Wednesday, March 05, 2014

Intriguing SCOTUS mens rea ruling in Rosemond applying 924(c) gun charge

The Supreme Court handed down one criminal justice ruling this morning in Rosemond v. US, No. 12–895 (S. Ct. March 5, 2014) (available here).  Here is the intriguing composition of the Court in this 7-2 ruling:

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and in which SCALIA, J., joined in all but footnotes 7 and 8.  ALITO, J., filed an opinion concurring in part and dissenting in part, in which THOMAS, J., joined.

Here is how Justice Kagan's opinion for the Court gets started:

A federal criminal statute, § 924(c) of Title 18, prohibits “us[ing] or carr[ying]” a firearm “during and in relation to any crime of violence or drug trafficking crime.”  In this case, we consider what the Government must show when it accuses a defendant of aiding or abetting that offense.  We hold that the Government makes its case by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.  We also conclude that the jury instructions given below were erroneous because they failed to require that the defendant knew in advance that one of his cohorts would be armed.

Here is how Justice Alito's partial dissent gets going:

I largely agree with the analysis in the first 12 pages of the opinion of the Court, but I strongly disagree with the discussion that comes after that point.  Specifically, I reject the Court’s conclusion that a conviction for aiding and abetting a violation of 18 U.S.C. § 924(c) demands proof that the alleged aider and abettor had what the Court terms “a realistic opportunity” to refrain from en­gaging in the conduct at issue. Ante, at 13. This rule represents an important and, as far as I am aware, un­precedented alteration of the law of aiding and abetting and of the law of intentionality generally.

March 5, 2014 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Monday, March 03, 2014

Detailing the impact and import of Burrage on the federal drug war

The Supreme Court a few weeks ago in Burrage v. United States, No. 12-7515 (S. Ct. Jan. 27, 2014) (available here), rejected federal prosecutors' arguments to expand the reach and application of a mandatory minimum sentencing provision for a drug defendant.  Now, via this notable ABC News report headlined "U.S. Drug Cases Getting Rehabbed After Supreme Court Decision," we learn about some of the early impact of this ruling:

A week before actor Philip Seymour Hoffman overdosed on a mix of heroin, cocaine and other drugs, the Supreme Court restrained what one top prosecutor called "the strongest tool" federal authorities have to go after dealers in such cases, and now some U.S. drug prosecutions are getting sent to rehab. "We may not be able to meet the standard of proof in those cases," the U.S. Attorney in Vermont, Tris Coffin, said of overdose cases involving a cocktail of drugs. "It will have some impact."

In fact, a federal judge in Kentucky has already vacated the most severe charge against 53-year-old Harold Salyers, a father who was certain to spend decades in prison after being convicted last year of selling heroin to a man who then died. In Alaska and Ohio, defense attorneys are separately hoping their clients can similarly benefit from the high court's recent decision.

On average, drug traffickers in federal cases are sentenced to less than seven years behind bars.  But "when death or serious bodily injury results," the dealer can face a mandatory minimum of 20 years and as long as life in prison, according to federal law. Federal authorities have long sought the stiffer charge when a dealer's drugs contributed in some way to an overdose.

In January, though, the Supreme Court ruled the dealer's drugs need to do more than just contribute, they need to be "the straw that broke the camel's back," as one Justice Department official put it. That's "problematic," especially in overdose cases where an accused dealer's drugs are not the only drugs involved, according to the official. Nearly half of all overdoses involve multiple drugs, federal statistics indicate. "Now we need to [prove] not that just drugs killed them, but which drugs killed them," said the Justice Department official, speaking on the condition of anonymity....

The Supreme Court decision in Burrage v. United States initially received scant news coverage and only moderate notice since actor Hoffman's overdose -- a case being handled by local authorities in New York that highlights some of the obstacles to bringing federal charges.  Still, top federal prosecutors said they don't believe the high court's decision is "a significant setback" or "a real game-changer for us."

Medical experts will just have to dig deeper to determine a drug's exact role in death, and federal prosecutors rarely seek the stiffer charge anyway, even when an overdose occurs, according to both Coffin and Harvey, the U.S. attorneys. "We're going to be fine" and will bring "most of the cases we want to bring," Harvey said.

But the Justice Department official, speaking on condition of anonymity, said finding medical experts who can determine a drug's exact role is not so easy and "is a big burden on the government." Plus, the official said, the Supreme Court decision could be "a blow" to investigative efforts. "The 20-year mandatory minimum has been tremendously efficient in scaring the dickens out of people so they cooperate up the chain," the official said. "It's been a really good negotiating tool."

There are so many interesting aspects to this Burrage follow-up story, and it highlights for me that it might be very interesting and very valuable for some researchers to assemble and analyze data on how the mandatory minimum sentencing provision at issue in Burrage has been applied in the years before this SCOTUS ruling and how it gets applied in the coming years.

But I especially like and find helpful the candid and astute quotes from the unnamed Justice Department official reprinted at the end of this excerpt. The quote so efficiently and effectively captures the real work and importance of all modern mandatory minimum sentencing terms in the federal system: they mostly exist to reduce "a big burden on the government" by providing a ready and "tremendously efficient" to scare "the dickens out of people so they cooperate up the chain" and thus serve as a "really good negotiating tool."

As I have said before and will say again, for those who favor a big federal criminal justice system having lots of power with limited burdens on a "tremendously efficient" means scare "the dickens out of people so they cooperate" with government officials, the current operating structure and modern application of federal mandatory minimums are still working pretty well despite the setback that Burrage may represent for one of these potent prosecutorial weapons in the drug war. But for those who are suspicious of a big federal criminal justice system having lots of power concentrated in executive branch official not subject to the rule of law or really any regulation or review of how its power gets used (persons that include Senator Rand Paul and yours truly), reform of all federal mandatory minimums seems to be essential to restore fully the vision of limited federal government power and individual rights that inform and infuse the Constitution and the Bill of Rights.

March 3, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Friday, February 28, 2014

More fascinating "Quick Facts" from the US Sentencing Commission

I am so pleased to see and to be able to report that the US Sentencing Commission is continuing to produce insightful little documents as part of its terrific new series of reader-friendly "Quick Facts" publications.  (Regular readers may recall from this prior post that the USSC describes these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")

As I have said repeatedly before, I think this is a very valuable innovation coming from the USSC, and I have already learned a lot and benefited greatly from all the publications in the series.  This latest one on certain firearm offenses, Section 924(c) Offenders , includes these notable data:

From among 84,173 cases reported to the USSC in FY2012, "2,189 involved convictions under 18 U.S.C. § 924(c)" which criminalized possession/use of a firearm in furtherance of another offense and:

The average length of sentence for offenders convicted under 18 U.S.C. § 924(c) was 165 months.

  • The average length of sentence for offenders convicted of one count under section 924(c) was 84 months.
  • The average length of sentence for offenders convicted of one count under section 924(c) and another offense not carrying a mandatory minimum penalty was 132 months. When the other offense carried a mandatory minimum penalty the average sentence was 181 months.
  • The average length of sentence for section 924(c) offenders who were determined to be career offenders was 252 months.
  • The average length of sentence for offenders convicted of multiple counts of section 924(c) was 358 months.

February 28, 2014 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (0) | TrackBack

Thursday, February 27, 2014

Federal judge rejects as too lenient plea deal for Illinois state judge guilty of drug and gun charges

This local sentencing story from Illinois is notable both for its participants and as a rare example of a federal judge rejecting a plea deal in a drug case for calling for a sentence deemed too low.  The article is headlined "Judge rejects plea deal for former St. Clair County judge in drug case," and here are just some of the interesting particulars:

A federal judge refused Wednesday to accept terms of a plea agreement that would have sent former St. Clair County judge Michael N. Cook to prison for 18 months on drug-related charges.  U.S. District Judge Joe Billy McDade called the sentence “not sufficient” and said the facts of the case supported a longer sentence.  But McDade also said that he would not “throw the book at him” just because Cook was a judge.  He did not suggest what an appropriate sentence would be.

McDade gave Cook and prosecutors until March 19 to try to strike a new deal.  On March 28, Cook is again scheduled to be in court — either to be sentenced on a new agreement or have a date set for trial....

Cook’s plea deal Nov. 8 to a misdemeanor charge of heroin possession and a felony charge of being a drug user in possession of a firearm was made under an unusual provision.  It carried an agreed-upon penalty that took the sentencing discretion away from McDade.  His only option was to accept or reject the deal.  In January, McDade filed an order warning both sides that he disagreed with a pre-sentence report that said there were no reasons to go above sentencing guidelines, which called for six months or less behind bars.

McDade wrote that Cook’s status as a judge, his longtime drug use and the disruption of governmental functions were reasons to go higher.  He also ordered a supplemental report on how Cook’s actions may have affected cases in front of him, and whether it had affected public confidence in the judicial system.

Cook resigned after exposure of a drug scandal that cost the life of Associate Judge Joseph Christ, who died of a cocaine overdose March 10 in the Cook family hunting lodge in Pike County, Ill., about 65 miles northwest of St. Louis.  The scandal also ensnared former probation worker James K. Fogarty and others.  Cook, of Belleville, admitted at his guilty plea that he was a heroin addict.  After his arrest in May outside of the house of his heroin dealer, Sean McGilvery, he entered an intensive in-patient treatment facility.

But authorities were investigating rumors of Cook’s drug use long before Christ’s death. Search warrant affidavits released since the guilty pleas accuse Cook of abusing a variety of illegal and prescription drugs.  One confidential informer claimed in 2012 that Cook had used drugs for a decade.  The affidavits also show frequent and familiar contact between McGilvery and both Cook and Christ....

Cook and McGilvery were arrested May 22.  Fogarty was charged May 24.  McGilvery is serving a 10-year prison term on charges of conspiracy to distribute, and possession with intent to distribute, more than a kilogram of heroin.  Fogarty is scheduled to be sentenced Thursday and faces a five-year term on charges of intent to distribute cocaine and being a drug user in possession of a firearm. He admitted selling drugs to both Cook and Christ.  His sentence could be affected if he can be explicitly linked to Christ’s death.

Cook is the son of Bruce Cook, of Belleville, a well-known personal injury lawyer and major behind-the-scenes player in local and national Democratic Party politics.  Cook was an assistant public defender and former member of his father’s practice.  He was selected as an associate judge in 2007, appointed to a vacancy to be a circuit judge in 2010 and elected to a six-year term, as a Democrat, later that year.

Two men convicted in front of Cook of murder have won retrials after raising concerns about the judge’s drug connections, and some other criminal defendants who appeared before him have been allowed to withdraw guilty pleas.

February 27, 2014 in Booker in district courts, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (13) | TrackBack

Monday, February 24, 2014

You be the federal sentencing judge: "tough call" in sentencing former police chief

The title of this post is drawn from the headline of this notable local story about tomorrow's scheduled federal sentencing for Pittsburgh's former police chief. The piece is headlined "Former Pittsburgh police chief's sentencing a tough call for judge Ex-chief Nate Harper's sentencing 'difficult'."  Because I am never quite sure whether I think a law-enforcement background justifies a harsher or lighter sentence, I am very interested in hearing reader instincts about what might be a fitting federal punishment for this former cop. Here are some of the details the federal judge must consider in this case:

When former New York City police commissioner Bernard Kerik -- who once ran the Big Apple lockup Rikers Island -- walked into a federal penitentiary as a prisoner in 2010, it was, he said, like "dying with your eyes open."...

At the Federal Correctional Institution Cumberland, in Maryland, where he served his sentence, he lived among the kinds of people he spent his life locking up. That's what former Pittsburgh police chief Nate Harper could face following his sentencing, set for Tuesday.

Mr. Harper's fate is in the hands of U.S. District Judge Cathy Bissoon, who rose to that post in late 2011 after three years as a magistrate judge. She faces a decision in which she must weigh Mr. Harper's history, his precise role in the conspiracy to commit theft and the importance of deterring others from similar dips into the public cookie jar.

Though federal guidelines suggest a sentence of 1.5 to two years, she can go as low as probation or as high as five years. "It comes down to a very difficult call for a judge," said Bruce Antkowiak, a former federal prosecutor and now a law professor at Saint Vincent College in Latrobe. "The strongest cards [Mr. Harper's attorneys] have to play are his history with the department, the decades of work he has put in, the numbers of other people from law enforcement who evidently respect him."

Those same factors, though, could count against him. "Either you think this is a fundamentally decent guy who did something wrong, or you think this is a public official who should be held to another standard," said Wesley Oliver, the Criminal Justice Program director at the Duquesne University School of Law.

Mr. Harper could argue that his lawman background puts him at risk in prison. The U.S. Supreme Court found in the case of police sergeant Stacey Koon, sentenced to prison in the beating of Los Angeles motorist Rodney King, that judges can give lighter sentences to defendants who are "unusually susceptible to prison abuse."

In the recent case of former corrections officer Arii Metz, though, prosecutors countered that argument by showing that the federal prisons already house many former police in relative security. As of last month, there were 1,269 former law enforcement officials in federal custody, according to the Bureau of Prisons. "There are guys who are going to hate him because he was a cop," Mr. Kerik said. "There are going to be guys who are going to respect him because he was a cop."

Mr. Harper pleaded guilty in October, confirming that he failed to file tax returns for four years and diverted $70,629 in public funds into an unauthorized credit union account and spending $31,987 on himself. The prosecution has maintained that Mr. Harper told two civilian subordinates to open and handle the account, making him a supervisor in the conspiracy, and subject to a harsher sentence.

The defense has countered that Mr. Harper had no co-conspirators, but also that the unauthorized account wasn't his idea. They haven't yet named the alleged mastermind. "The government's response is going to be: Who cares?" Mr. Antkowiak said. "When you admit that you told two city employees to open these accounts and draw the Visa cards on them, you're a supervisor" of the crime....

Two defendants -- both of whom were given credit for cooperation -- publicly blamed Mr. Harper for a separate bid-rigging scheme in hearings before Judge Bissoon. The former chief has never been charged in relation to the incident, a contract won by Alpha Outfitters -- a company controlled by the chief's long-time friend -- to install and maintain computers and radios in police cars.

The judge shouldn't give much weight to their accusations, Mr. Oliver said, though he noted that the charge "tends to tear down the narrative that the defendant is trying to tell" about a good man with a bad debit card.

With the eyes of the public, and especially of law enforcement, on the case, the judge may carefully weigh the deterrent effect of the sentence. "Look, one of the things a judge always considers is what kind of message [she's] sending with this sentence," said John Burkoff, a law professor at the University of Pittsburgh. " 'What's the message I'll be sending to police officers who may be tempted to do something bad if I'm lenient?' "

Mr. Kerik, now an advocate for sentencing reform, suggested that the message has already been sent. It could be amplified, he said, if the judge gives Mr. Harper probation but orders him to speak to police recruit classes about his crime and punishment. "They're going to take his pension," Mr. Kerik said. "You've taken his reputation. He's now a convicted felon. He's going to have legal fees he'll have to pay for. That guy has been destroyed."

UPDATE: This local report details the sentencing outcome in its headline: "Former Pittsburgh chief Harper gets 18-month prison sentence."

February 24, 2014 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Thursday, February 20, 2014

A shameful suggestion for how to NYC roads and walkways safer

I was asked yesterday to contribute my thoughts to the Room for Debate section of the New York Times to address the question of "what steps can [New York City] officials, pedestrians and drivers take to reduce the number of accidents?".  My suggestion in available at this link, and here is a segment:

Perhaps Mayor de Blasio might try to impose salient shaming sanctions rather than other traditional punishments.

What if, after a reckless driver has caused a crash in Midtown, the offender were required to create a video reciting recent accident data, which would be posted on YouTube and regularly shown on screens in Times Square? What if, after a cyclist is caught dangerously weaving through traffic in Brooklyn, that scofflaw had to make a live apology during halftime of a Nets game? What if all drivers convicted of speeding were required to place bumper stickers on their cars highlighting that the owner does not follow traffic rules? ...

Because we have rarely tried to make traffic offenders “pay” for their crimes through prominent use of shaming, I cannot confidently predict it would be more effective. But given the challenges in trying to capture the attention and obedience of busy New York City drivers, it is worthwhile to consider creative alternative punishment schemes.

February 20, 2014 in Criminal Sentences Alternatives, Offense Characteristics, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, February 19, 2014

After she asked for life sentence, Sister Megan Rice gets 35 months' imprisonment and her co-defendants get 62 for sabotage

As reported in this local piece, an "84-year-old Catholic nun will spend nearly three years in federal prison for breaking into one of the U.S. government's most secure facilities and helping deface a uranium-processing building with human blood, a federal judge ruled Tuesday."  Here is more about the fascinating sentencing conclusion to a high-profile case of law-breaking civil disobedience:

Megan Rice, who turned 84 on Jan. 31, and fellow anti-nuclear activists Michael Walli, 64, and Greg Boertje-Obed, 58, were convicted in May of sabotaging the plant in Oak Ridge, Tenn.  All three are members of the Plowshares movement of Christian pacifists.

U.S. District Judge Amul Thapar in Knoxville, Tenn., sentenced Rice to 35 months in prison for her role in the July 28, 2012, break-in and protest.  The judge sentenced Walli and Boertje-Obed both to five years and two months in prison.  Previously, Thapar had ordered the trio to pay nearly $53,000 in restitution for damaging U.S. government property.  In addition, Walli and Boertje-Obed will have three years of supervised release after their prison terms. The two men received longer sentences based on their past criminal history.

During a four-hour hearing Tuesday, Rice pleaded with the judge not to grant her leniency. "Please have no leniency on me," she said. "To remain in prison for the rest of my life would be the greatest honor you could give me."

Thapar didn't oblige but did say that breaking the law isn't the right way to pursue political goals.  He said he hoped that a significant prison sentence would deter others from following the same path and bring them "back to the political system I fear that they have given up on."

The protesters picked late July 2012 to break in to the Y-12 National Security Complex because it was close to the dates when the United States dropped atomic bombs on Hiroshima and Nagasaki, Japan, during World War II.  The three cut through fences and made it through multiple layers of security.  They spent more than two hours in a restricted area and had time to splash blood on the outside of the building where the government processes weapons-grade uranium before security personnel apprehended them....

The three have garnered worldwide attention.  Thousands of letters of support have poured into the court from around the world.  Those include letters from groups such as the Union for Concerned Scientists. While acknowledging the three were convicted of a federal crime, they exposed serious security weaknesses at Y-12, the group said.

Edwin Lyman, a nuclear security expert at the Union of Concerned Scientists, said in January that the protesters did the nation a public service. "We think, even though they were convicted of a federal crime, there are mitigating circumstances and they made the country safer," Lyman said.

The government has taken the case seriously.  The three have been in custody since their conviction, and prosecutors recommended sentences of six to nine years.  

A key issue Tuesday was how the judge should follow federal sentencing guidelines. Lawyers for the activists that argued the time they already have served is sufficient punishment....  During the hearing, the judge struggled with how to handle the guidelines. "At some point, the law has to command respect, and there is a lawful way to change it," Thapar said.  But he also suggested that Rice's past good works should play a role and wasn't sure how to fit those into the guidelines.  He called a recommended sentence of 6½ years for Rice "overkill."

Assistant U.S. Attorney Jeffrey Theodore ... contended the trio's actions were "serious offenses that have caused real harm to the Y-12 National Security Complex."  [And] "they have shown no remorse for their criminal conduct," he said.

Recent related posts:

February 19, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, February 18, 2014

Could marijuana reforms end up making our roadways much safer?

The question in the title of this post might be a bit of foolish wishful thinking on my part, but these passages from this notable new New York Times article provides the foundation for my (undue?) optimism:

[S]cience’s answers to crucial questions about driving while stoned — how dangerous it is, how to test for impairment, and how the risks compare to driving drunk — have been slow to reach the general public.  “Our goal is to put out the science and have it used for evidence-based drug policy,” said Marilyn A. Huestis, a senior investigator at the National Institute on Drug Abuse.  “But I think it’s a mishmash.”

A 2007 study found that 12 percent of the drivers randomly stopped on American highways on Friday and Saturday nights had been drinking.  (In return for taking part in the study, intoxicated drivers were told they would not be arrested, just taken home.)  Six percent of the drivers tested positive for marijuana — a number that is likely to go up with increased availability.  Some experts and officials are concerned that the campaign against drunken driving has not gotten through to marijuana smokers.

“We’ve done phone surveys, and we’re hearing that a lot of people think D.U.I. laws don’t apply to marijuana,” said Glenn Davis, highway safety manager at the Department of Transportation in Colorado, where recreational marijuana use became legal on Jan. 1. “And there’s always somebody who says, ‘I drive better while high.’ ”

Evidence suggests that is not the case. But it also suggests that we may not have as much to fear from stoned driving as from drunken driving.  Some researchers say that limited resources are better applied to continuing to reduce drunken driving.  Stoned driving, they say, is simply less dangerous.

Still, it is clear that marijuana use causes deficits that affect driving ability, Dr. Huestis said.  She noted that several researchers, working independently of one another, have come up with the same estimate: a twofold increase in the risk of an accident if there is any measurable amount of THC in the bloodstream....

The estimate is low, however, compared with the dangers of drunken driving. A recent study of federal crash data found that 20-year-old drivers with a blood-alcohol content of 0.08 percent — the legal limit for driving — had an almost 20-fold increase in the risk of a fatal accident compared with sober drivers. For older adults, up to age 34, the increase was ninefold.

The study’s lead author, Eduardo Romano, a senior research scientist at the Pacific Institute for Research and Evaluation, said that once he adjusted for demographics and the presence of alcohol, marijuana did not statistically increase the risk of a crash. “Despite our results, I still think that marijuana contributes to crash risk,” he said, “only that its contribution is not as important as it was expected.”

The difference in risk between marijuana and alcohol can probably be explained by two things, Dr. Huestis and Dr. Romano both say. First, stoned drivers drive differently from drunken ones, and they have different deficits. Drunken drivers tend to drive faster than normal and to overestimate their skills, studies have shown; the opposite is true for stoned drivers. “The joke with that is Cheech and Chong being arrested for doing 20 on the freeway,” said Mark A. R. Kleiman, a professor of public policy at the U.C.L.A. School of Public Affairs....

Another factor is location. A lot of drinking is done in bars and clubs, away from home, with patrons driving to get there and then leaving by car. By contrast, marijuana smokers tend to get high at home....

All of these facts lead experts like Dr. Romano and Dr. Kleiman to believe that public resources are better spent combating drunken driving. Stoned driving, they say, is best dealt with by discouraging people from mixing marijuana and alcohol — a combination that is even riskier than alcohol alone — and by policies that minimize marijuana’s risk on the road.

For instance, states that legalize recreational marijuana, Dr. Kleiman said, should ban establishments like pot bars that encourage people to smoke away from home. And Dr. Romano said that lowering the legal blood-alcohol concentration, or B.A.C., to 0.05 or even 0.02 percent would reduce risk far more effectively than any effort to curb stoned driving. “I’m not saying marijuana is safe,” he said. “But to me it’s clear that lowering the B.A.C. should be our top priority. That policy would save more lives.”

My supposition based on this article that marijuana reforms could end up making our roadways much safer is a result of two potential impacts of ending pot prohibition: (1) if marijuana reform leads a number of people who would generally go get drunk at a bar to instead now just get stoned at home, the net effect will be safer roads, and (2) if enduring concerns about the impact of marijuana reform leads more policy-makers to focus on highway harms, we might see a greater effort to get much tougher on the enduring public safety disaster that is drinking and driving.

I am not expecting that we will get strong evidence that marijuana reforms end up making our roadways much safer anytime soon, but I am hopeful that researchers like Dr. Romano and Dr. Kleiman continue to stress that our modern alcohol policies and practices now impact highway safety much more than any marijuana reforms are likely to do. And, as these related recent articles also highlight, the media so far is doing a pretty good job defusing the risk of misguided reefer madness when it comes to driving under the influence:

Cross-posted at Marijuana Law, Policy and Reform

February 18, 2014 in Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack

Monday, February 17, 2014

Sentencing round two for elderly nun and two other peace activists for breaking into a federal defense facility

Sister Megan RiceThis new report from The Guardian, headlined "84-year-old nun who broke into Tennessee weapons plant awaits fate," spotlights a high-profile federal sentencing case (previously discussed in this post) that is scheduled for final sentencing tomorrow morning.  Here are excerpts:

An 84-year-old nun who broke into a Tennessee weapons plant and daubed it with biblical references, will learn on Tuesday whether she will spend what could be the rest of her life in prison.

Two weeks ago, at a sentencing hearing, a judge ordered Sister Megan Rice and her co-defendants, two other Catholic anti-nuclear activists, Greg Boertje-Obed, 58, and Michael Walli, 64, to pay $53,000 for what the government estimated was damage done to the plant by their actions.

All three defendants were convicted of sabotage after the break-in at the Y-12 nuclear weapons plant at Oak Ridge, Tennessee, on 28 July 2012. The charge, under a statute of the US criminal code used against international and domestic terrorism, carries a maximum sentence of up to 30 years. The government have asked for the trio to be given prison sentences of between five and nine years. They would have learned their fate in the January hearing, but it was cut short due to bad weather and rescheduled for Tuesday.

In an interview with the Guardian from Knox county jail as she awaited her fate, Rice said she hoped US district judge Amul Thapar would seize the opportunity to “take his place in history” and sentence them in a way that would reflect their symbolic, non-violent actions – actions she said that were intended to highlight the US stockpile of nuclear weapons they believe is immoral and illegal.

“I hope he will answer his conscience,” said Rice, in an interview 24 hours before the last sentencing hearing. “He knows what to do.” She and her co-defendants have been in prison, mostly in Ocilla, Georgia, for eight months, a period of time her lawyers say is sufficient punishment for the break-in.

Thapar has received hundreds of letters and a 14,000 signature petition pleading for leniency in this case, including from Rice’s religious order, the Society for the Holy Jesus, which asked for a reduced or suspended sentence given “her age, her health and her ministry”. Lawyers for Rice, Boertje-Obed, a Vietnam veteran from Washington DC and Walli, a painter from Duluth, Minnesota, have asked for leniency and say the trio admitted have what they did.

The US government contends that none of the defendants arguments merit leniency. At the hearing on 28 January, it said they did not accept they had committed crimes, took no responsibility for them, showed no contrition and, then, during the trial, proceeded to argue against the laws they had broken. It has described the three, who have previous convictions related to their protest activities, as “recidivists and habitual offenders”.

Jeffery Theodore, assistant US attorney general for the eastern district of Tennessee, told the court that the three “pretty much celebrated their acts”.  At the January hearing, he described their argument that they were trying to uphold international law as “specious and disingenuous” and said there had been no single case where international law has been seen as justification for breaking US laws.  The judge agreed with Theodore that the defendants were not remorseful and that they didn’t accept any responsibilities for their crimes, and said they would not be given downward departures for admitting responsibility.

At the January hearing, four character witnesses for the defendants gave powerful testimony about their strong Christian and pacifist principles, their commitment to helping others and their dedication to their cause. They, and the scores of supporters crowded into the courtroom, also provided an insight into the close-knit nature of the anti-nuclear faith community.

Regular readers are surely not surprised to hear that I find this federal sentencing case very interesting for a number of reasons.  But they may be surprised to learn that US District Judge Amul Thapar used the sentencing break/delay as an opportunity to request that I submit a "friend-of-the-court brief" to assist the Court as it tackled some challenging issues concerning the departure requests made by one of the defendants. I was honored and grateful to be able to provide such assistance directly to the court, and below I have uploaded Judge Thapar's order (which requests my submission at the end) and my submission in response:

Recent related post:

February 17, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, February 13, 2014

Feds to appeal probation sentence given to tax-dodging Beanie Babies billionaire

As reported in this new AP article, the "U.S. attorney's office in Chicago said Thursday that it's appealing a sentence that included no prison time for the billionaire creator of Beanie Babies for hiding at least $25 million from U.S. tax authorities in Swiss bank accounts."  Here is more:

At H. Ty Warner's sentencing last month, Judge Charles Kocoras heaped praise on the toymaker for his charitable giving, declaring society was better served by letting him go free and giving him two years' probation instead of sending him to prison. Warner had faced up to five years in prison.

Warner, 69, of Oak Brook, Ill., was one of the highest profile figures snared in a long-running investigation of Americans concealing funds in Swiss bank accounts. Others convicted of squirreling away less money in Switzerland than Warner have done prison time. Warner, who grew up poor, created the animal-shaped Beanie Babies in the mid-'90s, triggering a craze that made Warner spectacularly rich. Forbes recently estimated his net worth at $2.6 billion.

A one-page notice of appeal signed by U.S. Attorney Zachary Fardon was filed with the U.S. 7th Circuit Court of Appeals, and a full brief will be submitted later. Justice officials in Washington still must OK the appeal, but that's usually considered a formality.

At a Jan. 14 sentencing hearing, Kocoras spent most of his 20-minute explanation of the sentence expressing admiration for Warner. He also said the businessman had already paid a price in "public humiliation." In addition to probation, Kocoras ordered Warner to do 500 hours of community service at Chicago high schools. Earlier, Warner agreed to pay $27 million in back taxes and interest, and a civil penalty of more than $53 million....

During sentencing, assistant government attorney Michelle Petersen urged Kocoras to put Warner behind bars for at least a year.  "(Without prison time), tax evasion becomes little more than a bad investment," she told him.  "The perception cannot be that a wealthy felon can just write a check and not face further punishment."

This should be a VERY interesting sentencing appeal to watch in the months ahead, and I am already super stoked to read the coming Seventh Circuit briefs from the parties concerning what will surely be differing views on what federal sentencing law demands in a case of this nature.

Prior related post:

February 13, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"Is possession of child pornography a crime worthy of years in prison?"

The question in the title of this post is the sub-headline of this new Jacob Sullum piece at Reason.com. The piece starts by talking through the recent Paroline argument concerning restitution punishments for child porn downloaders and then moves to these comments:

As a result of congressional edicts, the average sentence in federal child porn cases that do not involve production rose from 54 months in 2004 to 95 months in 2010, according to a 2012 report from the U.S. Sentencing Commission.

Under federal law, receiving child pornography, which could mean viewing or downloading a single image, triggers a mandatory minimum sentence of five years.  Federal sentencing guidelines recommend stiff enhancements based on factors that are extremely common, such as using a computer, swapping photos, or possessing more than 600 images (with each video counted as 75 images).  The maximum penalty is 20 years....

When the Supreme Court upheld bans on possession of child pornography in 1989, its main rationale was that demand for this material encourages its production, which necessarily involves the abuse of children.  But this argument has little relevance now that people who look at child pornography typically get it online for free.  Furthermore, people who possess "sexually obscene images of children" — production of which need not entail abuse of any actual children — face the same heavy penalties.

Another rationale for criminalizing possession of child pornography, mentioned by the sentencing commission in its report, is that these images "validate and normalize the sexual exploitation of children."  Yet the same could be said of explicit arguments in favor of sex with minors, which nevertheless enjoy First Amendment protection.

Even if you agree that possessing child pornography should be a crime, the current penalty structure is clearly out of whack.  Something is seriously wrong with a justice system in which people who look at images of child rape can be punished more severely than people who rape children.

February 13, 2014 in Federal Sentencing Guidelines, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (22) | TrackBack

Wednesday, February 12, 2014

Will (and should) former mayor Ray Nagin get a sentence making it likely he dies in federal prison after his corruption convictions?

The question in the title of this post is the first sentencing question that came to mind upon hearing this criminal justice news from a Louisiana federal court this afternoon:

Ray Nagin, the former two-term mayor of New Orleans indicted after he left office, was convicted Wednesday of 20 federal corruption charges for illegal dealings with city vendors, dating back to 2004.  A jury delivered its verdict just before 1 p.m., after six hours of deliberations that followed a nine-day trial.

Nagin, 57, joins a list of Louisiana elected officials convicted of misdeeds while in office, but he is New Orleans' first mayor to be convicted of public corruption.  Under federal sentencing guidelines, he could face a 20-year prison term, possibly more, lawyers have said.

In a case that relied heavily on the testimony of businessmen-turned-convicts -- and a paper trail that showed money changing hands and lucrative city contracts doled out -- prosecutors described a public official "on the take."  Nagin was an opportunist who pursued businessmen under pressure to get government work, targeting them to line his own pockets, prosecutors said....

Nagin was somber and silent as he made his way through a crush of reporters outside of the courthouse -- a far cry from the confidence he showed when he first arrived more than two weeks ago at the start of his trial.  Addressing the press, Jenkins said, "Obviously, I'm surprised. Now we're moving on to the appeal process."

Assistant U.S. Attorney Matt Coman, the lead prosecutor on the case, gave a brief statement. "We are pleased with the verdict and obviously we are very thankful to the jury and the court," he said....

Nagin, a Democrat, was the public face of the city during Hurricane Katrina, making national headlines as he lambasted the federal government for its response to the storm and subsequent flood.

He lives in Frisco, Texas, where he has avoided the spotlight, staying quiet save for an occasional tweet, since his indictment a year ago. Sentencing is set for June 11 before U.S. District Judge Ginger Berrigan.

As the title of this post suggests, I would urge now-convicted Nagin to urge his lawyers to get very focused on the federal sentencing process before they start "moving on to the appeal process." As the article above notes, federal prosecutors are likely to argue that the guidelines applicable here recommend a sentence of decades for Nagin, and judges within the Fifth Circuit tend to be drawn toward imposing within guidelines sentences. Ergo, unless and until Nagin's lawyers start developing some strong sentencing arguments on his behalf, the former mayor of New Orleans may be looking at the real possibility that he gets a federal prison sentence later this year that amounts to a functional life sentence.

February 12, 2014 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (11) | TrackBack

Thursday, February 06, 2014

Another round of "affluenza" discourse as juve judge order rehab for teen DUI that killed four

As reported here via this CNN piece, headlined "Judge orders Texas teen Ethan Couch to rehab for driving drunk, killing 4," the Texas juvenile case which brought the term "affluenza" into the sentencing lexicon was formally completed yesterday.  Here are some of the latest details:

A judge on Wednesday ordered that Ethan Couch -- who drove drunk and caused a crash, killing four people and injuring two -- go to a lock-down residential treatment facility. State District Judge Jean Boyd had already decided the Texas teenager would serve no jail time. He was sentenced last year to 10 years' probation.

His story made national headlines after a witness claimed Couch was a victim of "affluenza" -- the product of wealthy, privileged parents who never set limits for the boy. That particular defense, however, played no part in the judge's decision, Couch's lawyer told reporters on Wednesday. Court proceedings were closed to the public.

"She (Boyd) said it (affluenza), and specifically mentioned that that was not a basis for her decision," said attorney Reagan Wynn. "She heard all the evidence and she made what she thought was the appropriate disposition." The judge ordered that Couch's parents pay for the treatment facility, which was not identified. It was also unclear how long Couch might stay there.

As part of his probation, the teen must refrain from using drugs or alcohol. He will also not be allowed to drive. If Couch violates the terms of his probation, he could face up to 10 years behind bars. "I think he can be rehabilitated given intensive therapy and I hope that he gets it," Wynn said about the teen. "The juvenile system is about rehabilitation and if it's going to be about rehabilitation, she (Boyd) absolutely made the right decision."

Eric Boyles, who lost his wife and daughter in the crash, disagrees. He told reporters he has no doubt that money played a role in the case. "Had he (Couch) not had money to have the defense there, to also have the experts testify, and also offer to pay for the treatment, I think the results would have been different," he said Wednesday after the proceedings....

Prosecutors were similarly disappointed with the judge's decision. They had asked for the maximum of 20 years behind bars. "This has been a very frustrating experience for me," said prosecutor Richard Alpert. "I'm used to a system where the victims have a voice and their needs are strongly considered. The way the system down here is currently handled, the way the law is, almost all the focus is on the offender."

Prior related post:

February 6, 2014 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (12) | TrackBack

Thursday, January 30, 2014

Unsurprisingly, AG Holder authorizes pursuit of death penalty against Boston bomber

I just received via e-mail this notice from DOJ, titled "Statement by Attorney General Eric Holder Regarding the Case of Dzhokhar Tsarnaev."  Here is the full text of the linked material:

Attorney General Eric Holder today released the following statement regarding the case of Dzhokhar Tsarnaev:

“After consideration of the relevant facts, the applicable regulations and the submissions made by the defendant’s counsel, I have determined that the United States will seek the death penalty in this matter. The nature of the conduct at issue and the resultant harm compel this decision.”

Some prior related posts:

January 30, 2014 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, January 29, 2014

Notable New York story about "gentleman heroin dealer" getting out from under LWOP sentence

A helpful reader alerted me to this fascinating little New York Times story of one federal defendant (of too many) sentenced to LWOP for a first-offende drug crime who later became one federal prisoner (of too few) who got a lower prison term at a resentencing after spending nearly a quarter-century in federal prison.  The story demands a full read, but here is a snippet:

Time for a question to Myles Coker about the origins of a life that he had kept secret from the people closest to him.  How had he gotten started in the heroin trade?  Mr. Coker did not blink.  “It was back in the ’80s,” he said, when he worked for an illegal gambling business.

His son Clifton pulled his chair closer.  “I’ve never heard this part of the story,” he said. Neither had others at lunch at the National Arts Club on Friday.  Among them were Mr. Coker’s lawyer, Harlan Protass, who got him out of prison at age 63, well ahead of the life term he was supposed to serve, and Roland Riopelle, the former federal prosecutor who had put Mr. Coker behind bars.

A star wide receiver in college who is still in excellent shape, Mr. Coker did not use drugs himself.  He ran an entirely legitimate limousine business that had among its clients “The Cosby Show.” The parents of children he coached in Little League held parties to thank him for his devotion.  His wife was a teacher, principal and textbook author; their two sons, Clifton and Kelvin, went through private elementary schools in Manhattan, Poly Prep high school in Brooklyn and top colleges, and have enjoyed professional success.

Unknown to all, Mr. Coker was a gentleman heroin dealer.  His work for an illegal gambling operation — he took bets on sporting events over phones in safe houses in the Bronx — brought him to the home of Anthony Damiani, an overseer of the operation, who lived in Morris Park. “Not at the beginning, but after a few years, all this cash was coming in,” Mr. Coker said. “Once they got into heroin, I was seeing the currency machine for counting cash. They had me carrying it in sacks.”

He was invited to set up distribution in Harlem, and after a few years, took up the offer. “Greed just took me,” Mr. Coker said.  He eventually ran about five or six spots, a business that he said brought him about $25,000 in cash profits per month.... Records kept by one particularly diligent member of the organization showed that Mr. Coker had been supplied with 691,430 glassine bags in 26 months.  In time, 50 people, including Mr. Coker, were arrested. He was sentenced, under federal laws that are no longer in effect, to life without parole.

“He was just gone; we didn’t know where he was,” said Clifton Coker, who was then 10. By phone, the boys’ father told them he was away training a boxer. The boys’ mother, Deborah Coker, consulted a psychologist, who said the children should be told by their father of his whereabouts, but he did not disclose the details of his offense or that the federal authorities had written, “It does not appear that he will be discharged from said custodial sentence prior to his demise.”

Not until Kelvin Coker was at Amherst College and able to work the Internet did the brothers realize that their father was not supposed to ever come back....  The sons went on a campaign to find a way out of prison for their father, and hired Mr. Protass.  With hearty letters from prison guards who praised him for his sterling record as a peacekeeper, and with legal filings by Mr. Protass that Judge Loretta A. Preska of United States District Court said were “some of the best papers I’ve seen,” Mr. Coker was resentenced in August to time served — just under 23 years....

When Mr. Riopelle heard that Mr. Coker had been released, he invited him to lunch. “I want to see people like him succeed,” Mr. Riopelle said.

January 29, 2014 in Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (14) | TrackBack

Tuesday, January 28, 2014

You be the judge: should guidelines be followed in federal sentencing of elderly nun and two other peace activists?

22_Sister-Megan-Rice-300x231The question in the title of this post is based on this notable Reuters story, headlined "Activists face sentencing for Tennessee nuclear facility break-in." Here are the interesting details, with emphasis added concerning the recommendations of the federal sentencing guidelines:

An elderly nun and two other peace activists are set to be sentenced on Tuesday on their federal convictions for damage they caused breaking into a Tennessee defense facility where enriched uranium for nuclear bombs is stored.

Sister Megan Rice, Michael Walli, and Greg Boertje-Obed admitted cutting fences and making their way across the Y-12 National Security Complex in Oak Ridge, Tennessee, in July 2012, embarrassing U.S. officials and prompting security changes.

The three were convicted by a federal jury last May of damaging a national defense premises under the sabotage act, which carries a prison sentence of up to 20 years, and of causing more than $1,000 of damage to U.S. government property.

Federal sentencing guidelines call for Rice, 83, to receive up to a little more than seven years in prison; Walli, 65, more than nine years; and Boertje-Obed, 58, more than eight years.  The defendants have been in custody since their conviction. Prosecutors have asked that the defendants receive sentences in line with federal guidelines. The defendants have asked for lesser sentences.

Bill Quigley, one of the attorneys of the defendants, said that all three are in good health, but that Rice, who turns 84 January 31, is "freezing cold in jail."

"They're all in great spirits and they're very much at peace about being sentenced," Quigley said.  "We're hoping for significantly less time.  People are even praying and hoping they'll be released."

Defense attorneys argued in court documents that the three were "completely nonviolent" when they were arrested.  "They used the occasion to present symbolically their passion for nuclear disarmament," defense lawyers wrote. The three activists have received more than 2,000 cards and letters of support from around the world.

Prosecutors contended the break-in at Y-12, the primary U.S. site for processing and storage of enriched uranium, disrupted operations, endangered U.S. national security, and caused physical damage that cost more than $8,500 to repair.  "The United States believes that the defendants should be held accountable for their deliberate choices and accept the appropriate consequences for their actions," prosecutors said in court documents.

The activists admitted cutting several fences, walking through the complex for hours, spray-painting slogans and hammering on the walls of the facility.  When a guard confronted them, they offered him food and began singing.

I wonder how most Americans would react (especially the folks at FoxNews) if Sister Megan Rice had been caught and convicted of breaking into an uranium-enrichment facility somewhere near Tehran, and Iranian prosecutors were advocating that, at age 84, Sister Rice should be held accountable by having to spend another six years in an Iranian prison.  Of course, that is not what Sister Megan Rice did: she broke into a uranium-enrichment facility in Tennessee, and it is American prosecutors who are advocating that she should be held accountable by having to spend another six years in an American prison.  That obviously makes all the difference in the (western) world.

This recent article from Mother Jones, headlined "Nun Faces up to 30 Years for Breaking Into Weapons Complex, Embarrassing the Feds," provides a lot more background on this case.  It concludes with this explanation of the religious background for the criminal actions by these activists:

The three imprisoned activists are members of the Plowshares Movement, a Christian peace initiative founded in 1980 when the brothers Daniel and Philip Berrigan and six others trespassed onto the General Electric nuclear missile facility in King of Prussia, Pennsylvania, and hammered on the nose cones of missiles.  The movement takes inspiration from Isaiah 2:4: "And they will hammer their swords into plowshares" — the part of the plow that tills the soil. Plowshares actions typically involve the pouring of blood and the symbolic gesture of hammering weapons — in this case, the walls of the Y-12 uranium warehouse.

"They feel that nuclear weapons are the single greatest threat to God's creation that exists in the world today," [fellow activist Ralph] Hutchison says.  "They think that there is a faith imperative.  Nuclear weapons represent the ultimate anti-God.  Anything that God is for — compassion, hope, promise of a future, health, security — they think are completely contradictory to the idea of nuclear weapons."

UPDATE: This Knoxville News Sentinel article reports on the now-interrupted sentencing today:

With snow coming down and federal officials closing the courthouse early, Judge Amul Thapar, prosecutors and attorneys agreed Tuesday to delay the sentencing of three protesters who broke into the Y-12 nuclear weapons plant. They determined there wasn’t enough time to complete the sentencing before the doors closed at 2:30 p.m. on the Howard H. Baker Jr. U.S. Courthouse.

The sentencing has been rescheduled to 9 a.m. on Feb. 18. Sister Megan Rice, an 83-year-old Catholic nun, Rice, who’ll turn 84 in two days, Michael R. Walli, 64, both from Washington, D.C., and Greg Boertje-Obed, 58, from Duluth, Minn., were convicted in May on federal charges of attempting to injure the national defense and depredation of government property.

Earlier Tuesday, the judge ordered the three to pay $52,953 in restitution, waiving interest and allowing payments to be made quarterly. The costs include repairs to fences, spray washing and cleaning the exterior of the plant’s storehouse for bomb-making uranium and additional security expenses.

January 28, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (22) | TrackBack

Monday, January 27, 2014

SCOTUS unanimously rules in Burrage that causation requirement precludes drug defendant facing mandatory minimum for abuser's death

In its one criminal justice ruling this morning, the Supreme Court today via a unanimous vote in Burrage v. United States, No. 12-7515 (S. Ct. Jan. 27, 2014) (available here), rejected an effort by federal prosecutors to expand the reach and application of a mandatory minimum sentencing provision for a drug defendant. Here is the closing paragraph of the opinion of the Court authored by Justice Scalia:

We hold that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U. S. C. §841(b)(1)(C) unless such use is a but-forcause of the death or injury. The Eighth Circuit affirmed Burrage’s conviction based on a markedly different under­standing of the statute, see 687 F. 3d, at 1020–1024, and the Government concedes that there is no “evidence that Banka would have lived but for his heroin use,” Brief for United States 33. Burrage’s conviction with respect to count 2 of the superseding indictment is therefore re­versed, and the case is remanded for further proceedings consistent with this opinion.

January 27, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Sunday, January 26, 2014

Texas jury suggests it's much better for NFL players to kill pals than sell them pot and coke

I was pleased and intrigued by all the diverse comments that were part of reader reactions to my rant here last week about Justin Beiber and what I consider the harmful and dangerous leniency too often shown to serious DUI offenders. To summarize the gist of my prior rant(s), I am troubled many serious DUI offenses are punished so relatively leniently, and I fear that rich and famous DUI offenders get even extra leniency because they generally can afford the best lawyers and are generally viewed more sympathetically than most other defendants because of their fame.   It was very helpful to see different folks express different reactions to these sentiments.

Intriguingly, the day after the Bieber arrest news broke, a Texas jury handed down its punishment for another rich and famous person involved in a serious DUI offense.  Via this AP story, here are the details:

Former Dallas Cowboys player Josh Brent avoided prison Friday and instead was sentenced to 180 days in jail and 10 years of probation for a drunken car crash that killed his friend and teammate, Jerry Brown.

Brent was convicted Wednesday of intoxication manslaughter for the December 2012 crash on a suburban Dallas highway that killed Brown, who was a passenger in Brent's car.  Brent could have been sentenced to up to 20 years in prison.  He was also fined $10,000....

One of his attorneys, Kevin Brooks, described the former defensive tackle as "somber."... Brooks said, "It's kind of what we've been fighting for from Day 1. I'm happy for Josh.  Josh is still sad and grieving and that's something he's going to carry with him the rest of his life."

Brown's mother, Stacey Jackson, wasn't in the courtroom when the verdict was read.  She publicly forgave Brent, and said during Thursday's sentencing proceedings: "He's still responsible, but you can't go on in life holding a grudge. We all make mistakes."

Jackson was the last witness the jury heard, and lead prosecutor Heath Harris said her testimony probably helped Brent get probation.  "The victim's family will always have a bearing on the punishment phase," Harris said.  "Should it make a difference?  What if she had been wanting the maximum? Would they have given the maximum?  That's why we let the jury decide."

Prosecutors were pushing for prison time for Brent, whose trial came weeks after a teenage boy in neighboring Tarrant County received no prison time for an intoxication manslaughter conviction in a drunken crash that killed four people.  In that case, a defense expert argued that the teen deserved leniency because his parents had coddled him into a sense of irresponsibility -- a condition the expert termed "affluenza."

The group Mothers Against Drunk Driving, whose headquarters isn't far from the spot where Brent crashed, said in a statement that it was "shocked and appalled" by the athlete's sentence.  "This punishment sends the message that it's OK to drink and drive -- but it's absolutely not," MADD said....

Blood tests pegged Brent's blood alcohol content at 0.18 percent, which is more than twice the state's legal limit to drive of 0.08 percent.  Prosecutors told jurors that the burly, 320-pound lineman had as many as 17 drinks on the night of the crash....

Judge Robert Burns scolded Brent after reading the verdict, saying his actions "bring shame to the city of Dallas."  The judge also mentioned Brent's 2009 drunken-driving conviction in Illinois, which the prosecution revisited in making its case for prison time.

"The judge obviously has a right to express his opinion," said George Milner, one of Brent's attorneys. "I guess the difference is there's no one in that courtroom that knows Josh the way Kevin and I do. And so I see a different person."

Regular readers will not be at all surprised that I think a sentence of probation for 10 years and a $10K fine is far too lenient punishment for Brent's repeat and now deadly penchant for drinking and driving.  (My understanding from this local report is that the Texas jury imposed only the probation term and fine, but that the trial judge added the 180 days in local jail.)  And those who hope Brent will finally shape up after killing his friend might be interested in this NFL report from last year noting he failed two drug tests while on bail awaiting his trial.

Among other interesting aspects of this story is the obvious role that Brent's victims and Texas' system of jury sentencing played in the lenient sentence.  As the above stories suggests, the Texas jury was likely significantly moved by statements from the victim's mother seeming to urge giving Brent a big sentencing break, whereas the local judge was apparently still eager to throw the book at Brent.  I highlight these realities because far too many persons often believe or claim in far too many settings that giving voice to victims' interests and/or allowing jury sentencing will result in (too) harsh sentencing outcomes. In this notable case, giving voice to victims' interests and allowing jury sentencing result in a (too) lenient sentencing outcome.

Finally, as the title of this post indicates, what probably troubles me most about this outcome is what it says about the values and commitments of our modern criminal justice systems in the wake of last high-profile sentencing of an NFL player.  As detailed in this AP article from two months ago, former NFL receiver Sam Hurd was sentenced to 15 years in federal prison for being involved in "a lot of agreements to buy and sell marijuana and cocaine."  (Notably, the federal sentencing guidelines actually recommended that Hurd get a 30 year sentence, but the federal judge varied down to 15 years.)  

In other words, for his first offense trying to make money by selling his pals pot and coke, Sam Hurd got a federal prison sentence 30 times longer than the jail term to be served Josh Brent for killing his pal during his second (known) offense of drinking and driving.  Like the folks at MADD, I worry that these disparate punishment realities "send the message that it's OK to drink and drive" and kill your pal, just make extra sure you do not try to seel them some pot and coke or you might get in really big trouble.  (And do not get me started on the additional messaging from another famous NFL player, Plaxico Burress, having to cut a plea deal to get a state prison sentence only four times longer than what Brent will serve simply for carrying a gun the wrong way and shooting himself!)

Some related posts on drunk driving leniency and NFL player sentencings:

January 26, 2014 in Celebrity sentencings, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, January 23, 2014

Why the #@$%! is Justin Beiber's sentencing exposure so low for underage DUI?

The foul-mouthed question in the title of this post was my reaction to reviewing the details in this AP article concerning the charges brought and sentencing ranges in play following troubled pop star Justin Beiber's arrest for drunk driving early this morning.  Here are the basics:

Justin-bieber-mug-600A judge set pop singer Justin Bieber's bail at $2,500 Thursday after police say he drag-raced down a Miami Beach street while under the influence of alcohol. He was charged with DUI, driving with an expired license and resisting arrest.

Bieber was arrested after police said they saw him speeding down a residential street in Miami Beach in a yellow Lamborghini. Officers say he had an expired license, was initially not cooperative when he was pulled over and smelled of alcohol. Police say Bieber later admitted that he had been drinking, smoking marijuana and taking prescription medication....

R&B singer Khalil Amir Sharieff was arrested in the same incident. He is charged with driving under the influence, and his bond was set at $1,000. Police said Khalil was driving a Ferrari. Both Bieber and Khalil appeared briefly in court wearing bright red jail fatigues. They remained silent while defense attorney Roy Black negotiated bond.

Black, a high-profile lawyer whose clients have included Rush Limbaugh and William Kennedy Smith, said he thought the case would proceed "hopefully as any other case would" in light of Bieber's celebrity status.

Authorities say Bieber was arrested after police saw him and Khalil racing two luxury vehicles down the street at 4:09 a.m., with two other vehicles apparently being used to block off the area. Police say Bieber was clocked at 55 to 60 mph in a 30 mph zone. Earlier Thursday, police chief Ray Martinez said at a news conference that the singer was initially not cooperative when the officer pulled him over. Martinez said the singer also had an invalid Georgia driver's license and admitted to smoking marijuana, taking prescription medication and drinking.... Bieber failed a field sobriety test and was taken to the Miami Beach police station for a Breathalyzer, police said. Results haven't been released....

The street where police say Bieber was racing in mid-Miami Beach is a four-lane residential street divided by a grass median dotted with palm trees. Along one side of the street are small apartment buildings, and on the other side are a high school, a youth center, a golf course and a city firehouse....

Thursday's arrest is just the latest in a series of troubling incidents. Bieber has been accused of wrongdoing in California, but has never been arrested or charged. He is currently under investigation in a felony vandalism case after a neighbor reported the pop star threw eggs at his house and caused thousands of dollars of damage....

Under Florida law, people under the age of 21 are considered driving under the influence if they have a blood-alcohol content of .02 percent or more - a level Bieber could reach with one drink.

For a first DUI offense, there is no minimum sentence and a maximum of six months, a fine of $250 to $500, and 50 hours of community service. For anyone under 21, there is an automatic six-month license suspension. A first conviction for drag racing carries a sentence of up to six months, a fine of $500 to $1,000 and a one-year license suspension....

The Florida arrest likely won't affect Bieber's immigration status. According to U.S. immigration law, authorities do not revoke an individual's visa unless the person has been convicted of a violent crime or been sentenced to more than one year imprisonment.

Immigration attorney Ira Kurzban says neither driving under the influence nor driving without a license can make an individual eligible for deportation. Nor would either of those offenses keep Bieber from being readmitted into the U.S. "He's not subject to deportation because of a DUI offense," said Kurzban, "nor is driving with an expired license a deportable offense."

Long-time readers know that, while I think the scale of punishments for many offenses (especially nonviolent ones) in the US is often much too harsh, I have long viewed the scale of punishments for drunk driving to be way too lenient.  In my view based on the innocent lives ended and permanently damaged every day by drunk drivers, the offense of DUi is one of the most persistent and enduring threat to public safety and one that I think modern criminal justice systems out to be do a heck of a lot more to deter and prevent.

For reasons that should be clear from the above description of Justin Beiber's offense conduct, it would seem as though he has committed one of the most aggravated forms of DUI here: he is an underage drinker, was in a residential neighborhood, was going twice the speed limit, resisted arrest, and (I suspect) was very drunk on numerous intoxicants while drag racing. For all those reasons, I want the book thrown at this dangerous (and famous) criminal. But apparently the worst sentence he can possibly get is "six months [in jail], a fine of $250 to $500, and 50 hours of community service." Yeesh.

As I have said before and as I know I will say again: my interest in deterring and incapacitating drunk drivers makes me eager to see rich, celebrity offenders get slammed with every reasonable shaming and alternative sanction possible ranging from having to forfeit their cars to losing driving privileges for years to paying enormous fines IN ADDITION TO whatever prison term is thought to send the right kind of message concerning these kinds of offenses. Sadly, though, I suspect Beiber will end up just getting a slap on the wrist after Roy Black trains him to say he was sorry, and we all will have to worry about whether and when there will be a next time Beiber (and maybe some of his beiliebers) spill blood rather than just oil on a neighborhood road.

Some related posts on sentencing drunk drivers:

January 23, 2014 in Celebrity sentencings, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (28) | TrackBack

Wednesday, January 22, 2014

Highlights from Federal Sentencing Reporter issue on “White-Collar Sentencing”

I noted in this recent post that I have the honor of speaking this coming Friday morning at a sentencing seminar in New York City sponsored by Proskauer’s White Collar Defense & Investigations Group. This event has been planned in conjunction with the publication of Federal Sentencing Reporter's latest issue on “White-Collar Sentencing” (Vol. 26.1, October 2013). Helpfully, FSR's publisher has made these two articles from this issue available for download without a subscription:

January 22, 2014 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (1) | TrackBack