing doesn’t work." Here are excerpts:
Mandatory minimum sentences, touted by some as a cure for gun crimes, are little more than a power grab by prosecutors. The intent of a mandatory minimum sentence is to make sure that people convicted of certain serious crimes get prison time and not a slap on the wrist, such as probation. But in the real world, that’s not what happens.
In the real world, this is what happens: Mandatory minimums, dictated by law, make it impossible for judges to use common-sense discretion when imposing sentences, so judges must nail some poor sap who simply made a foolish mistake with the same harsh sentence they would impose on a hardened criminal. But those mandatory minimums do nothing to reduce the ability of prosecutors to use discretion when deciding what charges — light or heavy — to file against a defendant. The indirect result is that prosecutors, not judges, set the sentence.
Mandatory sentencing is a fiction. It simply takes the decision-making for sentencing away from judges sitting in open court, where their actions can be questioned by higher courts, and hands that huge power and responsibility to prosecutors, who make their decisions behind closed doors, never to be challenged.
Legislation that might be called to a vote this week in Springfield would triple Illinois’ mandatory minimum sentence from one to three years for people convicted of the illegal use of a weapon, and it would broaden the kinds of crimes covered. An earlier version advanced out of committee in the spring legislative session, but ultimately died. The bill is backed by Mayor Rahm Emanuel, Police Supt. Garry McCarthy and the families of some gun crime victims. McCarthy says 108 shootings or murders so far in 2013 would have been prevented had the bill already been a law this year. He cited the case of Bryon Champ, convicted in 2012 of the unlawful use of a weapon, who is accused of taking part in a September drive-by shooting that injured 13 in Chicago’s Cornell Square Park.
Clearly, we all wish Champ — if in fact he was one of the drive-by shooters — had still been behind bars. But what about other sorts of gun-possession offenders who would qualify for same mandatory minimum sentence? Would we really send an 87-year-old woman who lives in a dangerous neighborhood to prison for three years for illegally keeping a gun as protection? Should state Sen. Donne Trotter really have gone to prison for three years when a gun was found in his luggage at O’Hare Airport?
It’s a question that will come up more often in Illinois when the concealed carrying of weapons becomes legal next year, and people — forgetting they are armed — try to carry guns into prohibited places. Should those people go to prison for three years as well?
The thinking behind mandatory minimum sentences is that prosecutors can be better trusted than judges to mete out tough punishment. Cook County State’s Attorney Anita Alvarez criticizes judges for being “quite lenient.” But most judges in the criminal court system are former prosecutors. And from 2010 through 2012, about 14,000 people were charged in three categories of unlawful use of a weapon, but the number of convictions was less than half of that. Changing sentences in cases where there is no conviction wouldn’t make any difference.
In analyzing the bill, the University of Chicago Crime Lab estimated that putting more people in prison would lead to 3,800 fewer crimes per year, including 400 fewer serious violent crimes. But the Sentencing Policy Advisory Council calculates that had the stricter mandatory minimum law been in effect from 2010 through 2012, it would have boosted prison costs by about $393 million. A Department of Corrections note attached to the legislation last spring estimated the bill would result in an increase of 3,860 inmates, with additional operating costs of $701,712,300 and construction costs of $263,130,300 over 10 years. That money would have to come from somewhere. If that leads to smaller police forces or cutting out effective programs to prevent recidivism, we might wind up with more gun crime than before.
Julie Stewart, president of Washington-based Families Against Mandatory Minimums, noted in a Feb. 17 Chicago Sun-Times op-ed that Chicago’s murder rate actually jumped 16 percent after Illinois imposed its current one-year mandatory minimum in 2011. And a report released Thursday by the Northwestern School of Law Bluhm Legal Clinic concludes mandatory sentences would not deter crime....
On the national level, the Obama administration is trying to curb mandatory minimum sentencing, which is an idea that goes back to the 1980s. Illinois should be doing so as well.
October 21, 2013 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Monday, October 14, 2013
Intriguing research and debate surrounding talk of increasing mandatory minimum sentence for illegal gun possession in ChicagoThis new Chicago Sun-Times article, headlined "U. of C. study bolsters call for stiffer firearms sentences: police supt.," reports on some notable new crime research concerning a proposal to increase the mandatory minimum sentence for certain gun possession crimes. Here are excerpts:
Mayor Rahm Emanuel’s argument for stiffer firearms sentences is bolstered by a new study showing gun possession offenders placed on probation are more likely to get re-arrested for murder than other felons, his police superintendent says.
The University of Chicago Crime Lab studied whether those convicted of aggravated unlawful use of a weapon — a gun possession charge — have higher arrest rates for murders and non-fatal shootings than other felons. Using Chicago Police arrest data, the study found that aggravated UUW offenders were four times more likely to be re-arrested on murder charges and nearly nine times more likely to be locked up for nonlethal shootings than other felons.
The U of C study focused on all felons — and a subset of aggravated UUW offenders — who have been sentenced to probation between 2008 and 2011 in Cook County. The study tracked any re-arrests within two years of their probation date.
“This data makes clear that we have to treat illegal gun possession as the violent crime that it is,” police Supt. Garry McCarthy said on Friday.
A bill backed by the Emanuel administration and Cook County State’s Attorney Anita Alvarez would raise the mandatory minimum sentence for aggravated UUW from one to three years and would require offenders to serve 85 percent of their sentences — a “truth in sentencing” provision.
“No matter how you look at it, this bill will save lives,” McCarthy said. “Every illegal gun on our street is a potential murder and the bill pending in Springfield is narrowly tailored to stop violent criminals.”...
Todd Vandermyde, a lobbyist for the National Rifle Association in Illinois, said he remains opposed to the legislation because he’s concerned first-time offenders could get trapped in the same net as felons.
Meanwhile, the Illinois Department of Corrections last week warned of the steep cost of getting tougher on gun-possession offenders. The department said it would cost about $1 billion to house an additional 3,860 prisoners over 10 years. Those costs would include the $21,000 annual cost of housing each prisoner plus the cost of building new prisons or retrofitting existing ones to accommodate them....
Vandermyde said he doesn’t have a problem with boosting the penalties for felons caught with guns. But he’s worried about first-time offenders getting three-year prison terms....
Aggravated unlawful use of a weapon involves a person who possesses a gun on his person or vehicle, isn’t on his property, and one of the following circumstances exists: the gun is loaded and immediately accessible; the gun is uncased and unloaded, but the ammunition is immediately accessible; or the person doesn’t have a state Firearm Owner’s Identification Card.
The seven-page University of Chicago Crime Lab report referenced in this press article is available at this link (which a kind and helpful reader sent my way).
In addition, John Maki, Executive Director of the John Howard Association of Illinois, has authored a lengthy response here to the UC Crime Lab report titled "Mandatory Minimums Will Not Solve Chicago’s Epidemic of Gun Violence: A Response to the University of Chicago Crime Lab’s Support of HB2265." Here is how this interesting reponse starts and ends:
As Illinois’ only non-partisan prison watchdog, the John Howard Association (JHA) believes that the state needs to do everything in its power to use evidence-driven laws, policies, and practices to address Chicago’s epidemic of gun violence. This must include the appropriate use of the state’s prison system, particularly for the serious offense of illegal gun possession. However, as we debate how we should use prison, we should do so with a clear understanding that the deeper we send a person into the justice system, the more we trade the possibility of the long-term benefit of rehabilitation for the short-term effect of incapacitation....
JHA opposes HB2265 because we agree with the consensus of experts and practitioners who have found that the wise use of judicial discretion is more effective at preventing crime than mandatory minimum sentences. At the same time, it is clear that Mayor Emanuel’s administration and its supporters will continue to lobby for HB2265. JHA would therefore like to recommend two amendments. First, as supporters have argued that the costs of HB2265 will be minimal and that mandatory minimums could even save taxpayer money by deterring crime, JHA proposes that the City of Chicago should pay for the costs of increased incarceration that stem from the bill, which would otherwise fall entirely on the state. Second, if supporters believe that the law will work, they should demand a three-year sunset be placed upon the bill. This would allow analysts to isolate and evaluate its impact. In three years, if the evidence shows that HB2265 works in the way that the Crime Lab argues it will, no one will oppose re-authorizing it, including JHA.
Friday, October 11, 2013
Record-long political corruption sentence for former mayor of DetroitAs reported in this New York Times article, headlined "Kwame M. Kilpatrick, Former Detroit Mayor, Sentenced to 28 Years in Corruption Case," a remarkable case of political corruption culminated yesterday in a remarkable federal sentence. Here are excerpts from the press account of the sentencing:
Kwame M. Kilpatrick, the former mayor of Detroit, stood before a federal judge on Thursday and apologized for putting the people of his city through a corruption scandal so vast that prosecutors say it helped accelerate Detroit’s march toward bankruptcy. “They’re hurting,” Mr. Kilpatrick said. “A great deal of that hurt I accept full responsibility for.”
They were solemn words from the formerly boisterous figure, a bear of a man at 6 feet 4 inches who many believed would lead Detroit out of its long economic downturn. But on Thursday he stood slouched, wearing a tan prison uniform instead of the flashy suits he once favored. Court officers replaced the entourage of bodyguards that used to follow him around. The diamond that once studded his ear, an emblem of his reputation as the “hip-hop mayor,” was gone.
Then, declaring an end to the bribery and thieving that marked the Kilpatrick administration, Judge Nancy G. Edmunds of United States District Court imposed the sentence prosecutors had sought: 28 years in prison.
Mr. Kilpatrick, 43, was convicted in March of two dozen counts that included charges of racketeering and extortion, adding his name to a list of at least 18 city officials who have been convicted of corruption during his tenure. His punishment ranks among the harshest major state and local public corruption cases. Lawyers for Mr. Kilpatrick said that they intend to file an appeal of the convictions and sentence.
The hearing came at a sobering moment for the city he once led, which is now remaking itself in bankruptcy court as residents wrestle over whom to blame for the fiscal mess. For Detroiters, Mr. Kilpatrick’s meteoric fall — from potential savior of a struggling city to prison-bound symbol of financial mismanagement — may be the closest they will get to holding past leaders accountable for decades of disappointment and poor fiscal decisions....
In 2008, Mr. Kilpatrick resigned after he lied under oath during a police whistle-blower lawsuit and approved an $8.4 million settlement to try to cover it up. After pleading guilty to charges of obstruction of justice, Mr. Kilpatrick served four months in jail and was ordered to pay $1 million to the city. He was soon behind bars again for hiding assets from the court and telling a judge that he could afford to pay only $6 a month in restitution.
The former mayor and Bobby W. Ferguson, a city contractor and a friend, were indicted in 2010 on sweeping federal corruption charges. All told, prosecutors contend that Mr. Ferguson received $73 million worth of city contracts as a result of an extortion scheme that involved Mr. Kilpatrick, netting $9.6 million in illegal profit. Mr. Ferguson was convicted of nine counts and will be sentenced on Friday. “The amount of crime, it was astonishing and it had a huge impact on this city,” Mark Chutkow, one of the prosecutors, said as he left the courthouse on Thursday.
Mr. Kilpatrick’s lawyer, Harold Z. Gurewitz, who pushed for a sentence of no more than 15 years, argued in court that Mr. Kilpatrick was being unfairly targeted as a scapegoat for Detroit’s insolvency, with people trying to “send him out with the sins of the city over the last 50 years.” The sentence, he said in an interview later, was tougher than necessary and stiffer than some people get for violent crimes.
Among some of the highest penalties for recent public corruption convictions, James C. Dimora, former commissioner of Cuyahoga County in Ohio, was sentenced last year to 28 years in prison for racketeering and bribery. A year before, Rod R. Blagojevich, former governor of Illinois, was sentenced to 14 years in prison for convictions that included trying to sell the Senate seat President Obama left open when he went to the White House.
In her ruling on Thursday, Judge Edmunds said her decision was another strong warning to elected officials. “That way of business is over,” she said. “We’re done. We’re moving forward.”
Tuesday, October 08, 2013
What is the "right" sentencing range for aggravated vehicular homicide as a result of drunk driving?The question in the title of this post is prompted by this recent lengthy article from my local Columbus Dispatch, and it is a question perhaps likely be be broadly in the run-up to the scheduled sentencing next week here in Ohio in a a high-profile drunk driving homicide case. The article is headlined "Vehicular homicide sentences not harsh enough, say victims’ families: Others say defendant’s history, remorse should count," and here are excerpts:
When she learned that the drunken driver who killed her 15-year-old son could get no more than two to eight years in prison for aggravated vehicular homicide, Ellenna Houser was shocked....
Cathy Humphries, who struck Austin Houser with her pickup truck a year ago as he walked on a rural route in Logan County and left him there to die, was sentenced in May to eight years in prison — six years for aggravated vehicular homicide and two years for leaving the scene. “Drug dealers get more time than that,” Houser said.
Columbus defense attorney Brad Koffel gets a different reaction to the potential sentence when he speaks to the family members of a client charged with killing someone while driving drunk. “They find it harsh,” he said. “They’ll say, ‘He has no prior record. This wasn’t intentional.’ ”
But Koffel understands that the families of the victims, and those prosecuting such cases, have a different attitude. “If I were the prosecutor, representing the state of Ohio, I would find eight years to be wholly insufficient,” he said. Finding a balance between those positions at sentencing is one of the toughest jobs a judge will ever face, Koffel said.
Franklin County Common Pleas Judge David W. Fais will be in that spot on Oct. 16 when he announces a sentence in an aggravated vehicular homicide case that is drawing national attention.
Matthew Cordle, 22, of Powell, pleaded guilty last month to the charge after posting an online confession that went viral. He admitted that he was driving drunk at 2:40 a.m. on June 22 when he killed 61-year-old Vincent Canzani in a wrong-way crash on I-670 near 3rd Street. In the video, which has garnered more than 2.2 million hits on YouTube, Cordle promises to “take full responsibility” for his actions and begs others not to drink and drive.
Prosecutor Ron O’Brien said taking responsibility in this case means serving the maximum penalty, which his office will request at the sentencing hearing. He is among those who think Ohio’s penalties for causing a death through drunken driving are too lenient.
O’Brien said he has received emails from across the country as a result of the Cordle case. “They’re asking, ‘What’s up with Ohio? How can somebody be totally drunk, driving the wrong way on the freeway, kill someone and the penalty is only eight years?’ And it can be as low as two years,” he said. “I don’t think that’s a fair or appropriate penalty.”
W. Martin Midian, one of Cordle’s attorneys, said a fair sentence for his client, who has no felony record and no previous DUI convictions, is something less than the maximum. “I think if Matt were to receive the maximum sentence, it would send the wrong message about people accepting responsibility for their actions,” he said.
Koffel went further, saying that if Cordle receives the maximum as a first-time offender, “I think he has a very good argument on appeal. Max sentences are to be reserved for the worst of the worst.”...
Those found to be driving recklessly when they cause a fatal crash, for such things as texting behind the wheel or running a red light, are charged with a lower-level felony that has a sentencing range of one to five years in prison.
Ohio’s neighboring states are stricter about drunken drivers who cause a death, according to information compiled by Mothers Against Drunk Driving. A first offense brings a prison term of two to 10 years in West Virginia and five to 10 years in Kentucky. The maximum penalty is 10 years in Pennsylvania and 15 years in Michigan. In Indiana, punishment for a first offense is two to eight years for those with a blood-alcohol content of 0.08 percent to 0.14 percent. Those who test higher can get up to 20 years.
“Ohio is weaker than a lot of states, but we’re not the weakest,” said Doug Scoles, state executive director of MADD. In about half of the states, prison isn’t mandatory, according to MADD’s literature.
The last time Ohio altered penalties for the offense was in 2007. That’s when the legislature passed a law that toughened the sentence for those convicted of aggravated vehicular homicide while drunk who have three or more DUI convictions in the preceding six years. For them, the penalty is 10 to 15 years.
Sunday, September 29, 2013
Boston Globe says "Eric Holder shouldn’t seek death for Dzhokhar Tsarnaev"This new Boston Globe editorial argues that the top US prosecutor ought not seek the punishment of death for the last living Boston Marathon bomber. Here is part of the paper's pitch:
In the raw days after the Marathon bombing in April, Mayor Tom Menino spoke for many Bostonians when he raised the prospect of executing those who were responsible. Though normally a death penalty opponent, Menino said that the barbarity of the attackers, who killed four people and maimed dozens, might sway him.
Now, as surviving suspect Dzhokhar Tsarnaev faces trial, that question looms for federal prosecutors, who are in the midst of a lengthy process to decide by Oct. 31 whether to seek the 19-year-old’s death by lethal injection. It’s certainly understandable why many friends, family, and supporters of the victims hope prosecutors will seek the ultimate vengeance against the man they believe masterminded the bombing along with his older brother, Tamerlan. Still, Attorney General Eric H. Holder Jr. should decide against it....
In addition to the extra cost of capital prosecutions — cases can exceed $10 million — death penalty cases drag on for years, through numerous appeals. Such lengthy proceedings would ensure that the Marathon bombing case lingers in the spotlight, compounding the sense of injury to victims. Many people would feel compelled to defend Tsarnaev on the basis of his youth, lack of past offenses, and being under the influence of his older brother — all factors that would mitigate against a death sentence. Years of proceedings, and their potential culmination in a death sentence, would also give Tsarnaev what he and his brother apparently sought: publicity and notoriety. Much better to let Tsarnaev slip into obscurity in a federal prison cell, and stay there.
It’s possible that prosecutors are keeping the death penalty on the table primarily to use as leverage against Tsarnaev, hoping that he will agree to plead guilty, skip a trial, and accept life imprisonment in order to save his life. Such a strategy raises worries about fairness under any circumstances, since it puts enormous pressure on defendants to give up their right to a trial. In this case, it’s also unnecessary. The evidence against Tsarnaev is overwhelming, and prosecutors should have nothing to fear from bringing the case to trial.
Beyond the details of this particular case, of course, lies the deeper question of whether the death penalty itself is ever right. There is no national consensus on the death penalty, and Holder needs to be sensitive to differences of public opinion. The bombing was a terrorist act aimed at this Commonwealth, where the death penalty has been repeatedly debated and repeatedly rejected. A recent Globe poll found that Boston residents oppose the death penalty for Tsarnaev by a solid margin. Of course, the attorney general should be under no legal obligation to consider the temper of the city. But perhaps it will give him the cover to make the right call. If Massachusetts can reject the death penalty, even after the most awful crimes, so can Holder.
Some recent prior posts:
- Does Boston bombing provide still more support for my federal-only death penalty perspective?
- "Balancing the State and Federal Roles in Boston Bomber Case"
- Bad news for hard-core death penalty fans: Judy Clarke joins defense team for Boston bomber Dzhokhar Tsarnaev
- "The Boston Bomber Should Face The Possibility Of The Death Penalty"
- How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?
- "Boston Bombing Suspect Is Indicted on 30 Counts"
- Will a jury get a chance to embrace or reject death penalty in Boston bombing case?
- Intriguing sparring over federal capital recommendation procedure in Boston bombing case
Did Louisiana really give Corey Ladd "20 years hard labor" for possessing less than an ounce of marijuana?The question in the title of this post is prompted by this recent commentary by Bill Quigley at Dissident Voice headlined "Half Ounce of Pot Gets Louisiana Man Twenty Years in Prison." I have now seen this story of an extreme sentence for a minor marijuana offense reprinted and repeated in various ways via various news sources and blogs, but I cannot find any materials that provide more information or context about this case other than these details reported via the commentary:
While Colorado and Washington have de-criminalized recreational use of marijuana and twenty states allow use for medical purposes, a Louisiana man was sentenced to twenty years in prison in New Orleans criminal court for possessing 15 grams, .529 of an ounce, of marijuana.
Corey Ladd, 27, had prior drug convictions and was sentenced September 4, 2013 as a “multiple offender to 20 years hard labor at the Department of Corrections.”
Marijuana use still remains a ticket to jail in most of the country and prohibition is enforced in a highly racially discriminatory manner. A recent report of the ACLU, “The War on Marijuana in Black and White,” documents millions of arrests for marijuana and shows the “staggeringly disproportionate impact on African Americans.”...
Louisiana arrests about 13,000 people per year for marijuana, 60% of them African Americans. Over 84 percent were for possession only. While Louisiana’s population is 32 percent black, 60 percent of arrests for marijuana are African American making it the 9th most discriminatory state nationwide. In Tangipahoa Parish, blacks are 11.8 times more likely to be arrested for marijuana than whites and in St. Landry Parish the rate of black arrests for marijuana is 10.7 times as likely as whites, landing both parishes in the worst 15 in the country.
In Louisiana, a person can get up to six months in jail for first marijuana conviction, up to five years in prison for the second conviction and up to twenty years in prison for the third. In fact, the Louisiana Supreme Court recently overturned a sentence of five years as too lenient for a fourth possession of marijuana and ordered the person sentenced to at least 13 years....
Arrests and jail sentences continue even though public opinion has moved against it. National polling by the Pew Research Center show a majority of people support legalizing the use of marijuana. Even in Louisiana, a recent poll by Public Policy Polling found more than half support legalization and regulation of marijuana.
Karen O’Keefe, who lived in New Orleans for years and now works as Director of State Policies at the Marijuana Policy Project, said “A sentence of 20 years in prison for possessing a substance that is safer that alcohol is out of step with Louisiana voters, national trends, and basic fairness and justice. Limited prison space and prosecutors’ time should be spent on violent and serious crime, not on prosecuting and incarcerating people who use a substance that nearly half of all adults have used.”
Defense lawyers are appealing the twenty year sentence for Mr. Ladd, but the hundreds of thousands of marijuana arrests continue each year. This insanity must be stopped.
The Louisiana Supreme Court case referenced in this commentary is Louisiana v. Noble, No. 12-K-1923 (La. April 19, 2013) (available here), and the Noble court did in fact rule that Louisiana's Habitual Offender Law demanded imposition of a mandatory prison term of 13.3 years for a defendant who "was convicted of a fourth offense possession of marijuana and adjudicated as a third felony offender based on two prior guilty pleas to possession of cocaine" and even though "defendant supports seven children, two of whom have significant medical problems, and ... all of the defendant’s offenses have been non-violent ... and all involved the possession of small quantities of narcotics."
The Noble case documents that at least some defendants are, despite claims by supporters of the modern drug war, that nobody really serves long terms of imprisonment merely for possessing marijuana. But the opinion in Noble does not reveal just how much much marijuana the defendant in that case possessed, and perhaps the possession offense there involved a significant quantity.
This case involving Corey Ladd surely also involves application of Louisiana's Habitual Offender Law because subsection 4(a) of that law provides a mandatory minimum of 20 years for the "fourth or subsequent felony." And I suspect the sentencing court felt obligated to give the 20-year term because the Noble court reversed another sentencing court for trying to go below the applicable mandatory minimum. But I am still gobsmacked that possessing such a small amount of marijuana in the Bayou could be a felony and in turn require the imposition of a 20-year prison term for a habitual offender.
Cross-posted at Marijuana Law, Policy and Reform
Thursday, September 26, 2013
Second Circuit reverses below-mandatory-minimum sentence for distributing child pornographyThe Second Circuit via a lengthy panel decision today in US v. Reingold, No. 11-2826 (2d Cir. Sept. 26, 2013) (available here), reverses a decision by Judge Jack Weinstein to sentence a young defendant who distributed child pornography below the applicable five-year mandatory minimum term based on the Eighth Amendment. Here is how the majority opinion gets started:
Corey Reingold pleaded guilty in the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge) to one count of distributing child pornography. See 18 U.S.C. § 2252(a)(2). The United States now appeals from that part of the June 21, 2011 judgment of conviction as sentenced Reingold to 30 months’ incarceration. The government contends that the district court erred in refusing to impose the minimum five-year prison term mandated by 18 U.S.C. § 2252(b)(1) on the ground that applying such a punishment to this immature 19-year-old defendant would violate the Cruel and Unusual Punishment Clause. See U.S. Const. amend. VIII. The government further disputes the district court’s Sentencing Guidelines calculations. The district court explained its sentencing decisions both on the record and in a 401-page opinion accompanied by 55 pages of appendices. See United States v. C.R., 792 F. Supp. 2d 343 (E.D.N.Y. 2011). Having carefully reviewed that opinion, the applicable law, and the record as a whole, we conclude that the district court erred in both respects identified by the government. We therefore remand the case to the district court with directions that it vacate the sentence and resentence the defendant consistent with this opinion.
I will not have a chance to review closely the 56 pages of Reingold until late tonight, though a quick skim suggests this ruling is a must-read for any and everyone working on sentencing issues in child pornography cases in the federal courts.
New trial granted for defendant subject to long mandatory sentence in Florida "warning shot" case
As reported in this news report, headlined "Marissa Alexander will get a new trial," today there was a notable development in a notable Florida criminal case that garnered some additional attention in the wake of the George Zimmerman prosecution. Here are the basics:
The relatively short opinions in this case (a majority opinion and a concurrence) can be accessed at this link.
Marissa Alexander, the African-American woman who was sentenced to 20 years for discharging a firearm in Florida despite pleading Stand Your Ground against her husband, will get a new trial. Alexander, 32, said she fired a bullet at the ceiling because she was afraid of her husband. No one was injured. It took 12 minutes for the jury to convict her.
“We reject her contention that the trial court erred in declining to grant her immunity from prosecution under Florida’s Stand Your Ground law,” wrote Judge James H. Daniel, “but we remand for a new trial because the jury instructions on self-defense were erroneous.”
Alexander, who had given birth the week before, testified that after an altercation regarding texts from her ex-husband, she locked herself in the bathroom. Her husband Rico Gray broke through the door, grabbed her by the neck, and shoved her into the door. She ran to the garage, found she couldn’t get the door open, and returned with a gun. When Gray saw the gun, he said, “Bitch, I’ll kill you.” Alexander testified that firing the gun into the air as a warning shot was “the lesser of two evils.”
The jury rejected her self-defense argument, and instead Alexander was sentenced under the “10-20-Life” law, which carries a series of mandatory minimum sentences related to gun crimes. The prosecutor in her case was Angela Corey, who also prosecuted George Zimmerman who was acquitted in the death of Trayvon Martin....
The appeals court judge ruled that the lower court judge improperly put a burden on Alexander to prove that the firing was in self-defense. “The defendant’s burden is only to raise a reasonable doubt concerning self-defense,” Daniel wrote. “The defendant does not have the burden to prove the victim guilty of the aggression defended against beyond a reasonable doubt.” He ordered a retrial. A separate proceeding would determine whether Alexander could be released on bail pending that trial.
Prior related posts:
- Very different case provides a very different (sentencing) perspective on Florida gun laws
- Another obvious mandatory sentencing injustice in Florida "warning shot" case
- Extreme sentence in warning shot case drawing more criticisms of mandatory minimums
Thursday, September 19, 2013
Notable new empirical research exploring legislators, prosecutors and "Expressive Enforcement"A helpful reader altered and recommended to me this notable new article on SSRN authored by Avlana Eisenberg and titled "Expressive Enforcement." Here is the abstract:
Laws send messages, some of which may be heard at the moment of enactment. However, much of a law’s expressive impact is bound up in its enforcement. Although scholars have extensively debated the wisdom of expressive legislation, their discussions have focused largely on enactment-related messaging, rather than on expressive enforcement. This Article uses hate crime laws — the paradigmatic example of expressive legislation — as a case study to challenge conventional understandings of the messaging function of lawmaking. The Article asks: How do institutional incentives shape prosecutors’ enforcement decisions, and how do these decisions affect the message of hate crime laws?
To answer that question, the Article presents original data from the first multi-state qualitative empirical study of hate crime prosecution. The findings help to explain a paradox: in archetypal hate crime cases involving animus directed at a victim’s core identity features — such as race or sexual orientation — prosecutors may decline to include hate crime charges because of statutory incentives, difficulty of proving motive, and concerns about jury reaction. Conversely, hate crime enforcement may be appealing to prosecutors in precisely those cases that are least likely to further the expressive purposes of hate crime laws. After exploring this mismatch, the Article identifies some areas where there may be irreconcilable tensions between the expressive goals of legislators and the incentives of prosecutors and, in other areas, offers recommendations to unify legislative goals with expressive enforcement.
Wednesday, September 18, 2013
US Attorney defends fraud guidelines while others urge reform in USSC eventToday notable events in the federal sentencing reform arena were not confined only to today's U.S. Senate Judiciary Committee hearing on federal mandatory minimums (discussed here and here). Also starting today was a two-day event in NYC in which the U.S. Sentencing Commission is discussing potential reform to the federal fraud guidelines. This Reuters report, headlined "U.S. prosecutor cautions against white-collar sentencing revamp," provides a few notable highlights from the events in NYC:
The U.S. Justice Department opposes a wholesale revamping of white-collar criminal sentences that defense lawyers and some judges have urged, a top federal prosecutor said on Wednesday.
But Melinda Haag, the U.S. attorney in San Francisco, said the department was open to limited changes in white-collar sentencing that could reduce sentences in some fraud cases. The comments came as the U.S. Sentencing Commission is weighing revisions to advisory sentencing guidelines used by judges for securities, healthcare, mortgage and other fraud offenses.
Defense lawyers, the American Bar Association, some judges and others have criticized the guidelines, saying they emphasize financial losses caused by crime over all other factors, sometimes resulting in sentences that are too severe.
Haag, speaking at a symposium on white-collar sentencing in New York, said the Justice Department believes the current guidelines "result in tough but fair sentences in the vast majority of the cases." But she suggested that the department may be open to some changes, saying certain categories of cases, such as securities cases involving frauds on the market, warrant "careful study" by the commission. "Despite our questions and concerns, however, we do agree that in some cases, loss may overstate the seriousness of the offense," Haag said.
A growing number of judges have imposed terms less than prescribed by the guidelines, which became advisory rather than mandatory following a U.S. Supreme Court decision in 2005.
U.S. District Judge Loretta Preska, sitting on a panel with Haag, cited the case of Joseph Collins, a former partner at the law firm Mayer Brown, who was convicted for his role in a fraud at commodities broker Refco Inc. With losses calculated at $2.4 billion, Preska said under the guidelines Collins faced life in prison. She instead sentenced him in July to a year in prison, citing his community service and the fact he didn't financially benefit from the scheme. "This was absurd, absolutely absurd," she said.
Haag said the Justice Department recognized there "may be issues in some high-loss cases." But she said the department didn't believe a wholesale change was needed to the fraud sentencing guidelines or the loss table used to calculate sentences. She said it was a relatively small number of cases that had caused judicial concern. Citing commission statistics, she said 54 percent of economic crime cases involve less than $120,000 in losses and 83 percent involve less than $1 million.
Haag also argued that in some big cases involving investment fraud like Ponzi schemes, judges "don't seem to hesitate in imposing lengthy prison terms, noting the devastation these fraud schemes wreak on other people and the greed that motivated most of the defendants before them."...
In the last 18 months, federal prosecutors have handled investment fraud cases involving 800 defendants and more than $20 billion, she said. For the FBI, investment fraud is now 60 percent of its white-collar case load, she said.
Nonetheless, she said "certain categories of cases warrant careful study by the commission and potentially narrowly tailored amendments" to the fraud sentencing guidelines. Among the suggestions she gave would be for the Sentencing Commission to review how the guidelines treat loss in certain securities fraud cases where a drop in stock value by a few dollars per share can turn into a billion dollar loss.
The Sentencing Project releases "Life Goes On: The Historic Rise in Life Sentences in America"
I received an email alerting me to an important new publication about life and LWOP sentence just released by The Sentencing Project. Here is the text of the email, which includes links to the publication as well as a summry of its key findings:
While serious crime rates in the U.S. have been declining for the last 20 years, the number of prisoners serving life sentences has more than quadrupled since 1984. As documented in our new report, Life Goes On: The Historic Rise in Life Sentences in America, by senior research analyst Ashley Nellis, over 159,000 people were serving life sentences in 2012, with nearly 50,000 serving life without parole.
Key findings from the report include:
In order to reshape our crime policies to facilitaterehabilation, promote public safety, and reduce the high cost of massincarceration, the report recommends eliminating life without parole,increasing the use of executive clemency, preparing persons sentenced to lifefor release from prison, and restoring the role of parole in prisoner release.
- One of every nine individuals in prison is serving a life sentence.
- The population of prisoners serving life without parole (LWOP) has risen more sharply than those with the possibility of parole: there has been a 22.2% increase in LWOP since just 2008.
- Approximately 10,000 lifers have been convicted of nonviolent offenses.
- Nearly half of lifers are African American and 1 in 6 are Latino.
- More than 10,000 life-sentenced inmates have been convicted of crimes that occurred before they turned 18 and nearly 1 in 4 of them were sentenced to LWOP.
- More than 5,300 (3.4%) of the life-sentenced inmates are female.
September 18, 2013 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4) | TrackBack
Florida Supreme Court considers important issues concerning Graham's meaning and reachAs reported in this local piece, headlined "Supreme Court hears juvenile sentencing arguments," the top court in Florida heard oral argument on a very important issues concerning the reach of the Supreme Court's recent Eighth Amendment jurisprudence concerning juvenile sentencing. Here are the details:
In the wake of a 2010 U.S. Supreme Court ruling that upended sentencing guidelines for juveniles, the Florida Supreme Court on Tuesday heard oral arguments in a case involving Shimeeka Gridine, who was sentenced to 70 years in prison for crimes committed when he was 14 years old.
The case is one of several that have surfaced in Florida courts since the U.S. Supreme Court ruled that life sentences without parole for juveniles in non-homicide cases violate the Eighth Amendment, which bans cruel and unusual punishment.
Gridine, now 18, pleaded guilty to attempted first-degree murder, attempted armed robbery and aggravated battery after he shot a man in 2009 while trying to rob a Jacksonville gas station. He was sentenced to 70 years for the attempted murder and 25 years for the armed robbery, with the sentences to run concurrently.
Assistant Public Defender Gail Anderson argued Tuesday that amounts to a life sentence. A mandatory minimum sentencing requirement makes Gridine ineligible for gain time for good behavior on the 25-year sentence. And under Florida’s “truth-in-sentencing” law requiring offenders to serve at least 85 percent of their prison sentences, he must then serve at least 85 percent of the remaining 45 years of the 70-year sentence. “Assuming he got all the gain time he was eligible for on the remainder of the sentence, he would be 77 years old before he was released,” Anderson said. “And I think that, under any reasonable construction, is a life sentence.”...
But Assistant Attorney General Kellie Nielan said the Graham ruling provided no time limits. “(The) Graham (decision) has said that someone needs review sometime within their life,” she told the court. “They need an opportunity for release within their life. It doesn’t say when.”
“Aren’t we condemning him from the outset?” asked Justice James E.C. Perry. “I thought he had to have a meaningful review at the outset.”
“No, Graham does not require that,” Nielan replied. “And Graham only applies to the life sentences — or, if you want to extend that to de facto life sentences, which are going to be sentences of at least 50 years. So a juvenile who is sentenced to 40 years is not entitled to any review.”
Justice Charles Canady said that was hypothetical. “We’ve got cases here where it seems like by just about any reasonable understanding of what a life sentence is, this case falls into the equivalent of a life sentence,” he said.
In Gridine’s 2009 trial, Judge Adrian G. Soud of the 4th Judicial Circuit in Duval County ruled that the teen was not protected by the Graham decision “because he had a clear and premeditated intent to kill. … Just because this juvenile defendant failed in his criminal and deadly endeavor does not preclude this court from sentencing the defendant commensurate with the defendant’s intent — the same intent possessed by a juvenile murderer.”
After the hearing, Anderson said she was hoping the justices would find unconstitutional the 85-percent law that abolished parole as it applies to Gridine and make him eligible for parole after 25 years. She said another possibility is that the high court could order that Gridine be resentenced. “That’s what the district courts have been doing — just ordering a resentencing,” she said. “But that just leaves everybody in the same limbo they’ve been in up to now.”
Since the Graham decision, the Florida Legislature has taken up bills that would have allowed life sentences for juveniles with the possibility of release after 20 years if they show signs of rehabilitation. So far, however, none has passed.
This report suggests that the Florida Supreme Court could find two ways to avoid declaring the long juvenile sentence here unconstitutional, but it also suggests that at least some of the Florida Justices may not be so eager to do so.
Gearing up for Senate hearing on "Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences"In just a few hours, on Tuesday September 18, 2013 at 10am, as detailed at this official webpage, there will be Hearing before the United States Senate Committee on the Judiciary on “ “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences." Here is the official agenda/hearing list:
- The Honorable Rand Paul, United States Senator, State of Kentucky
- Marc Levin, Policy Director, Right on Crime Initiative at the Texas Public Policy Foundation
- The Honorable Brett Tolman, Shareholder, Ray Quinney & Nebeker
- The Honorable Scott Burns, Executive Director, National District Attorneys Association
I am expecting and hoping that there will be written testimony from some or all of these witnesses posted via the Senate website within the few hours, and I am planning to watch the webcast of the hearing (and perhaps even live-blog some of it here).
Though I expect lots of interesting discussion in this hearing, I am surprised and a bit disappointed that there is no Department of Justice representative. Also, the absence of anyone from the U.S. Sentencing Commission is also significant. But perhaps these institutions, as well as others, may be submitting written testimony as the debate over federal mandatory minimum sentencing reform kicks into another gear.
Not suprisingly, the folks at FAMM are already all geared up for today's events inside the beltway, as showcased here at FAMM's website.
Just a few recent and older related posts:
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- "Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support."
- Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013
- Justice Safety Valve Act gets bipartisan introduction in House of Representatives
- "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
UPDATE: Sure enough, not long after finishing this post I received an e-mail with links to this news release titled "Sentencing Commission Issues Statement For Senate Judiciary Committee Hearing On Federal Mandatory Minimum Penalties: Calls for Congressional Action Including Reduction of Mandatory Minimum Penalties for Drug Offenses." The news release references this 13-page statement from the USSC Chair, Judge Patti B. Saris, which begins this way:
Chairman Leahy, Ranking Member Grassley, and distinguished members of the Committee, thank you for providing me with the opportunity to submit this statement on behalf of the United States Sentencing Commission about mandatory minimum sentences in the federal criminal justice system.
We are particularly pleased that the Judiciary Committee is addressing this vital issue that has been a key focus for the Commission for several years. The bipartisan seven-member Commission unanimously agrees that mandatory minimum sentences in their current form have led to unintended results, caused unwarranted disparity in sentencing, and contributed to the current crisis in the federal prison population and budget. We unanimously agree that statutory changes to address these problems are appropriate.
Friday, September 13, 2013
Corporate official gets above-guideline sentence for conspiracy to hide safety violationsA helpful reader alerted me to this federal sentencing story from West Virginia which provides a useful reminder that federal judges sometimes use their increased post-Booker sentencing discretion to impose sentences above recommended guideline ranges (and may do so even for a defendant who has pleaded guilty and cooperating with authorities). Here are the notable particulars from a lengthy article about a notable white-collar sentencing that followed a high-profile workplace disaster:
A former longtime Massey Energy official will spend 3 1/2 years in prison for his admitted role in a decade-long conspiracy to hide safety violations from federal safety inspectors. David C. Hughart, 54, of Crab Orchard, was sentenced Tuesday afternoon to 42 months in jail and three years of supervised release after he pleaded guilty to two federal charges as part of an ongoing federal probe of Massey's safety practices.
U.S. District Judge Irene Berger ordered Hughart to serve a full year more than the high end of the 24- to 30-month recommended under advisory federal sentencing guidelines. The judge said the stiffer sentence was needed to account for the safety risks Hughart's crimes created and to serve as a warning to other mining officials not to put production before safety. "This sentence will promote respect for the law," Berger said.
The Hughart sentencing is another step forward as U.S. Attorney Booth Goodwin and his top assistant, Steve Ruby, continue what is likely the largest criminal investigation of a coal-mine disaster in modern times. The probe started with the deaths of 29 miners on April 5, 2010, in an explosion at Massey's Upper Big Branch Mine in Raleigh County, and has so far prompted four convictions and expanded well beyond Upper Big Branch....
Hughart is cooperating with prosecutors, having pleaded guilty to one felony count of conspiracy to defraud the government by thwarting U.S. Mine Safety and Health Administration inspections and one misdemeanor count of conspiracy to violate MSHA standards.
During a plea hearing in February, Hughart had implicated former Massey CEO Don Blankenship in the conspiracy, and Hughart's family has said Hughart is being wrongly scapegoated while Blankenship and other top Massey executives have faced no criminal charges. "He was a slave to this industry, and Don Blankenship will never see the inside of a courtroom," Hughart's son, Jonathan Hughart, told reporters after Tuesday's sentencing hearing.
Through his lawyer, Blankenship has denied any wrongdoing. And on his blog, Blankenship has said Hughart lied about him and was fired from Massey for drug use and stealing from the company.
Prosecutors have said that former executives and board members of Massey "may be, or may become" targets in the ongoing federal criminal investigation....
Earlier Tuesday, Hughart's $10,000 personal recognizance bond was revoked by U.S. Magistrate Judge R. Clarke VanDervort after Hughart was arrested on Aug. 30 on charges of possession of painkillers and anti-anxiety medication without a valid prescription. Hughart's bond required him to comply with all local, state and federal laws....
While Hughart hasn't been convicted of the drug charges, the arrest increased his recommended sentence under federal advisory guidelines by nine months. Hughart's lawyer, Michael R. Whitt, had urged Berger to issue a lighter sentence, arguing that Hughart's crimes could not be linked to any mining injury -- let alone to the Upper Big Branch Disaster -- and that his client was caught up in the "corporate culture" at Massey.
Whitt told Berger that Hughart's life has been ruined, with him going from an affluent lifestyle and a six-figure mine official salary to losing his home and becoming essentially destitute. "I think he has the message already," Whitt said. "He already knows without spending another day in jail."
Prosecutors, though, had asked for a stiff sentence, noting the "risk to human life and health" created by the conspiracies that Hughart participated in at Massey. "The defendant risked the lives and health of hundreds of coal miners," Ruby told Berger during Tuesday's hearing.
Previously in the Upper Big Branch probe, a former miner at the operation, Thomas Harrah, was sentenced to 10 months in jail after he admitted to faking a foreman's license when he performed key mine safety examinations at the mine between January 2008 and August 2009, and then lied to investigators about his actions.
Berger sentenced a former Upper Big Branch security director, Hughie Elbert Stover, to 36 months in jail after Stover was convicted of two felonies: making a false statement and obstructing the government probe of the mine disaster.
And in January, the judge sentenced former Upper Big Branch superintendent Gary May to 21 months in jail and a $20,000 fine after he pleaded guilty to plotting to skirt safety rules and cover up the resulting hazards....
During Tuesday's hearing, Hughart apologized for his actions and told Berger he had learned from his early days as a miner that "advance notice" of inspections was the way things were done. "I accepted that as the practice, and I understand now it is a serious issue, and it is against the law," Hughart said.
Berger noted previous evidence in the Upper Big Branch cases that suggested MSHA inspectors knew about -- and perhaps even cooperated with -- mine operators having pre-inspection notice. "Advance notice was apparently a common practice in the industry," Berger said. "It's difficult to believe that the only people who were unaware of these practices were the MSHA inspectors."
Terry Ellison, whose brother, Steve Harrah, died at Upper Big Branch, attended Tuesday's court proceedings. "I came for the 29 miners," Ellison said. "I don't want them to be forgotten. There was no reason they should have been killed that day."
September 13, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack
Wednesday, September 11, 2013
Will second federal death sentence stick for cop killer Ronell Wilson?The question in the title of this post is prompted by this latest news about a high-profile (and already long-running) federal capital case. The New York Times headline for this story is "For the Second Time, a Killer of Two Detectives Is Sentenced to Death," and here are the details:
They sat in silent expectation on Tuesday afternoon, scores of people on the long wooden benches in the largest and most hallowed space in the federal courthouse in Brooklyn, all to witness the rare spectacle of a man, Ronell Wilson, being sentenced to death.
There were the police officers who had known the two undercover detectives killed by Mr. Wilson on Staten Island in 2003; members of Mr. Wilson’s family and the family of one of his victims; prosecutors and observers....
The judge, Nicholas G. Garaufis of Federal District Court in Brooklyn, turned to the prosecutors and then Mr. Wilson’s defense team. They declined to speak. And then he turned to Mr. Wilson, who stood and faced those relatives of the victims who were present.
“As I said in my previous allocution, how deeply sorry I am for the pain that I caused upon you and your family,” he said haltingly, referring to statements he made at his first sentencing. “I remain with the same feeling as before. I would like to end on this note: error is human but to forgive is divine.”
He used the rest of his time to criticize his lawyers, who were sitting on either side of him. He has 14 days to file a notice of an appeal.
At the trial in July, jurors learned how Mr. Wilson, 31, killed the detectives, James V. Nemorin and Rodney J. Andrews, shooting each in the back of the head during a botched gun sting operation. Prosecutors presented evidence that Mr. Wilson, whose previous death sentence, in 2007, was struck down, seemed to escape punishment during his time in jail, where he intimidated weaker inmates and sneaked into private rooms to have sex with a correction officer, with whom he fathered a child.
The jury sent him back to death row. H e is the only person in New York to be sentenced to the federal death penalty in more than 50 years. On Tuesday, Judge Garaufis read from a lengthy statement before formally issuing the sentence. He pointed to the “viciousness with which Mr. Wilson murdered Detectives Nemorin and Andrews and Mr. Wilson’s recent behavior in prison.” He said Mr. Wilson showed a “continuing lack of remorse and disregard for authority.”...
Outside court, a lawyer for Mr. Wilson, David Stern, approached several news cameras. “This demonstrates how little we’ve evolved since biblical times,” Mr. Stern said of the sentence. “This is a really sad day for me because of my failure.”
Sounds to me like one (of surely many) arguments that will be pursued in future appeals will be the claim that Wilson's lawyers were constitutionally ineffective. I doubt such claims will prevail, but I also doubt such claims will be conclusively rejected for a decade or longer. Federal capital justice may be sure in this case, but it certainly is not swift.
Tuesday, September 10, 2013
You be the federal sentencing judge: "Newlywed Admits to Pushing Husband off Cliff"The title of this post is drawn from the headline of this notable new local "real crime" story that is all the buzz this morning in lots of national media outlets. Based on the reported facts reprinted below, I am very interested in hearing reader instincts about what might be a fitting federal punishment for this killer bride (who is in federal custody because she committed her crime at a national park):
The wife of a 25-year-old Kalispell man, who was found dead in Glacier National Park in July, is now charged with his murder. Jordan Linn Graham, 22, appeared in federal court in Missoula on Monday on a charge of second degree murder in the death of her husband, Cody Lee Johnson.
Court documents allege the newlywed wife pushed her husband off a cliff in Glacier National Park during an argument just a week after they were married. Charging documents reveal Jordan Linn Graham told a friend she was having second thoughts about getting married to Cody Lee Johnson. Graham then told her friend she intended to discuss the matter with Johnson that night, Sunday, July 7. She followed up with a text message that read, "But dead serious. If you don't hear from me at all again tonight, something happened."
The next day, Monday, July 8, Johnson was reported missing when he failed to show up for work. Around 8:30 p.m. on Thursday, July 11, a Glacier National Park ranger was dispatched to the Lake Mcdonald Camp Store for a visitor reporting a dead body. The affidavit states that Graham was identified as the person who told the ranger she found a dead body.
Johnson's body was recovered the next day below a popular viewpoint on the Going-to-the-Sun Road called "The Loop." Graham was interviewed by FBI special agents on July 16, which was nearly one week after the disappearance of her new husband. It was then that she admitted to law enforcement that she lied about Johnson's death.
She told the FBI agent she and her husband were arguing on July 7 as they walked the Loop Trail. Documents say at one point, she turned to walk away, but Johnson grabbed her arm. Graham said she turned around and removed his hand from her arm. She went on to say that "she could have just walked away, but due to her anger, she pushed Johnson with both hands in the back and as a results, he fell face first off the cliff." During an initial interview with law enforcement, Graham said that Johnson left the house late with friends in a dark-colored car late on the night in question.
Graham faces a federal charge of second degree murder. If convicted, she could face life in prison.
The U.S. Sentencing Guidelines provide a base offense level of 38 for second-degree murder in section 2A1.2, which corresponds to an advisory guideline sentencing range of just under 20 to 25 years (assuming no significant criminal history). But I would expect a guilty plea here which alone, thanks to an acceptance of responsibility downward adjustment, could reduce the advisory range to 14 to 18 years. That said, the defendant's prior lies about the crime could lead to an obstruction of justice enhancement, and it is especially interesting to consider whether federal prosecutors could or should also argue for another offense level upward adjustment here based on abuse of a position of private trust.
Of course, the defendant might be able to secure a guilty plea to only a voluntary or involuntary manslaughter charge, which could and would alone dramatically reduce the applicable guideline sentence range (as evidenced here and here), perhaps even to a guideline level so low that the advisory range might even permit a within-guideline sentence involving an alternative to incarceration. And, of course, with the federal sentencing guidelines only advisory, a federal sentencing judge could surely develop under various 3553(a) factors various arguments to justify a sentence perhaps as high as life and as low as straight probation.
Though I am not teaching my upper-level sentencing course until next semester, I sincerely hope (and somewhat expect) that this case will stay in federal court and stay in the headlines for some time. As the discussion above is meant to highlights, this case serves as an interesting and accessible example of just how much discretionary sentencing play there is in the "joints" of the modern federal sentencing system for both litigants and judges.
UPDATE: The FBI affidavit which provided the basis for charges in this case is now available via this link.
September 10, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22) | TrackBack
Wednesday, September 04, 2013
How could and should folks view (or "spin") latest results from national survey on drug use and health?
Released today were the findings from the 2012 National Survey on Drug Use and Health by the U.S. Department of Health and Human Services. Helpfully, thanks to our modern digital world, everyone can look at the full reported results from HHS here and a collections of "highlights" at this link. Or one can look at these headlines from some early major media reports:
- From ABC News here, "Drug Use Drops for America's Youth, Rises in the Over 50 Crowd"
- From CBS News here, "New US drug survey: Marijuana and heroin increasing"
- From The Hill here, "Federal survey shows heroin use up significantly"
- From USA Today here, "More Americans are using marijuana"
As these headlines highlight, there are lots of ways to view the latest survey data. (Moreover, because the stigma associated with marijuana use has declined with evolving laws and policy perspectives, I cannot help but wonder if the measured increase in reported use of marijuana might, at least to some degree, reflect an increase in the willingness of persons to admit to marijuana use rather than an actual increase in use.)
Usefully, because the 2012 National Survey on Drug Use and Health also explores alcohol and tobacco use, as well as reported rates of "substantance dependence/abuse," there are a number of notable (though less reported) seemingly positive stories emerging from this latest government report concerning drug use and abuse over the last decade. Specifically (and quoting now directly from the HHS highlights):
- Between 2002 and 2012, past month use of any tobacco product among persons aged 12 or older decreased from 30.4 to 26.7 percent... [and] the rate of past month tobacco use among 12 to 17 year olds declined from 15.2 percent in 2002 to 8.6 percent in 2012.
- Between 2002 and 2012, the percentage of youths aged 12 to 17 with substance dependence or abuse declined from 8.9 to 6.1 percent.
- The number of past year cocaine initiates declined from 1.0 million in 2002 to 639,000 in 2012. The number of crack cocaine initiates declined from 337,000 to 84,000 during this period.
- The rate of current marijuana use among youths aged 12 to 17 decreased from 8.2 percent in 2002 to 6.7 percent in 2006, remained unchanged at 6.7 percent in 2007 and 2008, then increased to 7.9 percent in 2011. The rate declined to 7.2 percent in 2012.
- Past month, binge, and heavy drinking rates among underage persons declined between 2002 and 2012. Past month alcohol use declined from 28.8 to 24.3 percent, binge drinking declined from 19.3 to 15.3 percent, and heavy drinking declined from 6.2 to 4.3 percent.
I am inclined to ultimately view the data emerging from 2012 National Survey on Drug Use and Health as evidence that, all things considered, Americans are somewhat healthier now than we were a year ago and a lot healthier now than we were a decade ago. But most of the headlines I see from the media seem to be emphasizing reported increases in the use of certain substantances rather than reported decreases in the use of other substances.
Florida prosecutors considering pursuing death penalty for doctor deemed responsible for overdose deathsI am always looking for notable and interesting modern cases to use with my 1L Criminal Law class when covering the topic of causation. Thanks to this local story, headlined "Former West Palm Beach doctor could face death penalty in patients' deaths," it looks like Florida prosecutors not only have presented me with a good classroom candidate, but also are talking up a possible punishment that could ensure the case garners national attention. Here are the details:
State prosecutors have filed court documents announcing their intent to seek the death penalty against a former West Palm Beach doctor facing two counts of first-degree murder for the overdose deaths of his patients.
Authorities with the state attorney's office said Tuesday they have not made a final decision about whether to pursue the ultimate punishment for former West Palm doctor John Christensen, 61, but want to keep that option open. The case will go before the office's death penalty committee, which is expected to review it and decide whether to pursue the penalty within the next month, Chief Assistant State Attorney Brian Fernandes said. "This is a case that's potentially eligible for the death penalty," he said. "We want to make sure that we preserve our rights."
If the state does pursue a death sentence against the doctor, it would be highly unusual. Just a handful of Florida physicians have faced homicide charges for the overdose deaths of their patients, and the majority have been manslaughter cases.
West Palm Beach defense attorney Grey Tesh, who until last month represented Christensen, said he was surprised when the state sent its notice of intent to seek the death penalty. The doctor's new attorney, Richard Lubin, did not return a call seeking comment Tuesday. "At least in Palm Beach County, I don't know of any doctor who has faced the death penalty on a case like this," Tesh said.
In 2002, West Palm Beach doctor Denis Deonarine became the first in the state to be indicted for first-degree murder in the death of a patient who was prescribed painkiller OxyContin. He was ultimately acquitted of first-degree murder charges, and released from prison in December, according to the state Department of Corrections. After the trial ended, one juror told the Sun Sentinel the jury ultimately believed the patient was responsible for his own death.
Christensen, who operated medical offices in West Palm Beach, Port St. Lucie and Daytona Beach, was arrested in July, after a two and-a-half year investigation that focused on the deaths of 35 of his patients. He's facing multiple charges, including the two counts of first-degree murder for prescribing oxycodone, methadone and anti-anxiety drugs to two patients who later overdosed....
Tesh said he expects it will be an uphill battle for the state to get a conviction against Christensen, making the death penalty irrelevant. He said it will be difficult to connect the deaths to him, noting that one of the patients had other substances in her system when she died. "I would be surprised if he's convicted," Tesh said. "The evidence is just not going to be there, not to be proved beyond reasonable doubt."
Even without knowing much about the particulars of Florida homicide law, I share the perspective that state prosecutors are likely to face an uphill battle getting a first-degree murder conviction, let alone a death verdict, from a jury in this kind of case. But I also can identify lots of potential (utilitarian) benefits flowing from just a prosecutorial decision to talk up possible capital charges in this case.
As this very post reveals, simply mentioning the possibility of a death sentence ensures this case gets a lot more attention, and that attention should (and likely will) lead many more doctors in Florida and elsewhere to be at least a bit more careful when writing scripts for potent and potentially lethal prescription drugs. In addition, as in many other cases involving lots of human carnage, the prospect of capital charges might encourage a guilty defendant to plead guilty to lesser (and more fitting) charges. (Of course, some may view the potentially coercive impact of capital charges in a case like this to be an injustice, but I suspect prosecutors might well concluse that such charges are a fitting prescription for this kind of case.)
September 4, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (11) | TrackBack
Friday, August 30, 2013
"Protesters Demand Montana Judge Resign Over Rape Sentencing"The title of this post is the headline of this New York Times report on the continuing controversy over what seems to be a disturbingly lenient state sentence for a child rape conviction. Here are some of the latest developments in a story that seems to have become a cause for CNN and other media outlets:
Angry that a Montana judge sentenced a former teacher who had admitted to raping a 14-year-old student to only a month in jail, several hundred people gathered outside the Yellowstone County Courthouse in Billings on Thursday, demanding that the judge resign. The victim committed suicide three years after the rape, just before her 17th birthday.
The decision by Judge G. Todd Baugh of State District Court on Monday to suspend the teacher’s 15-year prison term, combined with remarks he made about the rape victim during the proceeding, has sparked outrage in Montana and around the country, with online petitions gathering more than 30,000 signatures in a few days. During the sentencing, Judge Baugh said the victim “seemed older than her chronological age” and was “as much in control of the situation” as the teacher.
The death of the victim, Cherice Morales, who was a student of Stacey Dean Rambold, contributed to delays in the prosecution of the case, which was originally filed in 2008.
Judge Baugh later apologized for his remarks, telling The Billings Gazette: “I don’t know what I was thinking or trying to say. It was just stupid and wrong.” He defended the one-month sentence, however, and in doing so made a remark that further angered many protesters. “Obviously, a 14-year-old can’t consent,” he said, but then added: “I think that people have in mind that this was some violent, forcible, horrible rape. It was horrible enough as it is just given her age, but it wasn’t this forcible beat-up rape.”
Marian Bradley, who heads the Montana chapter of the National Organization for Women and helped organize the rally on Thursday, said that the judge needed to step aside and that state lawmakers needed to consider mandatory sentencing for convicted rapists. “It’s highly unusual to get several hundred people to show up for a protest in Billings,” said Ms. Bradley, a longtime rape crisis volunteer. “Everyone here is outraged.”...
Mr. Rambold, 54, a former technology teacher at Billings Senior High School, pleaded guilty in April to a felony count of sexual intercourse without consent. The charges were first brought in 2008, and his prosecution was deferred in 2010 after Ms. Morales’s suicide raised concerns among prosecutors that a conviction would be difficult to obtain without the victim’s testimony.
Under a three-year agreement, Mr. Rambold attended an outpatient program for sex offenders, and if he had completed it, the charges would have been dismissed. But after he violated the terms of the program last fall, prosecutors brought charges against him again earlier this year and he pleaded guilty to one count, which brought him back to court for sentencing on Monday.
Though I am troubled when folks start calling for a judge's head based on limited information about a seemingly misguided sentencing decision, it is understandable why the judge's sentencing decision here has prompted outrage given the the facts that are publically known about this case. Interestingly, as now reported in this new Billings Gazette article, "Judge G. Todd Baugh, who has drawn international criticism for sending a convicted rapist to prison for only 30 days, issued a sentencing addendum Thursday afternoon, offering a formal explanation of his decision in the case." That three-page addendum may not end the protests, in part because Judge Baugh says in this Addendum that some key facts influencing the sentencing decision that cannot be publically disclosed.
Long-time readers will not be surprised to hear me suggest that Montana lawmakers not respond to one ugly case by passing new mandatory sentencing statutes. In lots of other settings, we can and do reasonably expect and hope that appellate review will provide a means to correct very wrong trial court rulings. Intriguingly, this new CNN article reports that the local prosecutor here is considering an appeal and seems to believe that there already was a statutory provision that would have required at least a two-year prison term for the defendant here. If the sentencing decision causing outrage and protests cannot be reviewed under existing Montana law, I hope that problem becomes the focal point of any legislative reform rather than the creation of new mandatory minimum sentencing statutes.