Wednesday, March 30, 2016
GOP frontrunner Donald Trump says "some form of punishment" would be needed for women who have abortions if procedure is made illegal
This recent article at The Crime Report, headlined "Trump On Crime: Tough Talk, Few Specifics," highlighted how hard it is to figure out Donald Trump's policy position on various criminal justice issues (in which I was quoted):
Most experts we talked to say it’s hard to distinguish the rhetoric from the policies. “[The Trump campaign] has not issued a platform yet, so I’m not sure that I’d take anything that he’s been saying as an actual criminal justice policy,” said Inimai M. Chettiar, director of the Brennan Center’s Justice Program.
“What’s really frustrating, is that (he’s) like a cardboard candidate; you know what his pitch is but you don’t know anything else beyond that,” said Prof. Laurie Levenson of Loyola Law School. “And maybe he doesn’t either.”
Berman suggests half-jokingly that there’s a “simple answer” to the question of what Donald Trump believes about criminal justice. “Who the hell knows?” he said.
On many policy issues, Trump has sidestepped detailed responses by pointing to his experience in real estate and suggesting that good dealmakers keep their positions ambiguous at the start of any negotiation. That seems to apply to his approach to justice as well. Asked about specific criminal justice reforms, Trump often changes the subject back to supporting police or vague answers about needing to be “tough.”
But today GOP frontrunner Trump is making headlines for talking about criminal punishment in an especially controversial setting. This FoxNews piece, headlined "Trump says abortion ban should mean punishment for women who have procedure," provides the details:
Republican presidential front-runner Donald Trump said Wednesday said that if abortion were illegal in the United States, then women who have the procedure should be punished. Trump made the comments during a taping of an MSNBC town hall that will be aired later Wednesday.
Host Chris Matthews pressed Trump to clarify, asking him whether abortion should be punished and who ultimately should be held accountable. “Look, people in certain parts of the Republican Party, conservative Republicans, would say, ‘Yes, it should,’” Trump said. The candidate later put out a statement saying: “This issue is unclear and should be put back into the states for determination.”...
When asked specifically at the town hall what he thought, the New York businessman answered, “I would say it’s a very serious problem and it’s a problem we have to decide on. Are you going to send them to jail?”
“I’m asking you,” Matthews prompted.
“I am pro-life,” Trump said.
Matthews pressed on, asking again who should be punished in an abortion case if it were illegal.
“There has to be some form of punishment,” Trump said.
“For the woman?” Matthews asked.
“Yeah,” Trump responded, adding later that the punishment would “have to be determined.”
His rivals seized on the remarks. Ohio Gov. John Kasich later told MSNBC “of course women shouldn’t be punished.” An aide to Texas Sen. Ted Cruz tweeted: “Don't overthink it: Trump doesn't understand the pro-life position because he's not pro-life.”
With all due respect to the statement made by an aide to Senator Ted Cruz, it seems to me that Donald Trump actually understands — and may be taking more seriously than many other politicians — the oft-stated pro-life position that life begins at conception and that abortion it at least somewhat akin to homicide.
The National Right to Life Committee, the nation's oldest and largest pro-life organization, states expressly here that in the US "over 40 million unborn babies have been killed in the 40 years since abortion was legalized and more than 1.2 million are killed each year" and that "medical science has known conclusively that every individual's life begins at the moment of fertilization." Pro-Life Action League states expressly here that "killing an unborn child is inherently wrong, and therefore can never be justified regardless of circumstances. It is no more just to kill an unborn child in order to avoid hardship than it would be to kill a toddler to avoid hardship. Because the unborn child is unseen, it is easier for society to condone killing him or her, though this is morally indistinguishable from killing any child at any stage of development." The American Life League similarly states expressly here that "abortion is a direct attack on a preborn child which kills; it is murder."
If one genuinely believes that any abortion involves the intentional "killing" of a human life, that it is "morally indistinguishable from killing any child at any stage of development," and that "it is murder," and thus an act which should be criminally prohibited (like all other forms of intentional homicide), then I would hope that one ought also be genuinely committed to criminally punishing, at least to some extent, any and every person intentionally involved in this act of intentional killing which "morally indistinguishable from killing any child at any stage of development."
In modern society, we threaten to punish all sorts of persons (at least with fines) for all sorts of petty crimes like overtime parking and illegal copying of a DVD and loitering. I believe I am understanding and showing respect to the views and claims of persons who are pro-lifer when I surmise they consider any intentional abortion to be a societal wrong that is far more serious than, say, overtime parking or loitering. If that is right, then I also think it would be fair to say that Donald Trump is actually understanding and showing respect for the views and claims of persons who are pro-life when he suggests that women intentionally involved in obtaining illegal abortions ought to be subject to at least "some form of punishment."
Sunday, March 27, 2016
"Cities begin to challenge a bedrock of justice: They’re paying criminals not to kill"
The title of this post is the headline of this lengthy Washington Post article about an alternative sentencing program sure to stir questions and controversy. Here are some of the details (with a key line emphasized):
RICHMOND, Calif. — The odds were good that Lonnie Holmes, 21, would be the next person to kill or be killed in this working-class suburb north of San Francisco. Four of his cousins had died in shootings. He was a passenger in a car involved in a drive-by shooting, police said. And he was arrested for carrying a loaded gun.
But when Holmes was released from prison last year, officials in this city offered something unusual to try to keep him alive: money. They began paying Holmes as much as $1,000 a month not to commit another gun crime.
Cities across the country, beginning with the District of Columbia, are moving to copy Richmond’s controversial approach because early indications show it has helped reduce homicide rates. But the program requires governments to reject some basic tenets of law enforcement even as it challenges notions of appropriate ways to spend tax dollars.
In Richmond, the city has hired ex-convicts to mentor dozens of its most violent offenders and allows them to take unconventional steps if it means preventing the next homicide. For example, the mentors have coaxed inebriated teenagers threatening violence into city cars, not for a ride to jail but home to sleep it off — sometimes with loaded firearms still in their waistbands. The mentors have funded trips to South Africa, London and Mexico City for rival gang members in the hope that shared experiences and time away from the city streets would ease tensions and forge new connections. And when the elaborate efforts at engagement fail, the mentors still pay those who pledge to improve, even when, like Holmes, they are caught with a gun, or worse — suspected of murder.
The city-paid mentors operate at a distance from police. To maintain the trust of the young men they’re guiding, mentors do not inform police of what they know about crimes committed. At least twice, that may have allowed suspected killers in the stipend program to evade responsibility for homicides.
And yet, interest in the program is surging among urban politicians. Officials in Miami, Toledo, Baltimore and more than a dozen cities in between are studying how to replicate Richmond’s program. The District of Columbia is first in line.
Implementing the Richmond model has emerged as a central fight this year between D.C. Mayor Muriel E. Bowser and the D.C. Council. Bowser (D) is opposed to the strategy, arguing that the city should instead use its resources to fund jobs programs and that there is little independent analysis of the Richmond program. The mayor did not include money for it in her proposed 2017 budget released Thursday, and Police Chief Cathy L. Lanier said she is skeptical of the need for the Richmond-style program and has not seen sufficient data to verify its results.
She and Kevin Donahue, Bowser’s deputy mayor for public safety, question the veracity of Richmond’s claims of having saved so many of the city’s most violent offenders, since mentors — and not police — pick the participants and there has not been a control group used to measure outcomes. “There’s never been a real evaluation of the program,” Lanier said. “They didn’t design the program to allow it to be evaluated,” Donahue added.
But this month, the D.C. Council unanimously approved the idea as the best response to a surge of violent deaths that rocked the city last year. D.C. Council member Kenyan R. McDuffie (D-Ward 5) has promised to shift money from the mayor’s other law-enforcement priorities to launch the program. He said the successes in Richmond cannot be ignored by city leaders serious about reducing crime. That’s because five years into Richmond’s multimillion-dollar experiment, 84 of 88 young men who have participated in the program remain alive, and 4 in 5 have not been suspected of another gun crime or suffered a bullet wound, according to DeVone Boggan, founder of the Richmond effort....
Richmond’s decision to pay people to stay out of trouble began a decade ago during a period of despair. In 2007, Richmond’s homicide tally had surged to 47, making it the country’s sixth-deadliest city per capita. In the 20 years prior to that, Richmond lost 740 people to gun violence, and more than 5,000 had been injured by a bullet. Elected leaders of the heavily African American city of about 100,000 began treating homicides as a public health emergency....
Operation Peacemaker Fellowship is working with its fourth class of recruits, and [Boggan] no longer needs to wow participants with money upfront. Dozens of former fellows on the streets of Richmond — alive and not in jail — are his best advertisement, he said.
Those in the program begin by drafting a “life map” and setting goals — such as applying for a job, going back to school or communicating better with family. They meet with facilitators who, unbeknown to the young men, are psychologists or sociologists. Together, they talk through issues in what amounts to stealth therapy. If they remain engaged for six months, meeting with mentors several times a week, they start to receive monthly payments between $1 and $1,000, depending on their level of participation. The maximum amount paid is $9,000 over the 18-month fellowship. The program has handed out $70,000 a year, on average, since 2010, Boggan said.
Boggan believes that travel is another key to the program’s success. He sets aside $10,000 per fellow for trips that are often the first time participants have left the state or the country. But fellows must agree to partner with someone they have either tried to kill or who attempted to kill them. “Wild, right?” Boggan says. “But they get out there and realize, ‘Hey, this cat’s just like me.’ ” Boggan’s measure of success: No fellows who have traveled together have been suspected in subsequent shootings against one another.
Boggan and his staff are used to questions — and criticism — about the money. How do they know it doesn’t go to drugs? Or bullets? They maintain that the money is an indispensable tool, a way to keep kids engaged long enough to make a difference in their lives. “This is controversial, I get it,” Boggan said. “But what’s really happening is that they are getting rewarded for doing really hard work, and it’s definite hard work when you talk about stopping picking up a gun to solve your problems.”...
Many details of how the District would replicate Richmond’s program have yet to be determined, but one aspect is clearly more complicated than in Richmond. While the California strategy relies on private donors to fund the stipends and travel, the District would probably use roughly a half-million dollars annually in taxpayer money. Asked whether he could justify the expense if it came from the city’s general fund, Richmond Mayor Tom Butt was uncertain. “I’d try really hard to find outside funding,” he said.
I fully understand the how controversial this program could be if framed as a "cash for killers" program that use taxpayer moneys to provide cash rewards to the most violent offenders simply for making efforts not to keep killing. But, as the first phrase highlighted above is meant to suggest, if this program is framed as a public health initiative that helps keep young people alive and healthly for minimal costs, then this program could look and should sound much more palatable to taxpayers. Of particular note, the latest DC budget proposal under the "Health and Human Services" line item, allocates $800,000 to something called the "Joyful Foods initiative." The early success of the Peacemaker Fellowships in Richmond, California suggests that devoting that money to reducing gun violence in DC may contribute much more to health and human services than making sure food in the District is viewed as joyful.
Not to be overlooked, especially when we focus on a town like DC where political money flows from private sources to all sort of political advocacy groups, it would seem very possible that enterprising individuals might be able to fundraise effectively for this cause. For example, a little research has revealed that both the NRA and the Brady Campaigns spend over $3,000,000 annually lobbying about firearm laws and policies. If both groups could simply be convinced to spend 10% of these lobbying budgets on a DC gun violence prevention program like Peacemaker Fellowships, this would itself provide $600,000 in resources for this kind of programming.
Saturday, March 26, 2016
Wouldn't (severe? creative?) alternatives to incarceration be the best response to animal cruelty convictions?
The question in the title of this post is prompted by this local story of a high-profile sentencing of a high-profile defendant convicted of multiple misdemeanor counts of animal cruelty. The piece is headlined "Former Raven Terrence Cody sentenced to nine months in Baltimore County animal cruelty case," and here are the details:
Baltimore County judge sentenced former Ravens player Terrence Cody on Thursday to nine months in jail in an animal cruelty case that drew interest across the country. Cody, 27, was convicted in November of multiple misdemeanors in connection with the death of his dog, Taz, last year, as well as two misdemeanor drug charges. Prosecutors said Taz starved to death.
Cody faced the possibility of more than two years of incarceration. More than 5,000 people signed an online petition urging Judge Judith C. Ensor to impose the maximum sentence. Ensor said that she did not discount the petition but that she had to make an independent decision based on the case. "My responsibility is to listen and to make the best decision I can," she said at the sentencing hearing.
Defense attorney Joe Murtha acknowledged that Cody neglected Taz but said that Cody loved the animal and didn't intend for it to die. He said that Cody was emotionally incapable of caring for the dog and that he suffers from depression. "His level of depression is so significant that he's become just isolated," said Murtha, who added that his communication with his client has been limited because of Cody's depression.
Prosecutor Adam Lippe discounted the idea that Cody was depressed. He argued for the maximum amount of jail time — 905 days. "I'm sure every defendant awaiting sentencing is depressed," Lippe said.
Lippe said during the trial that the dog starved to death at Cody's former home in Reisterstown over a period of at least a month. Cody testified at the trial that he believed Taz was suffering from worms.
Cody spent $8,000 to buy and import Taz, a Canary mastiff, from Spain. He took the animal to a Reisterstown animal hospital a few hours before it died. The dog, which once weighed at least 100 pounds, was down to less than 50 pounds at that point. Cody — whose nickname at the University of Alabama was Mount Cody — was drafted by the Ravens as a defensive lineman in 2010. The team released him when he was indicted last year.
After the trial last year, Cody was acquitted of two felony counts of aggravated animal cruelty. Ensor, who presided over the bench trial, said Thursday she was convinced that Cody did not torture Taz intentionally. "I remain firm" in that belief, she said.
The judge also sentenced Cody to probation before judgment for illegally possessing an alligator and for possessing drug paraphernalia. Police found a gas-mask bong and a 6-foot-long green glass bong in the home. She imposed suspended sentences for several counts, including a marijuana charge. She also sentenced Cody to 18 months of supervised probation and said he must undergo mental health treatment. During the probation period, he is not allowed to own or possess an animal. Cody will serve the sentence at the Baltimore County Detention Center in Towson.
Cody's girlfriend, Kourtney J. Kelley, 28, was also convicted in the animal cruelty case. She was sentenced last month to 60 days and has since been paroled. She was found guilty of five counts in connection with neglecting Taz. Cody, wearing a black hoodie and jeans, briefly addressed the court, saying he accepted responsibility. He also said he believed Kelley should not have been punished in the case....
Lippe said he was satisfied with the sentence. He said Cody had other dogs that were "fat and happy," but for some reason he treated Taz differently. "I can't explain to you why he decided to kill this animal," Lippe said. "It makes no sense at all."
I am huge aminal lover within a family which has always cared greatly about pets both usual (e.g., my dog and cat are hanging with me as I type this) and unusual (e.g., I have a bunch of parrot, angel fish and hermit crab stories). Consequently, I fully understand how emotional so many folks get about animal cruelty and why there is often strong support for imposing the harshest possible sentences on those persons who get convicted of animal cruelty crimes.
Nevertheless, as the question in the title of this post suggests and to parrot the words of the local prosecutor in this case, it really makes so sense at all to me to view lengthy terms of incarceration as the most efficacious response to these sorts of crimes. Specifically, to focus on this case, did prosecutor Adam Lippe really think the citizens of Baltimore would be better off if former NFL player Terrence Cody served nearly 3 years in a local jail (at significant taxpayer expense) rather than, say, spending the next few years trying to get back into the NFL to make large sums of money that could be donated to animal protection societies or working publicly on helping animals as a part of community service program?
I fully understand the potential incapacitative benefits of incarceration for dangerous people with a history of seriously risky or harmful behaviors. But unless there is strong reason to believe Terrence Cody is a real danger to others, I think the the citizens and animals of Baltimore could and would be much better served through severe and creative alternatives to incarceration in a case like this. But, problematically in the US and as part of our transformation into "incarceration nation," it seems that nearly all prosecutors and most members of the general public embrace the notion that the only way to be tough is through extended (and costly) periods of incarceration.
Thursday, March 24, 2016
Fascinating issues emerging in run up to federal sentencing of former House Speaker Dennis Hastert
This new Politico article, headlined "New Hastert accuser emerges: Judge acknowledges that the case against the former House speaker involves alleged sex abuse," flags some of the notable issues emerging as the federal sentencing of a notable former member of Congress approaches. Here are the details:
A previously unidentified victim of alleged sexual abuse by former House Speaker Dennis Hastert has come forward to federal prosecutors and may seek to testify next month when Hastert faces sentencing in federal court in Chicago. The new accuser, labeled as "Individual D" in court papers, is not the "Individual A" to whom Hastert agreed to pay $3.5 million, setting off a series of events that led to the former speaker pleading guilty to illegally structuring $900,000 used in payments to the man.
Up until now, public court records and courtroom proceedings in the case have danced around the fact that the case stems from alleged sexual impropriety, reportedly from Hastert's years as a teacher and wrestling coach. But U.S. District Court Judge Thomas Durkin gave up that pretense Tuesday and made clear that the case is linked to the widely reported allegations of sexual misconduct.
"Let's not beat around the bush. If 'Individual D' wants to come in and talk about being a victim of sexual abuse, he's entitled to do so because that informs my decision about the history and characteristics of the defendant. It's that simple," Durkin said, according to a transcript POLITICO reviewed of a brief court hearing.
Hastert entered his guilty plea last October, acknowledging that he withdrew nearly $1 million in cash in increments of less than $10,000 to avoid reporting requirements, paying the money out to a longtime associate. The indictment against Hastert doesn't name the person he was paying, referring to him only as "Individual A."
Durkin agreed Tuesday to delay Hastert's sentencing by about three weeks at the government's request so that a witness who may wish to testify at the hearing can appear. "Individual D" is "not 100 percent certain he wants to [testify] but has been moving in that direction," prosecutor Steven Block told the judge.
The government apparently did not know of "Individual D" when the indictment was filed against Hastert last May. But sources said investigators were aware of at least two living victims at that time. Since the indictment, Hastert has been mum about the sexual abuse allegations that have swirled in the press. However, Hastert defense attorney John Gallo said Tuesday that the former speaker doesn't plan to contest "Individual D"'s claims.
Durkin also said he's willing to hear at sentencing from a Montana woman, Joanne Burdge, who claims her late brother had a sexual relationship with Hastert while her brother was an equipment manager on the wrestling team Hastert coached. "If the sister of a victim of sexual abuse wants to come in and talk about her interactions with her brother and talk about that, that is something that would inform my decisions about the history and characteristics of the defendant," the judge said.
Hastert's lawyers opposed delaying the hearing and said the proposed witnesses aren't victims under federal law because the crime Hastert pled guilty to was a bank reporting violation. "They're not classic victims, and so they have no statutory entitlement to appear," Hastert attorney Thomas Green said during Tuesday's hearing. He also said their submissions should be taken in writing, not through live testimony.
But Durkin rejected that position. "If they want to come in and they're willing to testify as live witnesses, they're absolutely entitled to do so, and the government's entitled to call them as live witnesses," the judge said.
In an interview, Burdge confirmed her desire and plan to speak at the sentencing. "I'm going to it. I feel like it's crossing the finish line and I need to do it," she told POLITICO Wednesday. "I've waited over 30 years for this."
In Hastert's plea deal, the defense and prosecutors agreed that sentencing guidelines call for the former speaker to receive between zero and six months in custody. However, after his guilty plea last year, the 74-year-old Hastert suffered a stroke and sepsis. Given the health issues, it's unclear whether Durkin will sentence Hastert to any jail time at all.
Some prior related posts:
- You be the federal defense attorney: would you urge Dennis Hastert to cut a plea deal?
- Did former House Speaker Hastert get a sweetheart sentencing deal from federal prosecutors?
March 24, 2016 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6)
Wednesday, March 16, 2016
"The Emerging Eighth Amendment Consensus Against Life Without Parole Sentences for Nonviolent Offenses"
The title of this post is the title of this article authored by Bidish Sarma and Sophie Cull recently posted on SSRN. Here is the abstract:
As the nation moves away from the policies that built a criminal justice system bent on mass incarceration, it is an appropriate time to reassess a sentencing regime that has doomed thousands of individuals convicted of nonviolent offenses to die in prison. Over the last thirty years, those policies have resulted in more than 3,000 offenders across the country receiving life sentences without the possibility of parole when they were convicted of a nonviolent crime. While it seems clear to many today that this harsh punishment is inappropriate for offenses that involved no physical harm to other people, the individuals serving these sentences continue to face life and death in prison. The Eighth Amendment offers these offenders an opportunity to demonstrate the unconstitutionality of their punishment to the Supreme Court — the institution in the best position to redress these excessive sentences of a bygone era.
This Article analyzes the claim that there is a national consensus against life without parole sentences for individuals convicted of non-violent offenses. First, it defines the problem, exploring how and why some offenders received life without parole sentences for nonviolent crime. This entails a look at the historical development of a series of harsh sentencing policies that made nonviolent offenses punishable by life without the possibility of parole. The historical developments are then traced through to current times to explain the seismic shift in how leaders in all three branches of government approach punishing low-level and nonviolent crimes.
This Article situates the punishment in the Eighth Amendment context. How have the Supreme Court's previous Eighth Amendment rulings framed the relevant constitutional questions? And how can a change in the way the Court considers the link between the nature of the offense and the challenged punishment create new possibilities? This Article explores how treating individuals sentenced to life without parole for nonviolent offenses as a discrete category based on the nature of the crimes can alter the Eighth Amendment framework that the Court will use to determine the punishment's constitutionality. The unfavorable "gross disproportionality" cases that have previously been considered by the Court do not need to govern the claim and, therefore, do not foreclose the possibility that the Constitution itself prohibits these sentences.
After exploring how to understand the constitutional claim in a way that brings the Supreme Court's categorical approach to bear (rather than the gross disproportionality approach), this Article assesses the factors the Court considers in its consensus-based categorical test. It sets out, and then evaluates, the various indicators of consensus upon which the Court relies: the number of jurisdictions that legislatively authorize a punishment; the number of sentences actually imposed; and the degree of geographic isolation. It also evaluates the various considerations that assist the Court in making an independent judgment of the punishment. Ultimately, based on binding Eighth Amendment precedent, sufficient evidence is available now to enable the Court to strike down life without parole sentences for nonviolent offenses. In other words, there is an emerging consensus that the Court should recognize.
Tuesday, March 15, 2016
US Sentencing Commission hearing on proposed immigration and other guideline amendments
Tomorrow, as detailed at this webpage with the official agenda, the US Sentencing Commission is holding a public hearing to receive testimony from invited witnesses on proposed amendments to the federal sentencing guidelines. This event is being streamed live, and can be watched at this link. I am hopeful that, as is the usual USSC practice, this webpage with the official agenda will eventually provide links to any and all submitted written testimony of the scheduled witnesses.
Most of the conceptual and technical debate about guideline amendments this cycle are to be focused on the immigration guidelines, which have been subject to an array of criticisms over the years. I will be especially interested to see what federal judges, practitioners and advocates have to say concerning the amendments that have been proposed by the USSC in this important arena. As federal sentencing fans likely know, immigration cases are a huge part of the total federal criminal docket, especially in border states. Thus, any significant changes to the immigration guidelines is sure to have significant ripple effects throughout the entire federal criminal justice system.
Monday, March 14, 2016
Could three seemingly simple laws really reduce US gun deaths by more than 90 percent?
The question in the title of this post is prompted by this CNN report from late last week about some recent notable empirical research. The CNN piece is headlined "Study: 3 federal laws could reduce gun deaths by more than 90%," and here are excerpts (with a few links from the original):
Passing federal laws that require universal background checks for firearm purchases, background checks on ammunition purchases and firearm identification could reduce the rate of U.S. gun deaths by more than 90%, according to a new study. "We wanted to see which restrictive gun laws really work, as opposed to saying 'restrictive laws work,' and figure out if we are pushing for a law which might not work," said Bindu Kalesan, assistant professor of medicine at Boston University and lead author of the study, which was published on Thursday in The Lancet.Researchers arrived at the projection by looking at the number of gun-related deaths in every state in 2010 and the types of laws that existed in those states in 2009, including restrictive laws, such as background checks and child access prevention laws, and permissive laws, such as stand-your-ground laws. They took into account differences in rates of gun ownership, unemployment and homicides that did not involve guns deaths. Out of the 25 existing state laws that Kalesan and her colleagues studied, nine were associated with lower rates of gun-related deaths.The researchers found the largest effects for universal background checks, which were associated with a 39% reduction in death, and ammunition background checks, which were associated with an 18% reduction in death. Laws around firearm identification, which make it possible to determine the gun that fired a bullet, were associated with a 16% reductions in deaths.
Researchers projected that federal laws expanding background checks for firearms purchases would reduce the U.S. gun death rate by 57%, while background checks for ammunition purchases would cut gun death rates by 81% and firearm identification would reduce the rate by 83%. The researchers said it would take many years to lower the rates so far. Although a federal policy known as the Brady Law requires background checks on individuals who want to buy a firearm from a licensed dealer, it leaves a large gap, as an estimated 40% of firearms are acquired through unlicensed sellers, such as some online and at gun shows....
The researchers found that nine of the 25 laws they analyzed were linked to higher rates of gun-related deaths. Another seven laws did not seem to have an impact one way or the other on gun-related deaths. Some of the laws that were linked with greater numbers of gun related deaths came as a surprise to the researchers. For example, bans on assault weapons, such as semi-automatic guns, were associated with a 15% increase in mortality....
In an editorial published with the study, Harvard School of Public Health Professor David Hemenway said the study was "a step in the right direction" to understand the scientific evidence about policies to reduce gun violence. But, he said, cutting mortality rates so dramatically is more complicated than simply implementing background checks for firearms and ammunition. "That result is too large -- if only firearm suicide and firearm homicide could be reduced so easily," Hemenway wrote.
Although there is good evidence that state laws requiring universal background checks, as well as handgun-purchaser licensing or permit requirements, reduce homicides and suicides, the current study does not add to the evidence base, said Daniel Webster, director of the Johns Hopkins Center for Gun Policy and Research, who was not involved in the current study. Webster recently carried out a study in which they found a 1995 Connecticut law requiring firearm purchasers to have a license was linked to a sharp drop in gun-related murders in the state. For that study, he and his colleagues compared murder rates in Connecticut with similar states.
The problem with the current study, Webster said, is that it compared the number of deaths between all states, which could vary in many more ways than the authors accounted for, such as differences in culture, race and ethnic makeup, poverty rates and access to mental health care. "Not surprisingly, the findings don't make much logical sense when it comes to gun policies other than the finding that universal background checks are protective," Webster said. For example, it is not clear why there would be such a large association, as the study found, between firearm identification laws and reductions in gun-related deaths, he added.
Sunday, March 13, 2016
"Why We Would Spare Walter White: Breaking Bad and the True Power of Mitigation"
The title of this post is the title of this interesting-looking article authored by Bidish Sarma and recently posted on SSRN. Here is the abstract:
What if Walter White had been captured by the federal authorities? Considering that he committed the murders of many individuals and orchestrated many more in the course of building and running his global meth trade, the prosecution would be able to seek the ultimate punishment against him. But, would a jury give him the death penalty? Walt’s gripping journey stirred within viewers a range of complex emotions, but even those revolted by his actions must concede that it is extraordinarily difficult to envision a random collection of twelve people unanimously agreeing that he deserves a state-sanctioned execution. Indeed, it seems that many of us actually rooted for Walt throughout the series, even when we struggled to understand why.
This Essay explores the answer to the question of why we would spare Walter White from the death penalty. Its exploration underscores the critical importance of “mitigation” — a capacious term that refers to evidence introduced by capital defense lawyers to persuade jurors to hand down something less harsh than a death sentence.
Breaking Bad, through its masterful construction of its core narrative, situated us to empathize with Walt, to view him as someone we could understand, to feel about him the way we might feel about a friend or colleague or neighbor. Whether we argued vociferously in online forums that his actions were nearly always justified or simply watched with a suppressed but distinct hope that he might emerge as a partially redeemed man, many of us never condemned Walt. We did not want him to die an undignified death at someone else’s hands. In fact, we were relieved that death came to him on his own terms. And, if he had been captured, we would not have sent him to the death chamber. Knowing Walt — understanding his “mitigation” — bent us towards mercy.
To start, this Essay explains how a capital trial unfolds and sets out the factors that jurors must take into account when they decide whether to choose death for a convicted capital defendant. After establishing the basic framework for the death-determination in Part I, this Essay focuses on Walter White’s hypothetical penalty phase in Part II. It describes both the “aggravating” evidence the prosecution would use to persuade jurors that death is the appropriate punishment and the “mitigating” evidence the defense would use to persuade jurors that a sentence less than death is appropriate. Part II concludes with an explanation of why a jury likely would not sentence Walter White to die.
Part III steps back to identify distinct conclusions that we could draw from viewers’ prevailing willingness to ride with Walt until the end. It concludes that it would be unwise to dismiss Walt as a fictitious outlier. Rather than ask ourselves what makes Walt’s particular case for mercy special, we should ask ourselves how the show managed to make him so real. Breaking Bad’s storytelling proved so powerful that the show’s writers were themselves amazed that viewers continued to stand by Walt’s side through it all. If we would spare Walter White, surely we would spare many others facing capital punishment. But to get there, we need to do more than hear that they have struggles and triumphs of their own; we need to walk with them on their journeys. We must feel like we did when the last episode of Breaking BadI began — wondering exactly how things will end, but unwilling to bring that end by our hands.
March 13, 2016 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)
Friday, March 11, 2016
"Who Watches the Watchmen? Accountability in Federal Corporate Criminal Prosecution Agreements"
The title of this post is the title of this paper recently made available via SSRN and authored by Michael Patrick Wilt. Here is the abstract:
The Department of Justice entered into hundreds of deferred and non-prosecution agreements (DPAs and NPAs) with corporations over the last twenty years, and continues to increase the use of these agreements every year. However, there is no academic scholarship that explores whether the DOJ has grounded these criminal settlements in traditional criminal sentencing procedures. Specifically, do these agreements – which can often include hundreds of millions of dollars in penalties – follow the carefully considered principles of the U.S. Sentencing Guidelines for Organizations?
This article considers this question in light of the public choice theory of criminal procedure and concludes that the DOJ is not utilizing the Sentencing Guidelines in a manner consistent with basic notions of government accountability in the criminal justice system. The article uses data collected from over three hundred deferred and non-prosecution agreements and finds that only a small percentage include an analysis of a monetary penalty based on the Sentencing Guidelines. The government’s use of a non-traditional process to resolve corporate criminal cases should be concerning in the absence of an institutional check such as the Sentencing Guidelines. The article urges the DOJ to adopt standardized procedures for future criminal settlements, including a demonstration of the Sentencing Guidelines analysis typically found in plea agreements.
Tuesday, March 01, 2016
Via 6-2 vote, SCOTUS upholds broader interpretation of child-porn mandatory minimum provision
The first official SCOTUS opinion handed down without Justice Scalia as a member of the Supreme Court in three decades just happened to be an intriguing little sentencing opinion: Lockhart v. US, No. 14-8358 (S. Ct. March 1, 2016) (available here). Justice Sotomayor wrote the opinion for the Court on behalf of six Justices, and it begins this way:
Defendants convicted of possessing child pornography in violation of 18 U. S. C. §2252(a)(4) are subject to a 10-year mandatory minimum sentence and an increased maximum sentence if they have “a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” §2252(b)(2).
The question before us is whether the phrase “involving a minor or ward” modifies all items in the list of predicate crimes (“aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct”) or only the one item that immediately precedes it (“abusive sexual conduct”). Below, the Court of Appeals for the Second Circuit joined several other Courts of Appeals in holding that it modifies only “abusive sexual conduct.” The Eighth Circuit has reached the contrary result. We granted certiorari to resolve that split. 575 U. S. ___ (2015). We affirm the Second Circuit’s holding that the phrase “involving a minor or ward” in §2252(b)(2) modifies only “abusive sexual conduct.”
Justice Kagan, joined by Justice Breyer, writes an extended dissent that kicks off with pop-culture references sure to be highlighted by many in social media:
Imagine a friend told you that she hoped to meet “an actor, director, or producer involved with the new Star Wars movie.” You would know immediately that she wanted to meet an actor from the Star Wars cast — not an actor in, for example, the latest Zoolander. Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.” Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California? And consider a law imposing a penalty for the “violation of any statute, rule, or regulation relating to insider trading.” Surely a person would have cause to protest if punished under that provision for violating a traffic statute. The reason in all three cases is the same: Everyone understands that the modifying phrase — “involved with the new Star Wars movie,” “in New York,” “relating to insider trading” — applies to each term in the preceding list, not just the last.
That ordinary understanding of how English works, in speech and writing alike, should decide this case. Avondale Lockhart is subject to a 10-year mandatory minimum sentence for possessing child pornography if, but only if, he has a prior state-law conviction for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” 18 U. S. C. §2252(b)(2). The Court today, relying on what is called the “rule of the last antecedent,” reads the phrase “involving a minor or ward” as modifying only the final term in that three-item list. But properly read, the modifier applies to each of the terms — just as in the examples above. That normal construction finds support in uncommonly clear-cut legislative history, which states in so many words that the three predicate crimes all involve abuse of children. And if any doubt remained, the rule of lenity would command the same result: Lockhart’s prior conviction for sexual abuse of an adult does not trigger §2252(b)(2)’s mandatory minimum penalty. I respectfully dissent.
I am going to resist the urge to speculate concerning which opinion Justice Scalia might have been likely to join were he still alive today, especially given that the late, great Justice was a fan of ordinary understanding and the rule of lenity, but not a fan of legislative history, in the interpretation of federal criminal statute. I am also going to resist blogging a lot more about this case unless something jumps out as distinctly blogworthy when I have a chance to review the opinions more closely in the days ahead.
Monday, February 29, 2016
"Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a State law?"
The question in the title of this post is the question I have been asking again and again since the US Supreme Court decided in Heller and McDonald that the Second Amendment secured an individual right to keep and bare arms that was to be enforced in a manner comparable to other rights enumerated in the Bill of Rights. It also happened to be the question that Justice Clarence Thomas asked the federal government during oral argument today in Voisine v. United States.
As highlighted by a whole bunch of press coverage spotlighted here at How Appealing, it is notable simply that Justice Thomas spoke up at oral argument after having been silent in that setting for a decade. But I trust regular readers will not be surprised to hear that I am excited that Justice Thomas decided he had to speak up to ask what I think is the very hard question about the meaning and reach of the Second Amendment that lacks a very good answer if Heller and McDonald are serious about the need to treat the Second Amendment seriously like all other rights enumerated in the US Constitution's Bill of Rights.
Not only did Justice Thomas ask this important question toward the tail end of oral argument in Voisine, he followed up with a First Amendment analogy that I find pretty compelling:
JUSTICE THOMAS: [L]et's say that a publisher is reckless about the use of children, and what could be considered indecent [placement in an ad] and that that triggers a violation of, say, a hypothetical law against the use of children in these ads, and let's say it's a misdemeanor violation. Could you suspend that publisher's right to ever publish again?
MS. EISENSTEIN: Your Honor, I don't think you could suspend the right to ever publish again, but I think that you could limit, for example, the manner and means by which publisher...
JUSTICE THOMAS: So how is that different from suspending your Second Amendment right?
Critically, even though I do not believe the government here had any satisfactory answers for Justice Thomas's tough Second Amendment questions, the Justice was not even making his arguments as forcefully as he could have in the context of the federal criminal prosecution at issue in Voisine. Critically, Voisine is not a case in which someone previously convicted of a state "reckless" misdemeanor is now seeking a legal declaration that he has Second Amendment rights. Rather, Stephen Voisine is a schnook who was subject to a federal felony prosecution (and as much as 10 years in federal prison) simply for possessing a rifle (while apparently hunting a bald eagle!?!?) because a number of years earlier he pleaded guilty to a Maine domestic violence misdemeanor.
For the record, I am not a big fan of Maine schnooks who in the past were involved in a domestic incident and years later go out hunting bald eagles. But I am even less of a fan of the creation of new jurisprudential doctrines that would allow the federal government to bring a felony prosecution of an individual engaged in what might be otherwise constitutionally protected activity simply based on a long-ago misdemeanor violation of a State law. That is the reality of what is going on in Voisine, and even folks not supportive of Second Amendment rights should be concerned that a case like Voisine could end up casting poor light on other constitutional protections if his conviction gets upheld in this case.
Some prior related posts:
- Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
- "Why Can’t Martha Stewart Have a Gun?"
- North Carolina Supreme Court finds state constitutional right for some felons to bear arms
- "Should pardoned felons have gun rights?"
- Notable new Alaska appellate decision on denying gun rights to non-violent felons
- "Convicted Felon Sues State Over Right To Bear Arms"
- Fourth Circuit suggests people must be "responsible" to get full Second Amendment protection
- Might restoration of felon gun rights actually reduce recidivism?
- Should NRA care more about gun rights for non-violent felons or those accused of domestic violence?
- "Is the Supreme Court only willing to work at the fringes of the Second Amendment?"
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
- Without much to say about the Second Amendment, SCOTUS gives broad reading to federal firearm possession crime
SCOTUS taking on array of criminal justice cases this week in which Justice Scalia's absence will again be consequential
The Supreme Court this week hears oral argument in a trio of criminal justice cases this week. Because all three cases strike me as involving relatively quirky/narrow issues, I am not expecting to get any blockbuster rulings from any of them (especially with a now short-staffed Court). Via SCOTUSblog, here are links to the cases being heard today and tomorrow with the question presented:
Voisine v. United States: (1) Whether a misdemeanor crime with the mens rea of recklessness qualifies as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9); and (2) whether 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) are unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution.
Williams v. Pennsylvania: (1) Whether the Eighth and Fourteenth Amendments are violated where a state supreme court justice declines to recuse himself in a capital case in which he had personally approved the decision to pursue capital punishment against the defendant in his prior capacity as an elected prosecutor and continued to head the prosecutors’ office that defended the death verdict on appeal, and where he had publicly expressed strong support for capital punishment during his judicial election campaign by referencing the number of defendants he had “sent” to death row, including the defendant in the case now before the court; and (2) whether the Eighth and Fourteenth Amendments are violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive.
Nichols v. United States: (1) Whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals.
Because Williams involves an Eighth Amendment case and involves the death penalty, I suspect it will get the most press attention and probably even most of my attention after today's oral argument. But, in part because Williams involves an Eighth Amendment case and involves the death penalty, I am already pretty confident which Justices are likely to be more or less sympathetic to the capital defendant's claims on appeal.
In contrast, both Voisine and Nichols involve questions of statutory interpretation of federal crime statutes in politically fraught settings: Voisine involves the mix of domestic violence and guns, Nichols involves the tracking of sex offenders abroad. Both the specific legal issue before the Court and the context in which it arises makes me uncertain how various justices are likely to approach the cases at oral argument and in an eventual ruling. In both cases, though, the defense side likely is quite sorry to see Justice Scalia's chair empty because he was among the most consistent and forceful voices for the rule of lenity and other principles to limit the reach of government powers in the interpretation of federal criminal justice statutes.
Thursday, February 25, 2016
Acknowledging and reflecting on the costs, both economic and emotional, that flow from proper implementation of Miller retroactively
This local article from Florida, headlined "Killer's brain development at issue in re-sentencing," provide a significant and sobering (and ultimately incomplete) account of the challenges many courts in many states are to face as they comply with the SCOTUS mandates in Miller and Montgomery that require the resentencing of any and every teen killer previously given a mandatory LWOP sentence. Here are the basic details about this local case:
Maddie Clifton's killer will have his brain development reviewed by an expert before his re-sentencing hearing, a judge decided Thursday. Joshua Phillips, now 31, was convicted in the 1998 murder of 8-year-old Maddie and was sentenced to life without parole. At the time of the murder, Phillips was 14....
The U.S. Supreme Court ruled in 2012 that automatic life without parole sentences for juveniles are unconstitutional. In 2015, the Supreme Court said that law applies to previous cases and that it is retroactive ....
“We have a duty to re-sentence the man and give him a proper opportunity,” Judge Waddell Wallace said in court Thursday.
Phillips' attorney, Tom Fallis, filed two motions with the court: one for a new sentencing hearing and another to have the court cover the costs of calling new experts to determine the proper sentencing. Both motions were granted.
Fallis said some of the medical expertise from Phillips' original trial is no longer relevant, because of current research into juvenile psychology. "We're going to need a lot of experts," Fallis said. "This is going to be a very long hearing when it's set, and there will be evidence from what's happened in the last 20 years, what's happened in prison. I suspect there may be experts on prison life and how it affected a 14-year-old' who's now 30 some odd years old' and so the court needs to be educated. And the way you do that is through experts."
The state argued that calling new specialists and expert could be “absurd” and costly, but Wallace agreed to hiring a new expert and said the findings will be essential to the case, because of Phillips' brain development.
Police said Phillips, Maddie's neighbor, stabbed her and clubbed her to death in his San Jose area home. He hid her body under his waterbed in his room. Phillips' mother discovered the body a week later, after a massive search for the missing girl. Phillips was convicted a year later.
I submitted amicus briefs in both Miller and Montgomery arguing for the Eighth Amendment rules as adopted and applied in those case, and I think it appropriate that this defendant finally have a chance for a discretionary sentencing hearing after he was decades ago mandatorily given an LWOP sentence for a crime committed at age 14. And, though I am not quite sure this defendant really needs " a lot of experts" funded by the state to proceed with a proper resentencing, I also think it appropriate that the judge in this case recognized the need for giving the defense some additional resources to conduct a sound "Miller" resentencing.
That all said, I also think it appropriate for any and everyone like me who approved of the results in Miller and Montgomery to note and cope with the considerable costs that taxpayers and individuals are now going to have to endure. Court resources are always finite, both in terms of time and money, and this press story highlights that it seems a significant amount of the limited court resources are now going to have to be devoted to the very challenging task of figuring out what now is a fair and effective sentence for "Maddie Clifton's killer," Joshua Phillips. Moreover, and not mentioned in this story, I can only begin to imagine the emotional challenges that resentencing in this case will create for any and everyone connected to both the defendant and the victim.
Though I continue to believe that mandatory juve LWOP sentencing is very wrong, this story is a reminder that it did have the notable virtue of being very easy.
February 25, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)
Wednesday, February 24, 2016
"Judging Federal White-Collar Fraud Sentencing: An Empirical Study Revealing the Need for Further Reform"
The title of this post is the title of this notable new paper now available via SSRN authored by Mark Bennett, Justin Levinson and Koichi Hioki. Here is the abstract:
White-collar federal fraud sentencing has long been fraught with controversy and criticism. As a result, the U.S. Sentencing Commission’s intensive multi-year examination of sentencing for fraud crimes generated tremendous interest among the Department of Justice, criminal defense organizations, the academy, and a wide-range of advocacy groups. In November 2015, the Commission’s publicly announced proposed amendments became law without Congressional change. These amendments, while commendable in process and purpose, fall short of sorely needed reforms that would serve to realign white-collar fraud punishments with legitimate penal justifications. This Article portrays the recent historical tension between the Federal Sentencing Commission and federal judges, and presents the results of an original empirical study that demonstrates clearly the continuing need for significant reforms.
The Article begins by framing the problem of fraud sentencing within modern criminal law, and examines the statistical reality of economic crime sentencing since the 1980s, which has been increasingly characterized by downward departures from harsh recommend minimum sentences. It then details an original empirical study we conducted on 240 sitting federal and state judges, just as the new sentencing guideline amendments were passing untouched through Congress. This study presented judges with a realistic pre-sentence report for a multimillion-dollar economic crime, and asked judges to sentence the defendant. We found that a remarkable 75% of federal district court judges sentenced the defendant to the precise minimum sentence of a possible seven year range. The study further compared the judges’ sentences across judicial cohorts and evaluated the role of judges’ individual sentencing philosophies, age, religion, and the political party of the appointing president. Despite a range of interesting differences in sentencing philosophy and self-reported attitudes found based on these factors, federal judges’ overwhelming agreement regarding minimum sentencing largely transcended their other differences.
The Article considers the results of the study in the context of the revised guidelines as well as scholarly reform suggestions, and offers five specific proposals to reform the guidelines, beginning with significant cuts to the so-called “loss table” as well as the specific offense characteristics that frequently lead to near-nonsensical sentencing guidelines.
February 24, 2016 in Data on sentencing, Federal Sentencing Guidelines, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2)
Monday, February 22, 2016
Because Michigan lacks the death penalty, can and should feds consider capital charges against admitted Uber mass murderer?
This new AP article, headlined "Uber driver admits to fatal Michigan rampage," prompts the question in the title of this post now that it seems there were be no questions about guilt in the latest horrific mass shooting. Here are the disturbing particulars:
The Uber driver suspected in a series of three random shootings in Michigan admitted carrying out the seemingly random attacks that killed six people, a prosecutor said Monday. Jason Dalton waived his right against self-incrimination before making the statement to authorities, Kalamazoo County prosecutor Jeff Getting said.
Dalton's statements to police were used to file charges of murder and attempted murder Monday, two days after the shootings in the Kalamazoo area. Dalton appeared briefly in court to hear the charges. He was ordered held without bond and will get a court-appointed attorney.
The shootings occurred in a restaurant parking lot, outside an apartment building and at a car lot. Two victims remain hospitalized.
Meanwhile, an Uber passenger said he called police to report that Dalton was driving erratically more than an hour before the shooting rampage began.
Matt Mellen told Kalamazoo television station WWMT that he hailed a ride around 4:30 p.m. Saturday. He said driver Jason Dalton introduced himself as "Me-Me" and had a dog in the backseat.... "I'm upset because I tried contacting Uber after I had talked to the police, saying that we needed to get this guy off the road," Mellen said....
Kalamazoo County Sheriff Richard Fuller said Uber is cooperating with law enforcement officials, and he believes the company will "help us fill in some timeline gaps." Investigators are particularly interested in communication between Dalton and Uber, as well as customers he might have driven, the sheriff said.
Questions about motive and Dalton's frame of mind are "going to be the hardest to answer for anybody," Fuller said. He expects some answers to emerge in court, but he doubts they will be satisfying. "In the end, I ask people, because I keep hearing this question of why, 'What would be the answer that would be an acceptable answer for you?' They have to think about it for a moment, and they say, 'Probably nothing.' I have to say, 'You are probably correct.' I can't imagine what the answer would be that would let us go, 'OK, we understand now.' Because we are not going to understand."
If Dalton is convicted, the murder charges carry a mandatory life sentence. Michigan does not have the death penalty.
Authorities allege that he shot the first victim outside of an apartment complex and that he shot seven others over the next several hours. Police have not provided a motive. The victims had no apparent connection to the gunman or to each other.
The attacks began early Saturday evening outside the Meadows apartment complex on the eastern edge of Kalamazoo County, where a woman was shot multiple times. A little more than four hours later and 15 miles away, a father and his 17-year-old son were fatally shot while looking at cars at a car dealership. Fifteen minutes after that, five people were gunned down in the parking lot of a Cracker Barrel restaurant. Four of them died....
A man who knows Dalton said he was a married father of two who never showed any signs of violence. Gary Pardo Jr., whose parents live across the street from Dalton in Kalamazoo Township, described him as a family man who seemed fixated on cars and often worked on them.
I do not know enough about federal jurisdiction in capital cases to feel entirely confident that the feds would have a sure-fire jurisdictional basis to take over the prosecution of Jason Dalton. But if one looks at the crimes that have landed some others on federal death row (listed here thanks to DPIC), most involve many fewer murders than Dalton committed. And the fact that Dalton was apparently "on the job" for a notable national (internet?) company when he randomly slaughtered six innocent people and critically wounded two others.
Tuesday, February 16, 2016
"Fifty Shades of Gray: Sentencing Trends in Major White-Collar Cases"
The title of this post is the title of this new Note appearing in the February 2016 issue of the Yale Law Journal authored by Jillian Hewitt and now available via SSRN. Here is the abstract:
Between 1987 and 2005, federal judges sentenced defendants pursuant to binding Sentencing Guidelines that severely curtailed their discretion. In United States v. Booker, the Supreme Court held the mandatory Guidelines sentencing scheme unconstitutional and rendered the Guidelines advisory. This Note offers a picture of white-collar sentencing in “shades of gray.” It conducts an empirical analysis of sentencing decisions after Booker to assess the consequences of the return to judicial discretion.
In particular, the Note examines major white-collar cases in the Southern District of New York, where many such cases of national and international significance are prosecuted. The Guidelines instruct judges in white-collar cases to calculate the amount of economic loss attributable to the defendant and apply a sentencing enhancement — often a sizable one — on the basis of that loss. The findings reveal that a significant majority of defendants in these cases receive sentences of imprisonment shorter than those recommended by the Guidelines. Moreover, when judges impose sentences below the Guidelines range, the resulting sentences are often dramatically shorter than those produced under the Guidelines.
Based on these findings, this Note argues that the U.S. Sentencing Commission should revise its approach to white-collar cases in three ways. The Commission should amend the Guidelines to reduce the severity of the economic loss table; calculate economic “loss” differently; and add additional, though less severe, enhancements to punish pecuniary gain and intended loss. Absent such changes, judges will — and should — continue imposing sentences far below the Guidelines range. These proposed changes better capture the seriousness of the offense and the culpability of the offender, even if they do not resolve the fundamental tension between individualized sentencing and the rigid quantification that characterizes the Guidelines system.
Friday, February 12, 2016
"A Republican Crime Proposal That Democrats Should Back"
The title of this post is the headline of this New York Times op-ed authored by Gideon Yaffe discussing federal mens rea reform. Here are excerpts:
These days, it’s practically unheard-of for those on the left to embrace ideas promoted by the likes of the Koch brothers and the conservative Heritage Foundation. But it would be a shame if partisan distrust kept Democrats from supporting a proposal favored by the right: a measure that would bolster the idea that a criminal conviction should require proof of what lawyers call “mens rea” — literally, a guilty mind. That’s because it can be harnessed to aid some of those who are especially ill treated by the criminal justice system: the poor and racial minorities.
As a legal principle, mens rea means that causing harm should not be enough to constitute a crime; knowingly causing harm should be. Walking away from the baggage carousel with a suitcase you mistook for your own isn’t theft; it’s theft only if you knew you didn’t own it. Ordinary citizens may assume that this common-sense requirement is already the law of the land. And indeed law students are taught that prosecutors must prove not just that a defendant did something bad, but also that his frame of mind made him culpable when he did it. But over the years, exceptions to the principle have become common because mens rea requirements have not been consistently detailed in laws....
Congress is now considering a measure sponsored by Representative James Sensenbrenner, Republican of Wisconsin, that would require that mens rea be proven in many more cases. For instance, a law making it a crime to mislabel drugs would automatically be interpreted as criminalizing knowing mislabeling. The measure would not affect statutes that make clear that no mental state need be shown for guilt — for example, laws criminalizing sex with minors.
The provision is part of a sweeping criminal justice bill that includes important reforms sought by liberals, including reduced sentences for minor crimes. Democrats, however, oppose the mens rea provision on the ground that it would weaken efforts to prosecute corporate executives whose companies have caused harm. Their opposition is a major stumbling block to passage of the larger bill. But suspicions about Republican motivations should not turn liberals against these changes, because strengthening mens rea requirements will also help poor and minority people....
The Justice Department opposes the proposed mens rea measure on the ground that it would have prevented convictions of corporate executives whose products caused harm. But it is entirely possible that the government could have proven mens rea had it been required to try. Furthermore, criminal conviction is not the only way to make corporations pay for their harms: Tort liabilities and civil penalties are not constrained by mens rea requirements. Senator Patrick Leahy, Democrat of Vermont, opposes strengthening mens rea requirements across the board, arguing that each problematic statute should be revised individually. But it would take years to revamp thousands of laws....
The greatest impact of the federal legislation might be in encouraging changes at the state level, where poor and minority defendants are most frequently prosecuted. Ohio and Michigan have already passed mens rea reform laws. And in the wake of federal legislation, other states, including New York, would likely follow their lead.
Democrats should push for even more sweeping changes to unjust “felony murder” laws, which permit murder convictions for anyone participating in a felony in which someone dies, even if no one involved could have been expected to foresee that happening. We know that adolescents are far less aware than adults of the risks their conduct involves, but since felony murder does not require proof of mens rea, adolescent defendants can’t offer evidence of their distorted perceptions of risk.
For liberals, the right’s proposal offers a chance to strike a blow for justice for ordinary people. No one should be convicted of a crime — or even stopped by the police — without evidence of a criminal state of mind.
Some recent and older related posts:
- Might misguided mens rea reform concerns derail federal sentencing reform's momentum?
- Justified criticisms of Prez Obama's not-so-justified criticisms of proposed mens rea reform
- "The Pressing Need for Mens Rea Reform"
- "Our Voluminous Laws And The Need For ‘Mens Rea’ Reform"
Monday, February 08, 2016
Politico reporting that (minor?) changes are being made to Senate's SRCA bill to appease GOP critics
This notable new Politico article, headlined "Criminal justice bill will be changed after conservative objections," reports on changes being made to certain provisions of the Sentencing Reform and Corrections Act (which I have called SCRA 2015 since its introduction last fall). Here are all the important details:
Senators who authored a criminal justice overhaul are preparing several key changes to their bill aimed at mollifying conservative critics. In recent weeks, a handful of Senate Republicans — led primarily by Sen. Tom Cotton of Arkansas — have argued that the criminal justice reform bill would allow thousands of felons convicted of violent crimes to be released early from prison. Supporters say that’s an unfair characterization, but now they are making changes meant to eliminate any chance that those criticisms could become reality.
One change involves Section 105 of the bill, which reduced enhanced mandatory minimum sentences for so-called “armed career criminals.” Under the original proposal, certain felons who already had three violent felony or serious drug offense convictions, and were found guilty of possessing a firearm would face a 10-year enhanced mandatory minimum — lowered from the current 15-year minimum sentence. But the bill’s authors are planning to get rid of this section altogether so that the higher, 15-year sentence remains intact, a senior GOP aide said Monday. The aide added that this section was the subject of the most complaints from conservatives.
The second major change is to Section 104 of the bill. That section reduces enhanced mandatory minimum sentences for felons convicted of possessing a firearm while committing a drug crime or a violent offense, such as robbery. Those changes could be applied retroactively for current inmates. Now, the new version would specifically bar people convicted of firearm possession alongside a violent crime from being able to retroactively seek a reduced sentence. Those changes would “substantively" lower the number of current prisoners who could be released early, the aide said. “We have changed the bill to directly address those concerns and ensure that violent offenders will not benefit from relief under any of the provisions in the retroactive provisions,” the senior Republican aide said.
The changes are expected to be rolled out later this week with the support of all initial GOP and Democratic backers of the criminal justice reform measure — a bill that’s been eyed as one of the few bipartisan accomplishments that could get done in Washington during a polarized election year. The legislation was introduced last fall with the backing of a diverse Senate coalition that includes Sens. Chuck Grassley of Iowa and Patrick Leahy of Vermont, the top Republican and Democrat on the Judiciary Committee; the two chief vote-counters of each party, GOP Sen. John Cornyn of Texas and Dick Durbin of Illinois; conservatives such as Sen. Mike Lee (R-Utah) and liberals including Sen. Cory Booker (D-N.J.).
But Senate Majority Leader Mitch McConnell (R-Ky.), aware of the divisions in his conference on the criminal justice measure, has so far declined to say whether he’ll put the bill on the floor this year.
I suspect many eager to see sweeping federal sentencing reforms will be disappointed to hear that SCRA 2015, which many reform advocates already believe does not go nearly far enough, is now being modified to restrict further the reach of reforms to certain mandatory minimum sentencing provisions. But I am actually quite excited to hear this news because it reveals there are on-going efforts to address the stated concerns of current opponents of the bill. If those concerns can be adequately addressed by what would appear, from the description above, only relatively small changes to a big bill, then I will become more optimistic again about the prospects of some significant statutory reform coming to Prez Obama's desk before he leaves the Oval Office.
Prior to hearing this news, I had been persistently pessimistic about SCRA 2015 ever even coming up for a full Senate vote given that prominent conservative Senators like Tom Cotton and Ted Cruz were voicing significant opposition. But maybe these reported changes will be sufficient for Senate Majority Leader Mitch McConnell to be now willing to bring SCRA 2015 up for a vote. Of course, this story does not mention the still heated debate over whether mens rea reform will become an integral part of the Senate's statutory reform activities, and thus this Politico news is anything but a guarantee that federal statutory sentencing reform is sure to become a reality. Still, this Politico piece does encouragingly suggest the sausage factory that is federal lawmaking is continuing to grind its way forward on federal statutory sentencing reform.
Recent prior related posts on SRCA 2015:
- Basic elements of Sentencing Reform and Corrections Act of 2015
- Leading distinct GOP Senators make the case for federal sentencing reform via SRCA 2015
- Senate Judiciary Committee moving forward next week on Sentencing Reform and Corrections Act of 2015
- Submitted testimony from witnesses at SRCA 2015 hearing (and member statements) now available
- SRCA 2015 passes through Senate Judiciary Committee by vote of 15-5
- US Sentencing Commission provides estimates on likely impact of sentencing reforms in SRCA 2015
- Former AG Michael Mukasey and other former DOJ leaders urge Senate to move forward with vote on sentencing and corrections reform
February 8, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)
"Their 'compassion' is seriously flawed: Politicians care about white addicts — but still love the racist drug war"
The title of this post is the headline of this notable new Salon article authored by Daniel Denvir. Here are excerpts:
It’s a new day for American drug policy, at least as far as drug users are concerned. In New Hampshire, Jeb Bush, Carly Fiorina and Chris Christie are speaking to the wrenching pain of losing loved ones to opioid addiction and death, and making the case that drug abuse should be treated by health professionals and not jails....
Republicans on the campaign trail are opening their hearts to addicts and their families, and policymakers from both major parties are backing harm reduction measures like increasing access to the overdose-reversing drug naloxone. The shift in tone and policy is important, and it has understandably caught reporters’ attention. “In speaking about their own experiences, Republican candidates are not only allowing themselves to be vulnerable in front of voters, they’re also straying from the just-say-no message of Ronald Reagan, whose legacy includes a tough legislative stance on drugs and drug sentencing,” writes the New York Times’ Emma Roller.
The seeming about-face, however, also reveals a troubling problem: Heroin user demographics have changed dramatically in recent years, from heavily black to overwhelmingly white; and it seems that for politicians, it is the opioid crisis’ newly white face that has lent it a relatable quality as far as drug users are concerned. This has not so much been the case for drug dealers....
And therein lies the rub: While many have noted the racial double standard at work, little attention has been paid to its ongoing and pernicious consequence — policy makers are often still approaching drug dealers with ruthlessly punitive measures, and those drug dealers are likely to be black and Hispanic. At least, that is, those for drug dealers who are serving prison time: studies have found that in reality whites are more likely to sell drugs than blacks.
It turns out that Bush and company are not straying as far from drug war orthodoxy as it might seem at first blush. “For dealers, they ought to be put away forever as far as I’m concerned,” said Bush, summarizing the new compassionate consensus’s harsh edge. “But users — I think we have to be a second-chance country.”
While the face of drug users is becoming white, the image of drug dealers often remains black or Hispanic, as blunt-speaking Maine Gov. Ron LePage recently made clear. “These are guys with the name D-Money, Smoothie, Shifty – these types of guys – they come from Connecticut and New York, they come up here, they sell their heroin, they go back home,” said LePage. “Incidentally, half the time they impregnate a young white girl before they leave, which is a real sad thing because then we have another issue we have to deal with down the road.”
LePage’s comments prompted outrage and ridicule because they were racist. But the policy implications go beyond rhetorical offense, because the growing empathy toward white heroin users could actually reinforce or even increase hostility toward drug dealers, especially if they are perceived as being black and Hispanic. Ted Cruz, for one, blamed drug problems on borders left open for “undocumented Democrats.” The upshot is that growing compassion toward drug users won’t necessarily lead to a major reduction in the number of drug offenders behind bars. Drug dealers already made up the bulk of people serving time for drug crimes, and so the only way to sharply reduce the number of drug offenders in prison is to stop imprisoning so many drug dealers.
Instead, some officials appear to be heading in the opposite direction. Around the country, federal and local prosecutors are pointing to the opioid epidemic as a pretext to charge drug dealers with murder-type offenses in fatal overdoses. In reality, the sort of dealers who Bush and others want to put away for life include both small-time operators and drug users who appear to have shared a small amount of drugs with a friend. One man was sentenced to 20 years in federal prison for selling two-tenths of a gram of heroin, $30 worth, to a man who later overdosed. Many dealers, major and minor, are still subject to sentences harsher that what many countries reserve for murderers....
It’s not just a problem for Republicans, either. Democratic candidates for president Hillary Clinton and Bernie Sanders have yet to put forward a plan that would actually end the mass incarceration of drug offenders (let alone mass incarceration more generally, which is driven in significant part by the imprisonment of violent offenders). Both have bigger plans than Republicans, however, and Sanders has outdone Clinton by calling for an end to the federal prohibition of marijuana and supporting the reinstatement of federal parole. Both pledge to do something about harsh mandatory minimum sentences. But neither candidate has argued that most drug dealers should not be imprisoned, or suggested more radical but useful alternatives like broad-based legalization and regulation....
There is some movement to relax harsh punishments for nonviolent drug dealers and create programs to divert low-level dealers from prison. In Congress, bipartisan legislation would modestly reform some of the harshest mandatory minimums for drug dealers, President Obama has commuted the sentences of some drug offenders serving incredibly long federal sentences, and the racist discrepancy between federal crack and powder cocaine sentences have been narrowed (but not at all eliminated). But until politicians’ rethinking of the drug war extends to drug dealers, hundreds of thousands of people, disproportionately people of color, will be remain bars in the name of a drug war that by all honest accounts has failed to stop people from using drugs.
Notable report on another EDNY federal judge objecting to harsh provisions of federal child porn laws
A helpful reader alerted me to this notable new New York Daily News report about another notable effort by a notable federal district judge in the Eastern District of New York expressing his disinclination to punish a child porn downloader as severely as federal prosecutors seem to want. The article is headlined "Queens man charged with receiving 50,000 kiddie porn images can have unsupervised contact with his children," and here are excerpts:
A federal judge pooh-poohed the concerns of law enforcement officials, ruling that a Queens man charged with receiving nearly 50,000 kiddie porn images on the “dark Web” can have unsupervised contact with his two young children, the Daily News has learned.
“It comes down to money,” Judge Frederic Block explained in Brooklyn Federal Court last week. “It’s a financial burden on the family if they have to hire people to sit there and watch them. I don’t see his children at risk.”
Both the Brooklyn U.S. attorney’s office and the pretrial services office of the Eastern District of New York disagreed, arguing that Naray Palaniappan, a computer consultant, should not be alone in his Jackson Heights home with his children, ages 2 and 4. The federal Adam Walsh Child Protection and Safety Act routinely requires, as a condition of bail, that defendants in Palaniappan’s situation be accompanied by a monitor in the presence of children.
Palaniappan, 39, was nabbed last year in a nationwide FBI investigation of online pervs who troll a hidden region of the Internet, known as the dark Web, which is not accessible through conventional search engines. Palaniappan, who investigators linked with the user name “JiminyCracket,” allegedly received a massive trove of child pornography that included videos of young girls being raped by adult men.
Assistant U.S. Attorney David Gopstein advised the judge that Palaniappan failed a lie detector test, administered by the FBI, in which he was asked if he had sexual contact with minors. He has yet to complete a voluntary parenting program administered by the city, which could have bolstered his case that he isn’t a danger. “There are troubling issues and we are talking about children,” Gopstein argued.
But Block, unmoved, lifted the restriction two weeks ago. On Thursday, Block brought Palaniappan and his wife into court for an update. “I assume he hasn’t molested his children since we last left,” Block said. Palaniappan’s wife told the judge she didn’t object to leaving their kids alone with him.
The judge also blew up when a prosecutor told him that Palaniappan had been offered a plea deal that calls for a mandatory five-year sentence. “You think this man should be in jail for five years?” Block asked three times.... Block threatened to have Palaniappan’s case transferred to Federal Judge Jack Weinstein, who has openly challenged mandatory tough sentences in some child pornography cases. It was unclear whether he was serious.
Defense lawyer Zachary Margulis-Ohnuma told The News that Block’s decision is well-reasoned and based on several reports, all positive, by the family service agencies overseeing Palaniappan’s case.
The way in which Judge Block handled this pre-trial issue of supervision leads me to think, ironically, that federal prosecutors are now almost certain to demand that this defendant plead guilty to a child porn receipt charge which carries a five-year mandatory minimum rather than to allow him only to plead to a CP possession charge which carries no mandatory minimum. Clearly, Judge Block does not view this defendant as a threat in the same way federal prosecutors do, and that suggests to me federal prosecutors will use the tools they have at their disposal to try to legally preclude Judge Block or others from showing leniency to this defendant.
Especially in the wake of Judge Jack Weinstein's recent notable sentencing ruling in US v. RV (discussed here), I am starting to sense there may be something of a sentencing turf war starting to emerge in Eastern District in these kinds of child porn cases. For that reason and others, I would now not be surprised if the EDNY federal prosecutors are going to be even less inclined to cut any child porn defendants any kind of breaks in the plea process in all current and future cases.
Sunday, February 07, 2016
A useful reminder that, even after Montgomery, SCOTUS will continue to be asked to address juve LWOP
BuzzFeed News reporter Chris Geidner has this effective new piece discussing the reality that SCOTUS is sure to be presented in the years ahead with Eighth Amendment challenges to any and every LWOP sentence given to a juvenile offender. The piece is headlined "An Uncertain Path Ahead For Juvenile Sentencing Cases Still Before The Supreme Court," and here are excerpts:
Cortez Davis is serving life in prison under Michigan’s felony murder statute for a killing that occurred when he was 16 years old. Davis was not the gunman, the trial judge in his case found, but was a participant in a robbery when the fatal shooting took place. Nonetheless, under the Michigan law, because he was a key participant in the underlying felony, he was charged with felony murder. Davis was sentenced to life without the possibility of parole — the mandatory sentence in the mid-1990s.
More than a year ago, lawyers for Davis asked the Supreme Court to take up their client’s challenge to a lower court decision that upheld that sentence. Now, following a recent Supreme Court decision, his challenge and several others are likely to be sent back to lower courts — a move that could, depending on what state courts do next, put off even further the chance people like Davis have to reduce or end sentences the court has repeatedly thrown into question in recent years.
The petitions ask the justices to address how and under what circumstances states can sentence juveniles to life without parole, including in a handful of cases in which the convictions are for felony murder. Over the past decade, the court has taken up several cases addressing juvenile justice issues. The court ended the eligibility of juveniles for the death penalty in 2005, and has since, in a series of rulings, narrowed the eligibility of juveniles for life sentences.
Last week, the court handed down yet another significant ruling on juvenile sentencing — this one in the case of Henry Montgomery — that deals with complicated legal issues, but has major consequences. The court, in an opinion by Justice Anthony Kennedy, held that the 2012 ban on sentences of mandatory juvenile life in prison without the possibility of parole applied not just going forward, but also to those sentenced in the past like Montgomery. Montgomery is in jail for a killing he committed at 17 in 1963....
Far from a narrow procedural ruling, Kennedy explained that the 2012 ruling — Miller v. Alabama — was a substantive one, and, in its wake, “it will be the rare juvenile offender who can receive that same sentence.” While Montgomery’s case was pending, however, the court left several related cases like Davis’s one — all of which ask the court to go further down this path — waiting for action from the justices.
Most expect the justices now to send those cases back to lower courts to consider how the Montgomery decision affects their respective cases. During that period, how state courts interpret the Supreme Court’s ruling could vary widely. How rare is the “rare juvenile” that Kennedy writes about whose crime reflects “irreparable corruption”? How do states make that determination?...
On Jan. 25, Kennedy detailed the court’s decision that Louisiana had to give retroactive effect to the Supreme Court’s 2012 decision in the Miller. In the wake of that decision, it’s likely that the justices will send Davis’s case back to the Michigan Supreme Court to reconsider it. As Kennedy suggested in the Montgomery decision, Michigan either could re-sentence Davis — considering whether his crime reflects “permanent incorrigibility” — or make him eligible for parole consideration.
If Davis is re-sentenced instead of being granted a chance at parole, however, and if he is sentenced to life again, then he likely would go back to the U.S. Supreme Court — asking the court, again, to hear his case on the felony murder question. (As is already being seen in Montgomery’s case, state officials in Louisiana have told the state’s supreme court that their aim is to re-sentence those with mandatory life without parole sentences, rather than give them the possibility of parole.)
February 7, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
Monday, February 01, 2016
Notable new parallel studies on comparable execution patterns in two notable states
Frank Baumgartner has recently released these two (short and reader-friendly) reports providing a "review of simple statistics" concerning who has been executed in two states in the modern death penalty era:
There were no data that especially surprised me during my (too quick) review of these reports, though I always find analysis of county-level death penalty patterns especially intriguing. For example, these documents report that "six out of Florida’s 67 counties are responsible for more than half of the state’s 89 executions" and that "four out of Ohio’s 88 counties (Lucas, Summit, Cuyahoga, and Hamilton) — or just 5% — are responsible for more than half of the state’s 53 executions." These kinds of data serve to highlight, yet again, just how significant county-level actors — particularly district attorneys and trial judges — truly are in the actual administration of the death penalty in the United States.
Saturday, January 30, 2016
Judge Jack Weinstein disregards severe federal child porn guidelines again
A helpful reader alerted me to this notable local story describing the latest notable child porn downloading sentence imposed by US District Judge Jack Weinstein. The piece is headlined "Judge Gives Man 5 Days for Child Porn, Rails Against Harsh Sentences," and here are excerpts:
A Brooklyn man who faced 10 years for downloading child pornography was sentenced to five days by a federal judge who sharply criticized punishment guidelines for failing to distinguish between dangerous offenders and those who pose little threat.
U.S. District Judge Jack Weinstein wrote a 98-page decision explaining why he bypassed the guidelines and chose not to put the man in prison for possessing two dozen photos and videos — some showing men sexually assaulting girls as young as 3 years old, according to court papers. "Removing R.V. from his family will not further the interests of justice," Weinstein wrote, using the defendant's initials. "It will cause serious harm to his young children by depriving them of a loving father and role model and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family."
His opinion, first reported in the New York Law Journal, is the latest salvo in a war over whether penalties for possessing child pornography have gotten too harsh. The existing guidelines, Weinstein wrote, do not "adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment."
The defendant, who agreed to speak to NBC News on the condition his name was not used, said he was surprised and relieved that Weinstein was so lenient after his guilty plea. "I prayed to God and took my chances," the 53-year-old father of five said. "I feel very remorseful. It's something that will never happen again."
But child-abuse victims' advocates said they were appalled by Weinstein's reasoning. "I think Judge Weinstein's opinion minimizes the harm that is done to victims of these crimes from the mere act of viewing their images. It's a gross violation of privacy and an invasion of privacy that traumatizes them throughout their lives," said Paul Cassel, a former federal judge who is now a law professor at the University of Utah.
In 2013, investigators remotely connected to the man's computer and downloaded four photos and videos showing men engaged in sexual acts with girls, including a 3-year-old and a 5-year-old, and they seized more porn on thumb drives with a search warrant, court papers said. The man also had "sexual" chats with underage girls online, but there was no evidence he sought physical contact with minors. When he pleaded guilty, the defendant said he understood the charge carried up to 10 years behind bars. Based on the specifics of his case, the federal guidelines called for a sentence of 6.5 to 8 years in prison.
But Weinstein thought that was too much time for an offender who did not make, swap or sell child porn or try to abuse children. He said the five days the man served before making bail, plus seven years of court supervision and a fine, were punishment enough. The judge noted that the man was undergoing sex offender treatment and was deemed unlikely to relapse and that a psychiatrist testified he was not a danger to his own or other children. He also noted that the Internet has made child pornography accessible to a much wider group of Americans who might not otherwise have been exposed to it.
The man — who lost his $75,000-a-year job as a restaurant manager after his arrest — told NBC News that he stumbled on child pornography while consuming legal, adult pornography online. "I just got caught up in it," he said. "It's not like I woke up and said, 'Listen, let me look at this stuff.' It kept popping up every time I was downloading."
Weinstein is among a group of federal judges who have argued that sentencing ranges for possessing child pornography — which were doubled by Congress in 2003 — are too severe. The federal bench handed down sentences below the guidelines 45 percent of the time, the Associated Press reported in 2012. Those who favor tougher sentences point out that while many consumers of child pornography may not never lay a hand on a child, some do. And all, they say, play a role in a system that promotes the abuse of children....
Jennifer Freeman, an attorney who represents child-porn victims in efforts to obtain restitution, called Weinstein's opinion "a diatribe" and said he was using the particulars of one case to indict the entire sentencing structure. "He's basically saying it's not worth too much punishment," she said, adding that she did not want to comment on whether the man Weinstein sentenced deserved more time than five days.
That man said that he had done something wrong and was ashamed of it but that locking him up would not have served any purpose and would have "put my family living out on the street."
"It should be illegal," he said of child pornography. "No child should be put through that process." But he added, "I would never physically do anything. I never had even a thought of it."
I will need to track down and review closely Judge Weinstein's lengthy opinion in this case before I would feel comfortable weighing in on this specific sentencing decision. But I already can state that I am sure federal prosecutors involved in this case are sure to feel quite uncomfortable when trying to decide whether to appeal this sentencing decision to the Second Circuit as unreasonable.
Assuming Judge Weinstein did not disregard any applicable mandatory minimum statute nor made any other clear doctrinal error, federal prosecutors might have a hard time establishing on appeal that Judge Weinstein's exercise of his post-Booker discretion in this case was unreasonable (especially in light of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines). But a decision by federal prosecutors not to appeal this sentence might be viewed, perhaps properly, as a tacit admission by the government that a non-prison sentence can be appropriate in some child porn downloading cases.
UPDATE: A helpful reader sent me a copy of Judge Weinstein's sentencing opinion in this case, so I can now provide it here for downloading: Download US - v- RV weinstein sentencing opinion
January 30, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (23)
You be the state sentencing judge: how much prison time for former state official guilty of (small-time?) marijuana dealing
The question in the title of this post is prompted by this local story from Michigan, headlined "Ex-state Rep. Roy Schmidt pleads, sold marijuana as 'source of income,' judge says." Here are the basics (with my emphasis added):
Former state Rep. Roy Schdmidt pleaded no contest Thursday, Jan. 28, to manufacture of marijuana. Schmidt initially fought charges as a registered medical marijuana caregiver and disputed the amount of marijuana he possessed.
But a police report, read by Grand Rapids District Judge Michael Distel to establish a basis for Schmidt's guilt, said he told police that he sold marijuana to 10 to 15 people who were not his registered medical marijuana patients. He told police that "he was operating his business as a source of income," Distel said.
Schmidt was charged last year with manufacture or delivery of marijuana after police raided his home on Seventh Street NW and a house he rented from his son on Myrtle Avenue NW. Police said Schmidt possessed nearly three pounds of marijuana and 71 marijuana plants. Caregivers are allowed to possess 2.5 ounces of usable marijuana for each of up to five patients. Schmidt has maintained that his drying marijuana was not considered usable.
He faces up to four years in prison when sentenced on March 22 in Kent County Circuit Court.... Under the plea, Schmidt admits no guilt but the plea is treated as such at sentencing. He was allowed to plead no contest because he could face civil forfeiture proceedings related to his marijuana operation.
Schmidt is free on bond. Kent County prosecutors will drop a second charge of manufacturing marijuana.
His arrest followed an ill-fated scheme to switch parties while he served in the House of Representatives. After being elected as a Democrat in 2008, he lost his seat four years later after a controversial switch to the Republican Party. He had spent 16 years on a Grand Rapids City Commission on the West Side of town.
This case raises more than a few interesting classic "offender-based" sentencing issues: e.g., (1) should Schmidt's history as a relatively prominent politician be viewed as an aggravating sentencing factor (because it makes him more culpable as someone who was involved in making the state laws he broke) or as a possible mitigating sentencing factor (because he would seem like the type of person unlikely to be a serious recidivist); (2) should the prospect of Schmidt losing his home and/or his son's home through civil forfeiture proceedings significantly influence what criminal sentence he receives?
But, what really captured my attention in this case (and prompted my cross-posting over at my Marijuana Law, Policy & Reform blog) is the different ways this defendant's offense might be viewed by a sentencing judge. His lawyers could perhaps claim, given the legalization of medical marijuana in Michigan, that Schmidt's crime is essentially a regulatory violation comparable to a liquor store owner who sold a dozen or so times to underage college students. But prosecutors likely will assert that Schmidt should be viewed and sentenced like any other greedy drug dealer.
Thoughts, dear readers?
Thursday, January 28, 2016
Diving deep into latest data showing significant uptick in homicides in 2015
The folks at Wonkblog have this effective new posting, headlined "More people were murdered last year than in 2014, and no one’s sure why," which provides lots of interesting data on the significant increase in homicides in major cities in 2015. It also highlights why simple explanations for this recent homicide increase (or prior decreases) are hard to come by. I recommend the full piece, and here are excerpts:
Wonkblog analysis of preliminary crime data found that about 770 more people were killed in major cities last year than the year before, the worst annual change since 1990.
The killings increased as some law enforcement officials and conservative commentators were warning that violent crime was on the rise amid a climate of hostility toward police. They said protests and intense scrutiny of officers who used lethal force had caused officers to become disengaged from their jobs, making streets more dangerous. Some have called it the "Ferguson effect," after the St. Louis suburb in which Michael Brown Jr. was shot and killed by a police officer in 2014.
A closer look at the figures, however, suggests no single explanation for the increases and reveals no clear pattern among those cities that experienced the most horrific violence. Several cities that recorded the largest increases in homicides -- Nashville and Washington, D.C., for instance -- had no widely publicized, racially charged killings by police. Many other big cities recorded modest increases or even declines in the number of homicides, with no deviation from the pattern of recent years....
Public safety has been improving for two decades, and lethal violence in large cities is still rare by historical standards. Twice as many people were killed in those 50 cities in 1991 as in 2015. "You certainly wouldn't want to say the sky is falling," said Darrel Stephens, executive director of the Major Cities Chiefs Association.
Nonetheless, last year's interruption in the decline in homicides has experts concerned. They say it's too early to know what caused the change, or whether it will endure. It's not clear if there is a Ferguson effect, or if the homicides are a result of the heroin epidemic, reduced police department budgets, a decline in the number of convicts behind bars or other factors entirely. "There's no national pattern," said Franklin Zimring, a criminologist at the University of California at Berkeley....
Stephens, of the Major Cities Chiefs Association, ticked off a list of other theories for the increase in violence. Perhaps relaxed gun laws in some states are making firearms more widely available, and more arguments are being settled with lethal weapons as a result. Stephens also noted that authorities are locking up fewer people in prison, and perhaps more dangerous criminals were on the street last year.
Federal data, however, suggest that the reduction in the incarcerated population over the past several years is mainly a consequence of decreasing admissions, rather than a change in the number of prisoners released annually, which has also declined. In 2014, just 582,000 prisoners were let go from state and federal prisons, compared with 683,000 in 2008....
Additionally, both those explanations are complicated by the absence of any regional pattern in the data. There were more killings in Nashville, but the total in Memphis declined by 1 percent. The number of homicides increased 25 percent in Houston, but decreased 9 percent in San Antonio. There were seven fewer homicides last year than in 2014 in Fresno, Calif., a decline of 15 percent. Meanwhile, up Highway 99 in Sacramento, there were 43 killings last year, an increase of 54 percent. "Everything is basically anecdotal," Stephens said. "There's not a clear national picture that I've been able to discern of what might be contributing to the changes that we’ve seen in so many cities."
Bill Otis has some sharp commentary about these data and how Wonkblog reports it in this post at Crime & Consequences titled "The National Murder Crisis, Worse Than We Thought." In that post, Bill quickly mentions "that the increase in murder in 2015 was more than 25 times the total number of killers executed that year," but he disappointingly does not follow-up by noting that the one major city with the biggest decline in homicides in 2015 was also the city with the most headline-grabbing 2015 capital punishment trial: Boston. (I am generally disinclined to suggest there is a close relationship between the administration of the death penalty and homicide rates, but I still find notable that the dozen cities with the largest homicide increases in 2015 are all in states without the death penalty or with a capital punishment system not functioning properly.)
Wednesday, January 27, 2016
"Legislation to clarify intent requirements is long overdue brake on prosecutorial excess"
The title of this post is the headline of this notable new commentary in The Hill authored by Norman Reimer, executive director of the National Association of Criminal Defense Lawyers. Here are excerpts:
For several years now, unprecedented bipartisan support for an array of criminal justice reforms, including addressing criminal intent deficiencies, has been building. Leaders from across the political spectrum have reached across the political divide to work together for a fairer, more rational, and more humane criminal justice system. This emerging coalition seeks to restore a measure of restraint to a criminal justice system that is out of control. The United States has more than 2 million people behind bars, recent FBI statistics indicate that we arrest more than 14 million annually, and we have more than 70 million adults with a criminal record.
These shocking statistics do not make the case that this is a nation of criminals; rather they reflect an unprecedented and unrestrained use of the prosecutorial power of government to regulate all manner of disfavored social and personal behavior. There are many ways to address this problem. One modest, but critical step is to ensure that there is clarity in the criminal law, and that we do not enact vague criminal provisions and count on prosecutorial discretion to ensure that they are not misapplied. Recently proposed legislation in the House and Senate that would provide a default intent provision where a statute is silent on the level of intent necessary to brand a person as a criminal is a responsible, measured, and incremental step to reign in governmental abuse of its prosecutorial power....
When the government brings to bear its most awesome power short of warfare, the power to prosecute an individual, it has an obligation to do so with precision and clarity, so that the average person can understand what is illegal. A fundamental principle of law is that to establish criminal behavior it must be demonstrated that a person committed a bad act, and did so with some culpable mental state.
Unfortunately, the federal criminal code has exploded from a handful of criminal provisions a century ago to what is now estimated to be more than 4,500 criminal statutes, and hundreds of thousands of additional criminal provisions in federal regulations. In its headlong rush to criminalize, Congress has become careless by writing laws and authorizing agencies to enact criminal provisions that can send people to jail, but do not define the required criminal mental state. That failing opens the door to prosecutorial abuse. Nonetheless, the Department of Justice is raising concerns about the proposed legislation. Heaven forbid we should actually make prosecutors prove that someone actually intended to commit a crime!
What the DOJ criticism does not recognize is that criminal intent reform merely provides that if a criminal law or regulation lacks a prescribed mental state then judges and prosecutors should presume that there really is one. It does not undo any criminal provision that already has a prescribed state of mind. Government prosecutors can still go after people to their heart’s content, and, despite claims to the contrary, they can do so based on willful, reckless, or negligent behavior if that is what the law provides. And they can even prosecute based on strict liability – that is without showing a guilty state of mind – provided that is what the law expressly authorizes. But if the law is silent, rather than ceding to prosecutors unchecked authority to wield the prosecutorial power indiscriminately, this new law provides a modest brake on that power by requiring proof that the person knew that they were breaking the law.
Some recent and older related posts:
- Can and will Prez Obama effectively help get a federal sentencing reform bill to his desk?
- "The Pressing Need for Mens Rea Reform"
- So thankful for federal sentencing reform moving ahead in Congress... but...
- "Our Voluminous Laws And The Need For ‘Mens Rea’ Reform"
- Might misguided mens rea reform concerns derail federal sentencing reform's momentum?
What should we expect after Montgomery from states that had resisted Miller retroactivity?
The question in the title of this post is prompted by this extended and effective Intercept article headlined "Supreme Court Gives New Hope to Juvenile Lifers, But Will States Deliver?". Here are excerpts:
[I]t took three-and-a-half years and much litigation for the Supreme Court to force the states to apply Miller retroactively. Even now, the Montgomery ruling is no guarantee for release. “Today’s decision simply provides an opportunity for review,” Mark Plaisance, the Louisiana attorney who argued the case before the Court last fall, reminded reporters on Monday. The ruling is “just the first step in a long process for Mr. Montgomery.”
At 69, Henry Montgomery does not have the luxury of time. Yet he is among the lucky ones — at least he has representation. For other prisoners, finding a lawyer to challenge their continued incarceration is the first in a daunting series of hurdles. According to [Sister Alison] McCrary, word at Angola is that local attorneys will soon be visiting the prison to instruct “offender counsel substitutes” — jailhouse lawyers — on how to begin filing petitions on behalf of fellow inmates. But juvenile lifers must also wait for the state to decide on the legal venue for such a challenge. Then, ultimately, they must convince the state’s chosen decision-makers that they are worthy of early release.
From state to state, the question of who will make these decisions is still up in the air. After Miller, several states simply abolished juvenile life without parole, restoring parole eligibility or imposing lesser determinate sentences on those already imprisoned. Other states opted for resentencing hearings, putting individual prisoners’ fates in the hands of a judge. For those recalcitrant states that refused to do either, Justice Kennedy sought to provide reassurance in Montgomery that the 6-3 ruling “does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole.” Instead, he suggested, writing for the majority, states can give a chance for such prisoners “to be considered for parole.”
In New Orleans, the Louisiana Center for Children’s Rights was quick to embrace this suggestion. The state “has a choice to make,” the legal nonprofit explained on its website following Monday’s ruling. It can offer prisoners “costly, lengthy, substantive hearings” to the tune of $3 million to fund the first year of defense attorneys alone, according to an estimate by the Louisiana Public Defender Board. Or it can grant juvenile lifers some shot at release by allowing them to go before a parole board — an option the group’s director argues saves money, preserves public safety (“by ensuring that nobody is released without review”), and is “fairer for victims, because it will mean that they do not have to go through the difficulties of a new court hearing.”...
Still, as in most states, winning parole in Louisiana is exceedingly difficult. Last summer, following a thorough review of the state of parole across the country, the Marshall Project found parole boards nationwide to be secretive, driven by politics, and “vested with almost unlimited discretion to make decisions on almost any basis. Hearsay, rumor and instinct are all fair game.”...
As lawyers and scholars continue to parse the ruling in Montgomery, the broader implications are yet to be seen. For now, although it continues to chip away at the harshest sentences for youth, with Montgomery, the Supreme Court has decided once more to preserve the option of juvenile life without parole, meaning that defendants will continue to be sent to die behind bars for crimes they committed as children. There is good reason to think such sentences will be rare — existing data after Miller shows a large drop in new sentences of life without parole for juvenile crimes across the country. And some legal experts have interpreted Montgomery to mean that a prosecutor pursuing such a punishment will now have to somehow “prove to a judge that a particular youth is beyond saving as a reformed person” — a dubious proposition that should be burdensome in theory.
Yet, it is not hard to imagine that in such cases, the “nature of the crime” will continue to have the final say. After all, even as it seeks to narrow life without parole sentences for youth offenders, Montgomery keeps intact the same assumption that set the stage for them in the first place. “Miller drew a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption,” Kennedy wrote in Montgomery. It remains possible that a court “might encounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified.”
It was this image of irredeemably bad youth — applied along starkly racist lines — that created the superpredator myth, fueling the very sentences states are now being forced to reconsider. After all, while it may be easy to accept that, as an old man, Henry Montgomery is not the same person he was in 1963, it is difficult to imagine such sober perspective governing the fate of a 17-year-old who today committed the same crime — the fatal shooting of a police officer. These are the very crimes for which mandatory sentencing was invented — and for which parole will be routinely denied.
It is this enduring idea — that a crime tells us everything we need to know about the person who committed it — that must be overcome, by parole boards, by judges, and by the legions of people who now claim the broader mantle of criminal justice reform. The Supreme Court has taken another important step in recognizing that people in prison can change. It is up to the states to give juvenile lifers a meaningful chance to go home — before prison becomes the only home they know.
Prior related post on Montgomery:
- SCOTUS declares Miller juve LWOP rule retroactive in Montgomery v. Louisiana
- Do SCOTUS watchers really expect the Justices to take up the basic constitutionality of the death penalty soon?
Monday, January 25, 2016
GOP empire striking back against federal sentencing reform efforts in Congress
This new Politico article, headlined "Cotton leads effort to sink sentencing overhaul: A cadre of conservative Republicans is lining up against the bipartisan measure, imperiling its future," reinforces my long-standing concern that the prospects of significant statutory sentencing reform emerging from Congress gets dimmer every week that passes without movement forward on the bills that have made it through the judiciary committees. Here is the first part of the article:
Sen. Tom Cotton, the hawkish upstart who's already made waves railing against the Iran nuclear deal and government surveillance programs, is now leading a new rebellion against a bipartisan effort to overhaul the criminal justice system — hoping to torpedo one of the only pieces of major legislation that could pass in President Barack Obama’s final year.
GOP tensions over a bill that would effectively loosen some mandatory minimum sentences spilled over during a party lunch last week, when Cotton (R-Ark.), the outspoken Senate freshman, lobbied his colleagues heavily against the legislation, according to people familiar with the closed-door conversation. The measure passed the Senate Judiciary Committee last fall with bipartisan support.
“It would be very dangerous and unwise to proceed with the Senate Judiciary bill, which would lead to the release of thousands of violent felons,” Cotton said later in an interview with POLITICO. “I think it’s no surprise that Republicans are divided on this question … [but] I don’t think any Republicans want legislation that is going to let out violent felons, which this bill would do.”
Cotton isn’t alone. Other Senate Republicans, including Sens. Jim Risch of Idaho and David Perdue of Georgia, also registered their strong opposition during the lunch, even as Sen. Mike Lee (R-Utah) vigorously defended the bill, which he helped negotiate. Risch stressed this message, according to one Republican source: Shouldn’t the GOP be a party of law and order?
Risch declined to elaborate on his concerns over the bill, saying he was displeased that his private remarks made during a party lunch were made public. But the deepening Republican split over reforming key elements of the criminal justice system — an effort years in the making that has been powered by an influential right-left coalition — may imperil whether Senate Majority Leader Mitch McConnell ultimately will take up the measure later in this election year.
Conservatives opposing the legislation are coalescing around Cotton’s view — despite strong pushback from bill supporters — that the measure could lead to the early release of people convicted and imprisoned for violent crimes. Sen. Ted Cruz (R-Texas), once a supporter of easing mandatory minimums for nonviolent drug offenders, has also made this argument. And there’s stiff resistance in pockets of the Republican Party to do anything that may erode its tough-on-crime reputation.
Backers of the bill say their changes to sentencing laws merely allow qualifying inmates to have their cases revisited by the same judge and prosecutor who landed them in prison. The judge would then have the discretion to hand down a reduced sentence. “It’s not true,” said Senate Majority Whip John Cornyn (R-Texas) of opponents’ insistence that violent criminals could be freed under the sentencing reforms. “I’d say, please read the bill and listen to people like [former Attorney General] Michael Mukasey who makes the point, which is a critical point, that there’s no get-out-of-jail-free card.”
But that perception, hardening among conservatives, is a serious obstacle for supporters of the bill like Cornyn, who as the Senate’s second-ranking Republican is the most influential GOP backer of the criminal-justice measure. And last week, McConnell — who is often hesitant to press ahead on issues that divide his 54-member conference — indicated a breather of sorts on the bill, saying GOP senators would take some time to get educated on the measure.
Those comments discouraged some supporters, since any major pause could spell doom for the bill this year. In a couple of months, the GOP-led Congress will turn its attention to its top legislative priority — budget and appropriations bills — while individual lawmakers shift into full campaign mode. “Members of the Judiciary Committee have been deeply involved on that issue, the rest of us have not,” McConnell told reporters of criminal justice reform. “So we’re going to be working through the process of bringing everybody in the Republican Conference up to speed on this very important issue, and we’re going to do that before any decision is made about floor time.”
The criminal justice overhaul isn’t limited to sentencing reforms. The measure also includes reforms to the prison system championed by Cornyn and Sen. Sheldon Whitehouse (D-R.I.) — changes that Cotton said he supports. And overhaul efforts also are complicated by the issue of so-called mens rea reform, with House Republicans and some GOP senators — including Orrin Hatch of Utah, the most senior Senate Republican — demanding changes to rules governing criminal intent.
But the sentencing changes are triggering the biggest — and most vivid — rift among Republicans. Cotton and other Republicans pointed to a triple murder earlier this month in Columbus, Ohio, where a man is accused of killing an ex-girlfriend and two of her children. The suspect, Wendell Callahan, had his prison sentence on drug charges reduced twice for a total of more than four years, according to The Columbus Dispatch.
January 25, 2016 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (2)
Thursday, January 21, 2016
A much deeper (too deep?) dive into mens rea and its place in criminal justice reform
As regular readers should now know, debate over mens rea reforms for federal offenses has become the latest hot-button issue in the extended discussions inside the Beltway concerning statutory federal sentencing reform. On the terms of the statutory debate in Congress and with the White House, the federal mens rea debate is quite interesting and important. But this interesting new commentary by sociology professor William Kelly, titled "Rethinking Criminal Intent: Why 'Mens Rea' Matters," provides an even richer perspective on what deeper mens rea concerns might entail. I recommend the full piece, and here is a taste:
I believe the debate has so far sidestepped one of the more troubling impacts of mens rea on our justice system. I agree that there is a valid question about whether citizens can be aware of all federal crimes. But the problem associated with mens rea is much broader than just the question of whether someone is “knowingly” breaking the law. My concern is with the psychological, neurological, psychiatric, and intellectual ability or capacity of many offenders to form the required criminal intent.
Criminal intent or criminal responsibility requires awareness, conscious will, volition, and rational decision making. There is a routine presumption, which is rarely challenged, that criminal offenders have the ability to form intent. I challenge that presumption. Here is why.
Today, 40 percent of individuals in the U.S. criminal justice system (federal and state) have a diagnosable mental illness. Sixty percent of inmates in the nation’s prisons have experienced at least one traumatic brain injury. Nearly 80 percent of justice-involved individuals have a substance abuse problem. The prevalence in the justice system of individuals with intellectual disabilities is three to five times what it is in the general population. There are substantial numbers of individuals in the justice system with neurodevelopmental and neurocognitive deficits and impairments.
Moreover, there’s overwhelming evidence that many individuals with mental illness, addiction, neurodevelopmental deficiencies, and intellectual deficits lack the ability to form intent as it is defined in the law. How many lack this ability we don’t really know, because we rarely inquire about intent. But the statistics cited above should raise serious questions about how we go about the business of criminal justice in the U.S.
In the vast majority of state and federal criminal convictions, the government rarely is required to prove intent. That’s because the vast majority of criminal indictments (roughly 95 percent) are resolved through a plea agreement. If the offender agrees to the terms of the agreement, it’s essentially a done deal. That puts prosecutors in charge of sorting out who is criminally responsible and who is not. At the end of the day, the vast majority are held responsible.
Mens rea is supposed to serve as a gatekeeper at the front door of the justice system, separating innocent from criminal behavior. The reality is that criminal intent is just not much of an issue under current criminal procedure. That in turn has significantly contributed to our incarceration problem by facilitating the punishment of more and more individuals.
It has also contributed to our recidivism problem. When we punish mentally ill, addicted, intellectually disadvantaged and/or neurocognitively impaired individuals, we tend to return them to the free world in worse shape than when they came in. This is simply more grease for the revolving door.
Wednesday, January 20, 2016
Justified criticisms of Prez Obama's not-so-justified criticisms of proposed mens rea reform
This new National Review commentary authored by James Copland and Rafael Mangual, headlined "On Criminal-Justice Reform, Obama Should Practice What He Preaches — Civility," levels complaints at the Obama Administration for complaining about mens rea reform efforts in Congress. Here are excerpts:
In his final State of the Union address, President Obama expressed his hope to reach across the aisle on what he described as a “priority” issue: criminal-justice reform. Although we strongly agree with the president that reforming the federal approach to criminal justice should be a priority, he has unfortunately jeopardized such reforms with an uncompromising hostility to Republicans’ — and other Democrats’ — reform ideas....
Following the lead of left-wing advocacy groups including Public Citizen and Think Progress, the White House and the Justice Department almost instantly came out against both criminal-intent bills [introduced in the House and Senate]. A White House official told the Huffington Post that these bills would “enable defendants charged with a range of offenses — including violent crimes, terrorism, and sexual offenses — to potentially escape liability for egregious and harmful conduct.”
These claims are pure poppycock and completely at odds with the president’s State of the Union call for a “rational, constructive,” and “more elevated debate.” To be sure, there might be reasonable critiques of the draft legislation and possible amendments that could create different definitions or standards — just as the sentencing reforms supported by President Obama ought to be vetted to make sure that they are not releasing violent criminals back onto the streets. But by drawing a line in the sand against Republican priority reforms — and by suggesting that Republican and Democratic legislators who support criminal-intent standards are somehow soft on terrorism or sexual assault — the president is hardly being constructive or elevating the debate on criminal-justice reform.
In essence, the bill so vehemently opposed by the White House would merely require Congress to be explicit whenever it wishes to criminalize conduct without regard to the intent of the actor. It would prevent courts from assuming from congressional silence that Congress meant to send unknowing violators of a law or regulation to jail, as opposed to merely hitting them with an often-hefty civil fine or penalty.
Democrat stalwarts on the House Judiciary Committee, including John Conyers (D., Mich.) and Shelia Jackson Lee (D., Texas), are supporting this reform because they understand it’s a matter of fundamental fairness. They also understand that it is small businesses and individuals, disproportionately minorities and those less well off, that tend to get unknowingly entangled in the labyrinthine federal code; big businesses and their executives have teams of lawyers to advise them.
The fact is that 15 states have explicit “default” standards for criminal intent like those in the bipartisan task force’s bill. Michigan enacted such a reform most recently, in December 2015. The Michigan ACLU spoke in favor of the law, and it passed both houses of the legislature unanimously.
If President Obama really does care about getting something done on the issue of criminal-justice reform, he ought to heed his own advice and take a more civil tone in his own contributions to that debate. It’s hardly “constructive” to demonize others’ positions and adopt a “my way or the highway” negotiating stance. With Republicans enjoying majorities in both chambers, the criminal-intent piece of the reform effort — a product of more than two years’ effort by a bipartisan task force — is especially important if the president truly hopes to achieve meaningful progress toward criminal-justice reform in his remaining year in office.
Some recent and older related posts:
- Can and will Prez Obama effectively help get a federal sentencing reform bill to his desk?
- Might misguided mens rea reform concerns derail federal sentencing reform's momentum?
- "The Pressing Need for Mens Rea Reform"
- So thankful for federal sentencing reform moving ahead in Congress... but...
- "Our Voluminous Laws And The Need For ‘Mens Rea’ Reform"
Friday, January 15, 2016
Supreme Court grants cert on high-profile political corruption case and to explore malicious prosecution suits
As reported in this extended post by Lyle Denniston at SCOTUSblog, the Supreme Court granted certiorari review on eight new cases this afternoon. None of the cases involve sentencing issues, but there are two cases with criminal justice elements. Here are excerpts of Lyle's account of these grants and their place within the Court's overall docket:
Taking no action on the Obama administration’s plea for approval of its new immigration policy, the Supreme Court on Friday agreed to review the claim by former Virginia Governor Robert F. McDonnell that he is innocent of corruption or fraud because he did not take any official action to benefit a friend and benefactor. The Court also added seven other cases to its docket for decisions this Term.
The new orders filled some remaining slots for argument, presumably in March or April, but there were not enough to complete the full calendar. That means some cases could be granted next week and still be decided before the current Term ends in late June, especially if the briefing schedule were expedited....
The case involving the former governor of Virginia (McDonnell v. United States) was a high-profile prosecution that had appeared to remove him from any future chance of becoming a national leader in the Republican Party. Both he and his wife were convicted of corruption charges based on prosecutors’ claims that the governor used the powers of his office to help a Richmond businessman approach state agencies for help in promoting a health supplement his company was producing. The governor was sentenced to two years in prison, and Maureen McDonnell was sentenced to a year and a day in prison. She currently has an appeal pending in a lower court.
His appeal raised two issues, but the Court agreed to rule only on his claim that prosecutors used too expansive an interpretation of the “official acts” provision used in corruption cases under three federal bribery or fraud laws. The Court chose not to hear McDonnell’s claim that the trial judge did not do enough to bar jurors who might have been influenced by the heavy publicity that surrounded his case, before and during trial. McDonnell has been allowed by the Court to remain out of prison until his appeal of his conviction is decided by the Justices....
Manuel v. Joliet, Ill.: Does an individual who claims to have been a victim of police fabrication of evidence have a right to sue for discriminatory prosecution under the Fourth Amendment — an issue left open previously by the Court.
Monday, January 04, 2016
Excessive federal sentencing and strict mandatory minimums at center of armed "militia" occuptation in Oregon
Because I am back to full-time teaching this week, I have not yet had much time to research closely the sentencing backstory seemingly inspiring a group of Americans to take up arms against the federal government in Oregon. But a number of readers have made sure I did not miss that federal sentencing outcomes, and particularly the application of a 5-year mandatory minimum sentencing term, have been a central catalyst for what is now going on. Helpful, this new lengthy Washington Post piece, headlined "What spurred the armed occupation of a federal wildlife refuge in southeast Oregon," provides some of the key sentencing details:
The several-hundred-person procession through Burns, Ore., concluded at Dwight Hammond’s doorstep early Saturday evening. In a town of less than 3,000 tucked in Oregon’s southeast corner, it was a massive show of support for Hammond, 73, and his son Steven, 46, as they prepared to report to federal prison Monday.
“I thank everyone who came out here today,” Dwight Hammond told the supporters after he and his wife hugged each of them. “See you in five years.” The father and son had been sentenced last year for setting fires on federal land, the conclusion of two decades of clashes between the Hammond family and the federal government that have made the ranchers a cause celebre for some on the right.
For their supporters, the Hammonds represent the latest battle in a struggle as old as the American settlement of the northwest: pitting poor cattle farmers against the federal government and its land regulations in states such as Oregon, where the government owns more than half of the land.
“Most Americans, if they knew the story of the threats and the charges brought against these ranchers, they would say this isn’t right,” said Jeff Roberts, one of the organizers of Saturday’s rally. “We really wanted to show the family support and let them know that they’re not alone. That Americans don’t turn their backs on them.”
But there is a stark divide among the ranks over how to best remedy the plight of the cattle rancher. Some activists, such as Roberts, think the battle will be won through a deliberate public awareness campaign, rallies and town hall meetings. Others, including some armed militias, have another tact in mind: armed resistance.
As Saturday’s rally concluded, a small subsection of attendees, led by Ammon Bundy, began launching into impromptu speeches and, to the horror of many of the rally’s primary organizers, declared that it was time for the group to take up arms. “Those who want to go take a hard stand, get in your trucks and follow me!” Bundy declared to the group at the conclusion of the event, according to several people who were in attendance. “We were just aghast,” Roberts said.
Within the hour, Bundy and about a dozen armed supporters had seized Malheur National Wildlife Refuge, posting armed men at the front gate and vowing to occupy the federal land for “years.”
His father, Cliven Bundy, a Nevada rancher who in 2014 had an armed standoff with federal agents who were attempting to prevent him from illegally grazing his cattle on federal land, who is not himself inside the refuge, told a reporter in Oregon that “150 militia men” had occupied the federal land. As of 6 p.m. Sunday, the armed men remained at the refuge. “There were absolutely not 150 of them,” Roberts said Sunday morning. “He had a small handful of supporters, maybe a dozen. I saw them as they pulled out in their trucks.”...
After a two-week trial, Dwight and Steven Hammond were convicted by jury. They were sentenced in October to five years in prison for committing arson on federal land in 2001 and 2006. The pair had been sentenced and served time previously, but on appeal a federal judge ruled that their initial sentences had been too short.
In the 2001 incident, the men, who had leased grazing rights to the land for their cattle, said they had started the fires on their own land to try to prevent the spread of an invasive species of plant, and that the fire had inadvertently burned onto public land. Prosecutors said the fire consumed 139 acres of public land, and was set in an attempt to hide evidence after the men were part of a hunting party that illegally killed several deer on the federal land.
In 2006, the Hammonds allegedly set a “back fire” meant to protect their land after a series of lightning storms had started a fire on the federal property. Prosecutors said that fire then spread onto the federal land.
“We all know the devastating effects that are caused by wildfires. Fires intentionally and illegally set on public lands, even those in a remote area, threaten property and residents and endanger firefighters called to battle the blaze” Acting U.S. Attorney Billy Williams said in a statement issued after the Hammonds were sentenced. “Congress sought to ensure that anyone who maliciously damages United States’ property by fire will serve at least 5 years in prison. These sentences are intended to be long enough to deter those like the Hammonds who disregard the law and place fire fighters and others in jeopardy.”
The sentence outraged many fellow ranchers and constitutionalist groups in the northwest, who considered the case an overreach of federal regulation and of the federal prosecutors. “We don’t agree with the sentencing, so we came out to stand in solidarity and support,” said Brandon Curtis, president of the Idaho chapter of Three Percent, a constitutionalist group that was heavily involved in organizing the rally for the Hammonds.
Most infuriating about the Hammond case, their supporters say, is that the two men were charged under a federal terrorism statute that requires a five-year mandatory minimum sentence for anyone convicted of arson on federal property. “I don’t think anybody would argue that arson took place . . . but to sentence this family as terrorists, we think that is absolutely egregious,” Roberts said. “These are just country folk, they’re not terrorists.”
Roberts, Curtis and others traveled to the Hammond home in recent weeks and began holding town hall meetings to try to build more local support for them — assuring residents that they were not there to “upend the town.” Despite encountering a lot of local skepticism, the men eventually found some allies — who started an organization called Harney County Committee of Safety and participated in Saturday’s rally.
But at the same time, the Bundy family had begun speaking out on behalf of the Hammonds. In early November, Ammon Bundy began posting updates on the case to his Facebook pages and website. “This last Wednesday I spent a good part of the day in the Hammond’s home. We spoke for hours. Several times, I found the Hammond’s in tears when they explained the injustices that has destroyed their lives,” Ammon Bundy wrote on Nov. 21. “They were hopeful that the American people were going to stand for them. And that, just maybe, they would be able to return to the life they once knew.”
January 4, 2016 in Mandatory minimum sentencing statutes, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)
Sunday, January 03, 2016
Florida prosecutors honoring Army vet by threatening 120-years mandatory imprisonment for firing two shots in air
This local story from Jacksonville, headlined "Trial set to begin for Jacksonville man facing 120 years in prison for firing 2 shots," highlights why I find so many mandatory minimum sentencing statutes troublesome and why I worry about the extreme sentencing powers that these kinds of provisions often give to local, state and federal prosecutors. Here are the details of a Florida criminal justice story with many factors that likely undermines the public's faith in the soundness, sensibility and efficacy of modern criminal justice systems:
A Jacksonville man scheduled for trial this week faces a 120-year sentence if convicted, although no one was hurt during the six aggravated assaults he was charged with using a deadly weapon. Under Florida’s 10-20-Life law, Circuit Judge Jack Schemer would have no choice but to sentence 58-year-old Randal Ratledge to 20 years for each count. Jurors likely would not be aware of the mandated sentence.
Defense attorneys say Ratledge, a military veteran, does not belong in prison for the rest of his life and are critical of prosecutors for not waiving the requirement. Attorney Bill Sheppard said he’d be willing to plead Ratledge guilty if prosecutors would waive 10-20-Life and let Schemer impose any sentence that the judge thought was just. But the best offer he’s gotten is 18 years in prison, and that’s essentially a life sentence for someone Ratledge’s age, Sheppard said.
“The problem with our system now is judges have no discretion,” Sheppard said. “Prosecutors decide the sentence, not judges.”
The state’s 10-20-Life law requires that anyone convicted of a crime involving the firing of a gun gets at least 20 years in prison, with the only exception being someone who fired a warning shot when they have a legitimate reason to feel threatened. The law requires a 10-year prison sentence when someone uses a gun during the commission of a crime, but doesn’t fire the weapon.
According to police reports, Ratledge was talking with friends and neighbors near his Panther Ridge Court home in August 2012 when he went into the house and came back with a gun. He fired a shot in the air, then ran at the people outside screaming profanities while firing a second shot in their direction.
State attorney spokeswoman Jackelyn Barnard said prosecutors have been in discussions with defense attorneys over the case. “While we cannot get into specifics pretrial, the state has considered all options which includes the waiving of the 20-year minimum mandatory,” Barnard said. The Legislature has given prosecutors discretion to waive a minimum mandatory in appropriate cases, and State Attorney Angela Corey used this discretion when she concluded it is appropriate, Barnard said.
Attorney Bryan DeMaggio, who also is representing Ratledge, said he fired two shots in the air and not in the direction of any of his neighbors. DeMaggio and Sheppard plan to argue that he was “involuntarily intoxicated” because he had a bad reaction to an Ambien pill and doesn’t remember firing the gun. “He remembers taking the Ambien, and then he remembers being in shackles,” DeMaggio said.
Ratledge didn’t understand what he was doing and is not responsible for his actions, DeMaggio said. Ambien is usually used to help someone sleep, often to help people suffering from insomnia. Prosecutors have previously argued that the six people next door were in fear for their lives and traumatized by the experience.
The jury that hears the case is not supposed to know Ratledge faces 120 years. Jurors usually aren’t advised what sentence a defendant faces and are told their only responsibility is to determine whether the defendant is guilty. Sheppard and DeMaggio asked Schemer to make an exception in this case and allow jurors to know, but the judge denied their request.
This is the second time Ratledge will go on trial. He was previously convicted of the same charges, but that conviction was thrown out before sentencing when Circuit Judge James Daniel ruled that Ratledge’s Fifth Amendment right against self-incrimination was violated during the trial. Officer C.R. Deal, who questioned Ratledge the night he fired the shots, testified in front of the jury that Ratledge told him “he made a mistake and that he did not want to talk about the incident.” Daniel found that the comment unfairly prejudiced the jury since they knew Ratledge had invoked his right to remain silent, and exercising that right should not be held against a criminal defendant.
Jury selection is scheduled to begin Monday. Which could be bad timing for Ratledge. The Florida Legislature is considering a bill that would remove aggravated assault from the list of crimes that fall under 10-20-Life. The legislation unanimously passed criminal justice subcommittees in both the Florida House and Senate, but if it becomes law it will likely take until spring or summer.... DeMaggio said the legislation as it’s now written would not be retroactive, so if Ratledge is convicted this month his sentence would be unlikely to be overturned.
Sheppard said Ratledge is holding up well. He is out on bail but required to stay in his home most of the time. “He’s a soldier trained by the U.S. Army,” Sheppard said. “He was trained to deal with it.”
Among the aspects of this case that I find so frustrating is the way in which an extreme mandatory minimum sentencing statute is precluding the just and efficient resolution of a criminal matter seemingly because state prosecutors are unwilling to trust a judge to impose a fair and appropriate sentence on an Army veteran who, it seems, simply acted very badly when having a dispute with neighbors. Even if one thinks the defendant's "Ambien defense" is a bunch of BS, I am hard-pressed to understand why it would be appropriate for an Army vet to be facing decades in prison for foolishly firing some shots in the air in the midst of a summer squabble. And, critically, it seems that the defendant and his attorney have long been willing to resolve this case without the expense now of TWO criminal trials if prosecutors were just willing to let this case be resolved like most of us think cases ought to be resolved: with a neutral judge imposing a sentence after hearing advocacy from the prosecution and defense about what sentence would be fitting.
But for reasons that need not be explained in any way and that are not subject to any review, it seem a group of local prosecutors have decided that they want this Army vet to die in prison for his horrific acts of firing shots in the air one day in August 2012. And because of Florida's 10-20-Life mandatory minimum sentencing laws, these prosecutors have the exclusive power to demand that this vet essentially give up the rest of his life to resolve this case. Perhaps if prosecutors had to explain their charging and bargaining behavior in this case, I could better understand why they have taken such a seemingly ridiculously tough sentencing posture. But they do not, and that is my most fundamental gripe with mandatory minimum sentencing statutes: they not only give prosecutors extreme charging/bargaining/sentencing powers, but they enable prosecutors to exercise this power without being subject to any transparency, review or accountability. Grrr.
Thursday, December 24, 2015
Is it reasonable to ask Santa Claus to bring a certiorari grant on acquitted conduct sentencing?
The silly question in the title of this post is prompted by the terrific Christmas-week opinions authored by DC Circuit Judges Kavanaugh and Millett in concurrences to the denial of en banc rehearing in US v. Bell, No. 08-3037 (DC Cir. Dec. 22, 2015) (available here). Regular readers know that I have long been troubled by the use of so-called acquitted conduct in the calculations of an applicable guideline range, both opinions in Bell spotlight well some of the reasons why.
Interestingly, Judge Kavanaugh suggests he thinks Congress or the Sentencing Commission may need to act in order now to address problems with acquitted conduct. But Judge Millett's opinion in Bell provides, in the space of eight pages, a thoughtful and thorough accounting of why the Supreme Court should consider anew the constitutional validity of sentences enhanced dramatically on the basis of allegations that a jury considered insufficient for a lawful conviction. I will provide here an exceprt from the start and end of Judge Millett's opinion:
This case is one in an “unbroken string of cases” encroaching on the Sixth Amendment right to a trial by jury, Jones v. United States, 135 S. Ct. 8, 9 (2014) (Scalia, J., joined by Thomas & Ginsburg, JJ., dissenting from the denial of certiorari). The government indicted Gregory Bell for a “mélange” of crimes, “including conspiracy and crack distribution.” Panel Op. 2. Bell exercised his constitutional right to a trial by jury on those charges, and the jury acquitted Bell of ten of the thirteen charges against him, “including all narcotics and racketeering conspiracy charges.” Panel Op. 3. The jury convicted Bell of only three crack cocaine distribution charges that together added up to just 5 grams.
Because Bell had no significant criminal history and the amount of cocaine was relatively small, Bell’s Sentencing Guidelines range for the offense of conviction would have been 51 to 63 months. At sentencing, however, the district court found that Bell had engaged in the very cocaine conspiracy of which the jury had acquitted him, and sentenced Bell to 192 months in prison — a sentence that was over 300% above the top of the Guidelines range for the crimes of which he was actually convicted.
In a constitutional system that relies upon the jury as the “great bulwark of [our] civil and political liberties,” Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (quoting 2 J. Story, Commentaries on the Constitution of the United States 540– 541 (4th ed. 1873)), it is hard to describe Bell’s sentence as anything other than a “perverse result,” United States v. Watts, 519 U.S. 148, 164 (1997) (Stevens, J., dissenting). The foundational role of the jury is to stand as a neutral arbiter between the defendant and a government bent on depriving him of his liberty. But when the central justification the government offers for such an extraordinary increase in the length of imprisonment is the very conduct for which the jury acquitted the defendant, that liberty-protecting bulwark becomes little more than a speed bump at sentencing....
While I am deeply concerned about the use of acquitted conduct in this case, I concur in the denial of rehearing en banc. That is because only the Supreme Court can resolve the contradictions in the current state of the law, by either “put[ting] an end to the unbroken string of cases disregarding the Sixth Amendment” or “eliminat[ing] the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.” Jones, 135 S. Ct. at 9 (Scalia, J., joined by Thomas and Ginsburg, JJ., dissenting from denial of certiorari). Though I am not certain Bell’s argument is directly foreclosed by Supreme Court precedent, my colleagues on the panel have done their best to navigate existing precedent, recognizing that the Supreme Court has thus far declined to address this issue. Going en banc would only delay affording the Supreme Court another opportunity to take up this important, frequently recurring, and troubling contradiction in sentencing law.
Despite seemingly having a number of sound vehicles for reconsidering Watts in the wake of Apprendi, Blakely, Booker et al., the Supreme Court has persistently dodged this acquitted conduct issue for well over a decade. Thus, we may need some of the holiday magic of Old Saint Nick in order to finally get the Justices to give needed attention to "this important, frequently recurring, and troubling contradiction in sentencing law."
December 24, 2015 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)
Highlighting how Chrismas clemency cheer brings a lump of coal for those left off Prez Obama's list
This Washington Post article, headlined "Obama’s clemency list brings joy to the lucky and anguish to the disappointed," notes the sadness felt by federal prisoners and their families when certain names fail to appear on the latest list of commutations. Here are excerpts from a lengthy piece that gives special attention to the (in)famous case of Weldon Angelos:
The president wants to use his clemency power to undo past injustices, and on Friday, in the largest single-day grant of his presidency, he signed 95 commutations. They brought joy to families across the country.
“God be the Glory,” said Sharanda Jones, a 48-year-old Texas woman who was sentenced to life in prison without parole for a cocaine offense. She was a first-time, nonviolent offender. “I am overjoyed.”
But for thousands of other prisoners, who may also meet the president’s criteria, their exclusion was a hard blow. “It was a great day for those who won the lottery and one more disappointment for everyone in the pipeline who should be on the list,” said Amy Povah, a former inmate and the founder of the Can-Do Foundation, a clemency advocacy group.
criminal justice reform advocates of an irrationally severe system. He was sentenced in 2004 to a mandatory 55 years in prison without the possibility of parole after he was arrested for selling marijuana in three separate transactions with a Salt Lake City police informant, while possessing a firearm. Angelos never used or pulled out the gun, but the informant testified that he saw a gun when he made the buys, and that triggered a statute referred to as “gun stacking,” which forced the judge to give him a long sentence.
Angelos’s case has been widely championed, including by Families Against Mandatory Minimums and conservative billionaire Charles Koch. Former U.S. District Court judge Paul G. Cassell, who was appointed by President George W. Bush, has called the sentence he imposed on Angelos “unjust, cruel and even irrational.” Mark Holden, general counsel and senior vice president of Koch Industries, said the failure to commute Angelos’s sentence Friday was “disappointing and devastating for Weldon and his family.”
“Think of anything in your life that you’ve waited for,” Holden said. “Everything else pales in comparison to this. It is unclear why Angelos failed to get clemency. A Justice Department spokeswoman said that officials do not discuss individual clemency petitions. Another official noted that the department is processing them “as thoroughly and expeditiously as we can.”
Each of the four times that the president has announced his commutations has been difficult for Angelos, but this time cut the deepest. And it’s not because it came around the holidays. It’s because this group of inmates will be released on April 16. “If I had been given clemency this time,” Angelos, a father of three, said in an interview at the Federal Correctional Institution at Mendota, “I would have been out for my oldest son’s graduation from high school in June.”
When he came in from the track, Angelos called his sister, Lisa. She had heard he wasn’t on the list, and she was crying. While talking to her, he looked up and saw Obama on the prison television set making his official announcement at his end-of-year news conference. “I felt like someone had punched me in the stomach,” he said.
Similar scenes were playing out in other federal prisons, said Angelos’s lawyer, Mark Osler, a law professor at the University of St. Thomas in Minnesota and a co-founder of New York University’s Clemency Resource Center. He represents nine clients who are seeking clemency. “I dreaded the phone ringing,” Osler said in a blog post he called “Sunday Reflection: The sad call”: “I looked at the screen and it said what I feared it would: ‘Unknown,’ which is how calls from prison always come up. I let it ring once, twice, three times before pressing ‘answer.’ . . . And each time I talked to them about what had happened, how I did not know how they picked the lucky ones. They told me, in heavy voices, what they would miss: a son’s graduation, the last days of a mother in fading health. And each time I hung up and sat in silence.”
White House Counsel W. Neil Eggleston said last week that Obama, who has granted 184 clemencies, has already commuted the sentences of more individuals than the past five presidents combined. “We expect that the president will grant more commutations and pardons to deserving individuals in his final year in office,” Eggleston added.
But clemency advocates say that Obama has put himself in a different position than previous presidents. Instead of granting a moment of mercy to an inmate — much like the odds of being struck by lightning — Obama’s Justice Department set out eight specific clemency criteria, including having served at least 10 years, having no significant criminal history prior to conviction and demonstrating good behavior in prison. And he raised the hopes of thousands who believed they could qualify. “What the president announced was a categorical grant to people who met those eight criteria,” Osler said. “If it’s a categorical grant, we should be seeing consistency.”
I suspect there may well be a cruel irony to the decision not to have (my former pro bono client during his 2255 efforts) Weldon Angelos on the lastest list of commutation: I think Prez Obama and his advisors might reasonably fear that granting clemency to Angelos now could undercut some urgency in Congress to continue pressing forward with statutory sentncing reform. GOP Senator Mike Lee has often mentioned the Angelos case in his advocacy for federal sentencing reform, and the stacking of mandatory minimums that resulted in Angelos' extreme sentence would be fixed in the reform bills that have been slowly moving through Congress.
I suspect Prez Obama is especially eager to see Angelos get relief from a duly enacted law, and I remain hopeful that Angelos will appear on a clemency list before this time next year if Congress in 2016 proves unable to reform the problematic provision that led to Angelos receiving a mandatory 55 years for a few minor marijuana sales. In the meantime, I hope Weldon, his family and all those advocating on his behalf might get a glimmer of comfort from the possibility that Angelos' continued incarceration may actually foster continued congressional reform efforts which would benefit thousands of fellow federal prisoners.
Wednesday, December 23, 2015
Based on SCOTUS Johnson ruling, Seventh Circuit declares statutory sentence enhancement for illegal reentry offenses
A helpful reader made sure I did not miss a notable post-Johnson vagueness ruling by a Seventh Circuit panel in US v. Vivas-Ceja, No. 15-1770 (7th Cir. Dec. 22, 2015) (available here). Here is how the panel opinion gets started:
Raul Vivas-Ceja pleaded guilty to illegally reentering the United States after removal, the maximum sentence for which is raised to 20 years if the defendant has been convicted of an “aggravated felony” prior to removal. See 8 U.S.C. § 1326(b)(2). As relevant here, the definition of “aggravated felony” is supplied by the definition of “crime of violence” in 18 U.S.C. § 16(b), which includes “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
The district court concluded that Vivas-Ceja’s Wisconsin conviction for fleeing an officer was a crime of violence under § 16(b), raising the maximum sentence to 20 years. The court imposed a sentence of 21 months. Vivas-Ceja appeals, arguing that § 16(b)’s definition of “crime of violence” is unconstitutionally vague in light of Johnson v. United States, 135 S. Ct. 2551 (2015).
The Fifth Amendment’s Due Process Clause prohibits the government from depriving a person of liberty under a statute “so vague that it fails to give ordinary people fair notice … or so standardless that it invites arbitrary enforcement.” Id. at 2556. In Johnson the Supreme Court held that sentencing a defendant under the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), violates this prohibition. Section 16(b) is materially indistinguishable from the ACCA’s residual clause. We hold that it too is unconstitutionally vague according to the reasoning of Johnson. We therefore vacate Vivas-Ceja’s sentence and remand for resentencing.
Friday, December 11, 2015
Prez candidate Donald Trump pledges (seemingly unconstitutional) death penalty mandate for cop killers
As reported in this article from The Hill, "Republican presidential front-runner Donald Trump on Thursday vowed to issue an executive order to mandate the death penalty for anyone who kills a police officer." Here is more:
“One of the first things I’d do in terms of executive order, if I win, will be to sign a strong, strong statement that would go out to the country, out to the world, anybody killing a police man, a police woman, a police officer, anybody killing a police officer, the death penalty is going to happen,” he said.
“We can’t let this go,” he added, speaking to a New Hampshire crowd alongside the New England Police Benevolent Association, shortly after the group voted to endorse Trump.
The outspoken businessman referenced the 2014 shooting of two New York City police officers in their squad car, which prompted significant outcry from some conservatives accusing President Obama of fostering resentment against police officers. “I want to let you know, the police and law enforcement in this country, I will never ever let them down,” he said. “The job they do and the job all you in this room do is second to none, and everyone in our country knows that.”
As most informed readers likely know, the Supreme Court back in 1976 first declared that a system of mandatory death sentencing was unconstitutional, and the Justices reaffirmed this "individualization" constitutional requirement in a number of subsequent ruling. But Justice Scalia has long complained about the Supreme Court finding such a limit in the Constitution, and it is certainly possible that a President Trump might be inclined to seek to live up to this campaign pledge by seeking to overturn prior SCOTUS precedent precluding any capital punishment mandates.
Thursday, December 03, 2015
"The government is abusing mandatory minimums: How law enforcement is ruining a generation of Americans"
The title of this post is the headline of this lengthy Salon article authored by Daniel Denvir. Here are excerpts:
The Obama administration has called for the criminal justice system to be reformed and for the population of our enormous prison system to be reduced, encouraging reform efforts in Congress and pledging to speed up a moribund clemency process so that people serving unjustly harsh sentences can be freed. The Department of Justice has taken a lead role, forcing local police departments to clean house and, under former Attorney General Eric Holder, pledging to restrict federal prosecutors’ use of harsh mandatory minimums....
There is growing concern, however, that federal prosecutors in the 94 U.S. Attorneys’ Offices nationwide are implementing Holder’s directives unevenly — or even resisting implementation entirely. David Patton and Jon Sands, co-chairs of the Federal Defender Legislative Committee, wrote in a recent letter to House Judiciary Committee leadership that “there is widespread disregard of DOJ policy among line federal prosecutors about when to trigger those severe enhancements. And the enhancements are regularly used for no other reason than to force people to waive their trial rights.”
851 enhancements double five- and ten-year mandatory minimum drug sentence for offenders with one prior “felony” drug conviction, and impose a life without parole sentence for offenders with two drug priors facing a ten-year sentence. What counts as a so-called felony, however, is remarkably broad [and] it can include state convictions so minor that they did not result in jail time. It can even include state misdemeanors...
Steve Cook, the president of the National Association of Assistant U.S. Attorneys ... is leading a campaign against sentencing reform legislation in Congress, and he disagrees that prosecutors use 851s to coerce cooperation. “One of the criticisms I hear frequently from commentators is prosecutors want these mandatory minimums and 851s so they can strong arm guilty pleas. Well, that isn’t the case,” Cook said. “851s, those were designed to put recidivists in prison for longer.”
There is evidence, however, to suggest that that is often precisely how they are used. Judge Gleeson detailed one such instance in a 2013 opinion protesting his own sentencing of Lulzim Kupa, and the prosecutorial abuse of mandatory minimums more generally. Based on more than five kilograms of cocaine alone, Kupa faced a 10-year mandatory minimum sentence. But Kupa had two prior marijuana trafficking convictions. If prosecutors so decided, they would trigger life without parole upon conviction.
On March 5, 2013, prosecutors offered Kupa a plea deal. The government would withdraw the 10-year mandatory minimum and instead recommend a sentence of between 110-137 months. With good time credits, Kupa could serve seven years and ten months, Gleeson wrote. But Kupa had just one day to think the agreement over, and he didn’t accept it. And so prosecutors twisted the screws tighter, filing the 851 information detailing his two prior marijuana convictions. Unless prosecutors withdrew the notice, he would be automatically sentenced to life without parole upon conviction. “Just like that, a defendant for whom the government, only ten days earlier, was willing to recommend an effective sentence of less than eight years was looking at life in prison without the possibility of parole,” wrote Gleeson.
December 3, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)
Tuesday, December 01, 2015
"Our Voluminous Laws And The Need For ‘Mens Rea’ Reform"
The title of this post is the title of this new posting at Right on Crime. It gets started this way:
As Congress has begun to consider various reforms to the federal criminal justice system in the last several months — sentencing and re-entry policies in particular — another element of federal law that merits consideration is beginning to receive its due, as well: namely, ensuring that criminal statutes or regulations have adequate mens rea, or criminal intent, requirements.
In yesterday’s edition of the Cato Daily Podcast, Caleb Brown interviewed Robert Alt, President of the Buckeye Institute in Ohio, about the current landscape of state and federal criminal law, where Alt succinctly describes the growing problem: “We’ve noticed over the years, both at the Congressional level and the state level, that more and more crimes are being passed that either have no criminal intent requirement at all — where you can be convicted for mere accidents — or they have inadequate mens rea requirements.”
A long-standing tradition among common law jurisdictions has held that criminal actions generally have two elements: the bad action itself (actus reus), and a guilty state of mind (mens rea). In recent decades, legislatures haven’t had much difficulty passing statutes detailing new crimes, or enabling regulatory agencies to concoct administrative rules that also bear criminal penalties. As Alt explains, an American Bar Association task force found in 1998 that the body of federal criminal law was so cumbersome that a single, “conveniently accessible” repository listing them all didn’t exist. Shortly thereafter, they commissioned a study to generate an inventory, in which case over 3,000 federal criminal statutes were detailed.
In 2007, a similar inventory performed by the Heritage Foundation and others found that the number had jumped to roughly 4,500, and this is to say nothing of federal regulatory offenses; estimates have pegged the Federal Register at approximately 300,000 regulations, though no one knows the exact number as those responsible for finding them eventually stop counting.
What hasn’t occurred with regularity as these new laws or rules are being promulgated is inclusion of the second element of crime: establishing culpable intent on the part of the actor. This has the effect of creating new criminals out of people who had no intention or knowledge of running afoul of the law, and can have adverse, long-term consequences.
"Negotiating Accuracy: DNA in the Age of Plea Bargaining"
The title of this post is the title of this notable new paper authored by Alexandra Natapoff and available via SSRN. Here is the abstract:
Hundreds of exonerations have made DNA a kind of poster child for the innocence movement and the demand for more accurate evidence in criminal cases. But most wrongful convictions are not simply the result of evidentiary mistakes. In the marketplace of plea bargaining, convictions are the result of numerous inputs — a defendant’s criminal record, prosecutorial bargaining habits, the size of the trial penalty, whether the defendant is out on bail — that have nothing to do with the accuracy of the evidence. The bargained nature of these convictions means that accurate evidence is just one piece — and not always the most important piece — of the larger negotiation process that establishes guilt.
We might say that the plea process is structurally tolerant of inaccuracy, precisely because it transforms accuracy into a commodity that may be traded and negotiated away in exchange for agreement. This is a recipe for wrongful conviction. The innocence movement, for example, has uncovered numerous cases where innocent defendants pled guilty to homicide and rape in order to avoid the death penalty. The pressures to plead are likewise pervasive in the misdemeanor system, in which thousands of people are rushed through assembly-line processes and routinely plead guilty to minor crimes of which they are demonstrably innocent. Ultimately, we should recognize plea bargaining as a source of wrongful conviction in its own right, and add it to the canonical list of wrongful conviction sources such as mistaken eyewitness testimony, lying informants, and bad forensics.
You be the judge: what federal sentence for beloved elderly preist who embezzled half-million dollars?
This local article, headlined "Dozens ask judge for mercy in sentencing of embezzling Detroit-area Catholic priest," provides the interesting backstory for an interesting federal sentencing scheduled for late today. Here are the basics:
A beloved Catholic priest in Troy was scorned when allegations came forth that he embezzled more than $500,000 from church coffers. Rev. Edward A. Belczak, 70, admitted to diverting $572,775 collected by the church, most of which he kept in a secret private bank account. He also spent $109,570 to purchase a Florida condo in 2005.
Despite the admissions, dozens of people, including many of the parishioners he defrauded, have come forward to ask for a lenient sentence on behalf of the priest who headed St. Thomas More church in Troy from 1984 until 2013. He's scheduled to be sentenced Tuesday.
Belczak pleaded guilty to mail fraud as part of the plea agreement. In exchange, the U.S. Attorneys Office dismissed more serious charges and asked U.S. District Judge Arthur J. Tarnow to sentence Belczak to just over three years in prison.
Attorney John J. Morad, a friend and supporter of the priest, thinks any prison time is too much. "He made a terrible mistake and I know that he is embarrassed, ashamed and humiliated by the fact that he disappointed so many people who have grown to love and respect him for the work he has done among the people," Morad wrote in a letter to the judge. " ... I know he has confessed his sins and I'm certain God has forgiven him. Should we do anything less?"
The defense has asked for home detention, while sentencing guidelines call for a prison term of between 33 and 41 months. The theft from the church is believed to have occurred between 2004 and 2012.
UPDATE: This Detroit Free-Press article about the sentencing of Father Belczak report on the basic outcome via its headline: "Embezzling priest gets 27 months: 'It's .. my destiny'"
Friday, November 27, 2015
Spotlighting why ending the drug war could make a big dent in mass incarceration
This new Washington Post Wonkblog posting by Christopher Ingraham, headlined "Drug offenders make up nearly one-third of prison admissions, new analysis shows," details one reason why I think ending the so-called "war on drugs" would be a very important first step toward tackling the problem of modern mass incarceration. Here is how it starts (with links from the source):
Drug policy activists long have said that decriminalizing parts of the drug trade would relieve some of the burden on overcrowded prisons. But some researchers have pushed back against this notion in recent years. They point out that drug offenders account for only about 1 in 5 state and federal inmates. The Urban Institute showed earlier this year that cutting drug admissions in half would reduce the state prison population by only about 7 percent. Facts like these have led some to conclude that ending the drug war will do little to end the mass incarceration crisis.
But in a new analysis published this week, Brookings Institution fellow Jonathan Rothwell says that arguments about the impact of drug reforms on prison populations have overlooked one key distinction: the difference between the number of people in prison at any given time, and the number of people moving into and out of prison. Rothwell calls this "stock and flow."
He points out that while drug offenses account for only 20 percent of the prison population, they make up nearly one-third — 31 percent — of the total admissions to prison. The reason for the difference? Drug offenders typically serve shorter sentences than, say, murderers or other violent criminals. So simply looking at the number of people in prison at a given point in time understates the true impact of drug laws on incarceration.
"Drug crimes have been the predominant reason for new admissions into state and federal prisons in recent decades," Rothwell writes. "In every year from 1993 to 2009, more people were admitted for drug crimes than violent crimes."
Rothwell agrees that rolling back the drug war won't totally solve the incarceration problem. "But it could help a great deal, by reducing exposure to prison," he writes. Even a brief jail or prison sentence — even just an arrest — can have dire consequences for people at the poorer margins of society. A 30-day jail term for a pot bust, for instance, can mean the loss of a job, the loss of income, and an eventual turn to crime to survive.
Thursday, November 26, 2015
So thankful for federal sentencing reform moving ahead in Congress... but...
this recent article from the New York Times highlights why I will not celebrate the reform movement's accomplishments until a bill is being signed by the President. The article, headlined "Rare White House Accord With Koch Brothers on Sentencing Frays," details what has become more controversial elements of bipartisan criminal justice reform efforts. Here are excerpts:
For more than a year, a rare coalition of liberal groups and libertarianminded conservatives has joined the Obama administration in pushing for the most significant liberalization of America’s criminal justice laws since the beginning of the drug war. That effort has had perhaps no ally more important than Koch Industries, the conglomerate owned by a pair of brothers who are wellknown conservative billionaires.
Now, as Congress works to turn those goals into legislation, that joint effort is facing its most significant test — over a House bill that Koch Industries says would make the criminal justice system fairer, but that the Justice Department says would make it significantly harder to prosecute corporate polluters, producers of tainted food and other whitecollar criminals.
The tension among the unlikely allies emerged over the last week as the House Judiciary Committee, with bipartisan support, approved a package of bills intended to simplify the criminal code and reduce unnecessarily severe sentences. One of those bills — which has been supported by Koch Industries, libertarians and business groups — would make wholesale changes to certain federal criminal laws, requiring prosecutors to prove that suspects “knew, or had reason to believe, the conduct was unlawful,” and did not simply unknowingly violate the law.
Many laws already carry such a requirement — known as “mens rea” — but Congress left it out of many others, and libertarian groups say that has made it too easy to unknowingly violate obscure laws. Some environmentalists argue, however, that the real motive of Charles Koch, the philanthropist and the company chairman, in supporting the legislation is to block federal regulators from pursuing potential criminal actions against his family’s network of industrial and energy companies, a charge the company denies.
If the bill passes, the result will be clear, said Melanie Newman, the Justice Department spokeswoman. “Countless defendants who caused harm would escape criminal liability by arguing that they did not know their conduct was illegal” she said.
The debate over the bill, sponsored by Representative Jim Sensenbrenner, Republican of Wisconsin, has become particularly complicated for House Democrats, who have been warned that its passage would be essential for obtaining support from Republicans for a larger package of criminal justice bills. Many liberal Democrats see this session of Congress as a rare chance to address what they see as significant unfairness in the criminal justice system. Many of them feel that anything that jeopardizes that opportunity, like trying to block Mr. Sensenbrenner’s bill, is not worth doing. Two liberal members of the Judiciary Committee, Representatives John Conyers Jr. of Michigan and Sheila Jackson Lee of Texas, were cosponsors of the bill.
Mr. Conyers, in a statement on Tuesday, said he supported the bill, which the Judiciary Committee approved by voice vote last week, because outside parties had raised “a number of concerns about inadequate, and sometimes completely absent, intent requirements for federal criminal offenses.” But he said he was committed to finding a way to address the Justice Department’s concern....
“There are some groups on the left that mistrust the people who have put this proposal forward,” said John G. Malcolm, who served in the Justice Department’s criminal division during the Bush administration. He now works at the Heritage Foundation, a conservative research center, where he has aggressively pushed for the change in the mens rea provisions. “It is an unfair and unwarranted characterization,” he added.
Koch Industries and conservative groups have some important liberal allies on the matter, including the National Association of Criminal Defense Lawyers. Norman L. Reimer, the organization’s executive director, said it was not surprising the Justice Department opposed the legislation. “D.O.J. is always up in arms over anything that looks like they’d have to do their jobs,” he said. If the Justice Department’s job was harder in some cases, he said, that would be a good thing. For example, he cited a case in which prosecutors charged a fisherman with violating federal accounting laws by tossing undersized fish overboard. (Koch Industries made a major donation to the defense lawyers’ group last year.)
November 26, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)
Friday, November 20, 2015
"Prison Time Surges for Federal Inmates"
The title of this post is the headline of this notable Issue Brief released this wqeek by the Pew Public Safety Performance Project. Here is how it gets started (with notes omitted):
The average length of time served by federal inmates more than doubled from 1988 to 2012, rising from 17.9 to 37.5 months. Across all six major categories of federal crime — violent, property, drug, public order, weapon, and immigration offenses — imprisonment periods increased significantly. (See Figure 1.) For drug offenders, who make up roughly half of the federal prison population, time served leapt from less than two years to nearly five.
Mandatory minimum sentencing laws, the elimination of parole, and other policy choices helped drive this growth, which cost taxpayers an estimated $2.7 billion in 2012 alone. Despite these expenditures, research shows that longer prison terms have had little or no effect as a crime prevention strategy — a finding supported by data showing that policymakers have safely reduced sentences for thousands of federal offenders in recent years.
Two factors determine the size of any prison population: how many offenders are admitted to prison and how long they remain. From 1988 to 2012, the number of annual federal prison admissions almost tripled, increasing from 19,232 to 56,952 (after reaching a high of 61,712 in 2011). During the same period, the average time served by released federal offenders more than doubled, rising from 17.9 to 37.5 months. These two upward trends ...caused a spike in the overall federal prison population, which jumped 336 percent, from 49,928 inmates in 1988 to an all-time high of 217,815 in 2012. One study found that the increase in time served by a single category of federal offenders — those convicted of drug-related charges — was the “single greatest contributor to growth in the federal prison population between 1998 and 2010.”
The long-term growth of this population has driven a parallel surge in taxpayer spending. As Pew reported in February 2015, federal prison spending rose 595 percent from 1980 to 2013, from $970 million to more than $6.7 billion in inflation-adjusted dollars. Taxpayers spent almost as much on federal prisons in 2013 as they spent in 1980 on the entire U.S. Justice Department — including the Federal Bureau of Investigation, the Drug Enforcement Administration, and all U.S. attorneys.
Brennan Center produces "preliminary analysis" of crime trends in 2015
The Brennan Center for Justice this week has produced this notable report titled "Crime in 2015: A Preliminary Analysis." Here is its introduction:
Major media outlets have reported that murder has surged in some of the nation’s largest cities. These stories have been based on a patchwork of data, typically from a very small sample of cities. Without geographically complete and historically comparable data, it is difficult to discern whether the increases these articles report are purely local anomalies, or are instead part of a larger national trend.
This report provides a preliminary in-depth look at current national crime rates. It provides data on crime and murder for the 30 largest U.S. cities by population in 2015 and compares that to historical data. This analysis relies on data collected from the Federal Bureau of Investigation and local police departments. The authors were able to obtain preliminary 2015 murder statistics from 25 police departments in the nation’s 30 largest cities and broader crime data from 19 of the 30. The data covers the period from January 1 to October 1, 2015. As this report relies on initial data and projects crime data for the reminder of the year, its findings should be treated as preliminary as they may change when final figures are available.
This report’s principal findings, based on the data presented in Table 1, are:
Murder in 2015: The 2015 murder rate is projected to be 11 percent higher than last year in the majority of cities studied. Overall, 11 cities experienced decreases in murder, while 14 experienced increases. Yet, this increase is not as startling as it may first seem. Because the underlying rate of murders is already so low, a relatively small increase in the numbers can result in a large percentage increase. Even with the 2015 increase, murder rates are roughly the same as they were in 2012, and 11 percent higher than they were in 2013. It should also be noted that murder rates vary widely from year to year. One year’s increase does not necessarily portend a coming wave of violent crime.
Crime Overall in 2015: Crime overall in 2015 is expected to be largely unchanged from last year, decreasing 1.5 percent. This report defines overall crime as murder and non-negligent manslaughter, aggravated assault, robbery, burglary, larceny, and motor vehicle theft. The increase in the murder rate is insufficient to drive up the crime rate, and using murder as a proxy for crime overall is mistaken. It is important to remember just how much crime has fallen in the last 25 years. The crime rate is now half of what it was in 1990, and almost a quarter (22 percent) less than it was at the turn of the century.
Thursday, November 19, 2015
Jared Fogle given (above-guideline and above-prosecutor-recommend) sentence of 188 months in federal prison for sex offenses
As reported in this local article, "Jared Fogle was sentenced to 15 years, eight months in prison Thursday for possession and distribution of child pornography and traveling across state lines for commercial sex with a minor." Here is more about the sentencing:
Judge Tanya Walton Pratt announced the sentence for the former Subway pitchman in federal court in Indianapolis. Fogle was taken into custody of the U.S. Marshal after the four-hour, 42-minute hearing. He was handcuffed behind his back and led out of the courtroom as family members hugged and cried.
Immediately after the hearing, Fogle blew a kiss and waved goodbye to family members in the front row. About a dozen family members and friends attended the hearing. The sentence is more than the 12 1/2 years that prosecutors agreed to seek in a plea deal. Pratt said the advisory sentence range of 135 to 168 months "does not sufficiently account for the defendant's criminal conduct."
Federal prisoners must serve at least 85 percent of their sentences. The judge recommended that Fogle be sent to a prison in Littleton, Colo., because of its program for sex offenders. "Federal judges do not sentence based on emotion or public sentiment," Pratt said. She added, "The level of perversion and lawlessness exhibited by Mr. Fogle is extreme."
She described Fogle, 38, as having had a "privileged" upbringing before becoming "obsessed" with sex and minors. Pratt talked about Fogle's journey from being morbidly obese while at Indiana University to losing weight and being discovered by Subway. "What a gift to have such a professional windfall fall in your lap," Pratt said.
Pratt said she believes Fogle is sincere in his remorse and took into account the $1.4 million in restitution he has paid. "This defendant's celebrity cuts both ways," she said. "He will likely get protection when he goes to the Bureau of Prisons."
Prior related posts:
- Subway pitchman and his "Jared Foundation" subject to serious child porn investigation
- What sort of child porn federal plea deal might be in works for Subway pitchman Jared Fogle?
- Even with plea deal, Subway pitchman Jared likely facing at least a decade in federal prison for sex offenses
- Has Jared Fogle gotten a sweetheart plea deal and/or celebrity treatment for sex crimes?
- Federal child porn downloaders complaining to judges about Jared Fogle's (too sweet?) plea deal
- Federal prosecutors seeking plea-deal max sentence of 12.5 years for Jared Fogle
November 19, 2015 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (34)
Wednesday, November 18, 2015
"Some Women Charged Under Tennessee’s Hated Fetal Assault Law Say It’s Not So Bad"
The title of this post is the headline of this interesting new Nashville Public Radio piece (found by my great research assistant) that provides interesting perspectives on a controversial Tennessee criminal law responding to modern drug abuse concerns. Here are excerpts:
Tennessee has attracted international attention for making it a crime to give birth to a drug-dependent baby. This means women addicted to pain pills or heroin can be charged with assault to a fetus. After less than two years in effect, the controversial law must be renewed, or it will expire. While the measure has drawn worldwide disdain from women's health and civil liberty advocates, some of the women who’ve been charged say the threat of jail-time was a wake-up call.
“If I didn’t go through what I went through, I’d probably be down that same road right now," says 26-year-old mother Kim Walker of Johnson City. "But now I’m a totally different person. And I’m on the good road, not the bad road.” Last year, Walker went into labor at home.... "One push and he was out," she says. “My husband delivered him. Didn’t know he was drug exposed until we got to the hospital," she says. "When we got to the hospital, they took him straight from my hospital room. I didn’t get to see him, didn’t get to hold him, nothing.”
He spent 28 days in the neonatal intensive care unit, withdrawing from the painkillers Walker was taking illegally. Walker had to take a drug test, which she failed. Then she was charged with assault. But like most women, she chose treatment in order to avoid conviction. Rehab was a rocky road. There’s been a relapse along the way. But in late October, Walker gave birth to another son — Jack — this time, drug-free.
The idea for Tennessee’s fetal assault law didn’t originate from doctors, nurses or social workers. It came from law enforcement and legislators. In fact, the medical community lined up in resistance, saying punishment is no way to treat addiction — especially when young mothers are singled out.
Lisa Tipton falls somewhere in the middle. “I don’t feel the law is perfect," she says. "I don’t feel the law is necessarily the solution...but we were absolutely bombarded.” Tipton runs a non-profit treatment center called Families Free in Johnson City. This part of Northeast Tennessee is the epicenter of the state's — and even the country's — problem with neonatal abstinence syndrome....
Tipton recognizes that Tennessee’s law has a bad rap among women’s health advocates and civil liberty groups. But she says she’s not hearing great alternatives from the naysayers. “I would really invite them to go in our area, into the trailer parks where they may be living with several family members who also use drugs and sometimes abuse them, and their children as well. To go into the jails and talk to the women whose lives have been destroyed by drugs and whose children are being raised by somebody else," Tipton says. "Help come up with some very real-life and real-world solutions that are going to change the lives of these women.”
It isn't clear the fetal assault law is doing what it was supposed to do. In the Tri-Cities, more women have been prosecuted with this misdemeanor than anywhere else in the state. Sullivan County District Attorney Barry Staubus, who pushed for the law in the first place, has charged more than 20 women this year. And yet the mountainous region is still home to the largest number of babies being born needing to detox.
State Rep. Terri Lynn Weaver, R-Livingston, sponsored the statute. She says it needs more time and should be renewed. “I’m just going to stand my ground on the fact that I believe wholeheartedly this bill does help and does help these women that are in situations that never would have gotten the help they needed,” she says.
Some women say they were too scared to get prenatal care for fear of going to jail. Even getting that medical help is tricky. Some OBGYNs prefer drug treatment to come first. And only a handful of treatment centers in the state even accept pregnant women and their added complexities.
"I’m not really sure what I feel about the law right now. I kinda of have mixed emotions about it,” says Sabrina Sawyer of Kingsport. Her nine-month-old son was born with drug-dependency and had to spend several days in the NICU. He's happy and healthy now, which brings to light another important point from critics: It's unclear whether there are any long-term health effects from NAS.
Sawyer, who has two other young children, says she didn't know about Tennessee's fetal assault law until a caseworker walked into her hospital room. “I was terrified. I had never been in any kind of trouble," she says. "It sent me through an emotional mess for a while.” Sawyer was charged with assault but chose to get treatment and avoid prosecution. While torn about the effectiveness of the law, she also admits she'd likely still be using if going to jail hadn't been a possibility.
Tuesday, November 17, 2015
Terrific original reporting by The Crime Report on challenging extreme policing bordering on entrapment
Regular readers know I am a big fan of all the criminal justice reporting work done at The Crime Report (TCR), and a new two-part series authored by Adam Wisnieski at TCR showcases why. In these two extended pieces, TCR highlights the extraordinary examples of extreme stings and the limited willingness of courts to police the work of police and prosecutors in this arena:
Here is an excerpt from the first of these two important pieces:
A TCR investigation found 126 motions to dismiss a case on the grounds of “outrageous government conduct” filed during an 18-month period between 2014 and August 2015. In those 126 cases, only seven were initially successful. Three of those were overturned on appeal, and an appeal on the fourth is still pending — though it is expected to be denied.
In the rare occurrences where a claim of “outrageous government conduct” is successful, something profound happens: police behavior changes. In one instance this year, the motion’s success directly led to a law enforcement agency changing policy on undercover sting operations involving prostitution. (More on this below.)
Nevertheless, the motion’s lack of success raises troubling questions for the future of American law enforcement. Legal scholars and critical judges say the near-overwhelming failure of courts to rule aggressive police behavior is “outrageous” when such motions arise has created a climate in which such behavior is likely to increase — while eroding the power of the judicial branch to check the government when it overreaches and, by implication, threatening Americans’ constitutionally enshrined right to due process.
More notable criminal justice reform bills put foward by House Judiciary Committee
As detailed in this official press release, there is more notable federal criminal justice reform news via the House Judiciary Committee this week. The press release carries this extended heading "House Judiciary Committee Unveils Bills to Address Federal Over-Criminalization: These bills are part of the Committee’s bipartisan criminal justice reform initiative." And here are some of the essential via the press release (with links from the source):
As part of the House Judiciary Committee’s criminal justice reform initiative, members of the House Judiciary Committee unveiled four bills to rein in the explosion of federal criminal law, commonly referred to as over-criminalization. These bills, along with the Sentencing Reform Act (H.R. 3713), will be marked up by the House Judiciary Committee on Wednesday, November 18, 2015.
The United States Code currently contains nearly 5,000 federal crimes. Recent studies estimate that approximately 60 new federal crimes are enacted each year, and over the past three decades, Congress has averaged 500 new crimes per decade. In addition to the statutory criminal offenses, there are thousands of federal regulations that, if violated, can also result in criminal liability. Many of these laws and regulations impose criminal penalties on people who have no idea they are violating a law.
The bills unveiled today address the underlying issues that have contributed to over-criminalization:
The Criminal Code Improvement Act of 2015, authored by Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner (R-Wis.), creates a default mens rea standard that applies when federal law does not provide a state of mind requirement so that only those who actually intend to commit the crime can be criminally liable. It also creates uniform definitions for several terms that are used frequently throughout title 18 of the Criminal Code....
The Regulatory Reporting Act of 2015, sponsored by Congresswoman Mimi Walters (R-Calif.), which requires every federal agency to submit a report to Congress listing each rule of that agency that, if violated, may be punishable by criminal penalties, along with information about the rule....
The Clean Up the Code Act of 2015, authored by Congressman Steve Chabot (R-Ohio), eliminates several statutes in the U.S. Code that subject violators to criminal penalties, such as the unauthorized use of the 4-H emblem or the interstate transportation of dentures....
The Fix the Footnotes Act of 2015, sponsored by Congressman Ken Buck (R-Colo.), fixes the footnotes in the current version of the Criminal Code to address errors made by Congress in drafting the laws.
Monday, November 16, 2015
"Risk, Race, & Recidivism: Predictive Bias and Disparate Impact"
The title of this post is the title of this notable new and timely empirical paper by Jennifer Skeem and Christopher Lowenkamp now available via SSRN. Here is the abstract:
One way to unwind mass incarceration without compromising public safety is to use risk assessment instruments in sentencing and corrections. These instruments figure prominently in current reforms, but controversy has begun to swirl around their use. The principal concern is that benefits in crime control will be offset by costs in social justice — a disparate and adverse effect on racial minorities and the poor. Based on a sample of 34,794 federal offenders, we empirically examine the relationships among race (Black vs. White), actuarial risk assessment (the Post Conviction Risk Assessment [PCRA]), and re-arrest (for any/violent crime).
First, application of well-established principles of psychological science revealed no real evidence of test bias for the PCRA — the instrument strongly predicts re-arrest for both Black and White offenders and a given score has essentially the same meaning — i.e., same probability of recidivism — across groups. Second, Black offenders obtain modestly higher average scores on the PCRA than White offenders (d = .43; appx. 27% non-overlap in groups’ scores). So some applications of the PCRA could create disparate impact — which is defined by moral rather than empirical criteria. Third, most (69%) of the racial difference in PCRA scores is attributable to criminal history — which strongly predicts recidivism for both groups and is embedded in sentencing guidelines. Finally, criminal history is not a proxy for race — instead, it fully mediates the otherwise weak relationship between race and re-arrest. Data may be more helpful than rhetoric, if the goal is to improve practice at this opportune moment in history.
November 16, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)