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:
The Current State of White-Collar Sentencing by Mark D. Harris, Anna G. Kaminska and Samantha Springer
Why the Federal Sentencing Guidelines Should Be Scrapped by Judge Jed S. Rakoff
Sunday, January 19, 2014
Terrific white-collar sentencing event highlighting terrific FSR issue on white-collar sentencing
For reasons that should be obvious, I may be showing a bit of bias in my positive description of an event in New York City at which I will be speaking this coming Friday and which is promoting this recent white-collar sentencing issue of a publication that I help manage. Nevertheless, as highlighted by the invitation and links in this announcement of the event, I do not think my inherent bias undermines the validity of my excitement and praise for this event:
The Current State of White-Collar Sentencing
Please join Proskauer’s White Collar Defense & Investigations Group and the Federal Sentencing Reporter (FSR) for a seminar on criminal sentencing, presented in conjunction with the publication of FSR’s latest issue “White-Collar Sentencing” (Vol. 26.1, October 2013).
Friday, January 24, 2014
Registration and Breakfast: 8:00 a.m. - 8:30 a.m.
Program: 8:30 a.m. - 11:30 a.m.
Eleven Times Square (41st Street and 8th Avenue)
New York, NY 10036
Featured speaker Professor Douglas A. Berman, of The Ohio State University Moritz College of Law, author of the nationally acclaimed Sentencing Law and Policy blog, will lead off the program with a discussion of current topics in white-collar sentencing. This program will feature a review of recent developments in the field, the latest data and statistics, and proposals from distinguished thought leaders on potential improvements to current sentencing policies and procedures. Our panelists will include current members of the U.S. Sentencing Commission’s Practitioners Advisory Group, academics, and practitioners:
- Mark D. Harris – Partner, Proskauer Rose LLP, Board of Editors, Federal Sentencing Reporter
- Sharon Cohen Levin – Chief, Asset Forfeiture Unit in the Criminal Division of the U.S. Attorney’s Office for the Southern District of New York
- Seetha Ramachandran – Deputy Chief, Asset Forfeiture and Money Laundering Section of the DOJ’s Criminal Division
- Mark H. Allenbaugh – Partner, Law Offices of Mark H. Allenbaugh
- Wes Reber Porter – Associate Professor, Golden State University School of Law
- Matthew Benjamin – Associate, Gibson, Dunn & Crutcher LLP
- Mei Lin Kwan-Gett – Partner, Wilkie Farr & Gallagher LLP
- David Deitch – Member, Ifrah Law
- Marcus A. Asner – Partner, Arnold & Porter LLP
Saturday, January 18, 2014
SCOTUS grants cert on pair of cell-phone search cases
As reported in this SCOTUSblog entry, "the Supreme Court agreed on Friday afternoon to rule on police authority to search the contents of a cellphone they take from an individual they have arrested." Here is more from Lyle Denniston's effective review of the new Fourth Amendment new technology cases now on the SCOTUS docket:
The Court accepted for review a state case and a federal case, involving differing versions of hand-held telephone capacity.
The Court rewrote the question in the state case — Riley v. California — to limit it to the constitutionality of the evidence actually used against the suspect at his trial. It granted without limitation the government appeal in the other case: United States v. Wurie....
Both of the new cases on cellphone privacy involve the authority of police, who do not have a search warrant, to examine the data that is stored on a cellphone taken from a suspect at the time of arrest. The two cases span the advance in technology of cellphones: the government case, Wurie, involves the kind of device that is now considered old-fashioned — the simple flip phone. The Riley case involves the more sophisticated type of device, which functions literally as a hand-held computer, capable of containing a great deal more personal information.
The state case involves a San Diego man, David Leon Riley, convicted of shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic weapon. Riley was not arrested at the time of the shooting incident in August 2009; instead, he was arrested later, after he was stopped for driving with expired license plates. Police seized the cellphone he was carrying at the time of his arrest, and twice examined its contents, without a warrant.
The data turned up evidence identifying him as a gang member out to kill members of a rival gang. Other contents included a photo of him with a red car seen at the shooting site. Police were then able to trace calls, leading to a trail of evidence pointing to Riley as a participant in the shooting. No one positively identified him, but the data from the cellphone search was put before the jury, which convicted him of all three counts. He has been sentenced to fifteen years to life in prison....
The government case involves a South Boston man, Brima Wurie. In 2007, a police officer saw him make an apparent drug sale out of his car. The officer confronted the buyer, turning up two bags of crack cocaine. He partially identified his drug source.
Officers followed Wurie from the scene, and arrested him. He was then taken to a police station, where the officers retrieved two cellphones. One of the phones was receiving repeated calls from a number identified as Wurie’s home. The officers checked the phone’s call log. They traced him to his house. The officers deemed the fact that he had cellphones with him as an indication that he carried out drug dealing with the use of such a device.
He was convicted of being a felon who had a gun and ammunition, distributing crack cocaine, and possessing the crack with intent to distribute it He sought to block the use of the evidence taken from his cellphone, but that failed. He was convicted on all charges, and has been sentenced to 262 months in prison.
The U.S. Court of Appeals for the First Circuit struck down two counts of his conviction.
Although the two cases raise the same constitutional issue, the Court did not consolidate them for review, so presumably there will be separate briefing and argument on each. They probably would be argued one after the other, however. The Court did not expedite the briefing schedule, but they still are expected to be heard in April.
Though these two new cases are directly not about the defendants' underlying crimes and sentences, I cannot help but notice the notable differences in state and federal outcomes. The state defendant, Riley, was convicted of the very violent crimes of "shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic weapon," will be eligible for parole in 15 years. The federal defendant, Wurie, was only convicted "being a felon who had a gun and ammunition, distributing crack cocaine, and possessing the crack with intent to distribute," but he has to serve nearly 20 years before having a chance at release from the federal pen.
Wednesday, January 15, 2014
SCOTUS again struggling with state-federal crime intersection in Castleman
The Supreme Court today had oral argument in a challenging federal criminal case today, and SCOTUSblog has lots of great coverage of the issues and today's argument in US v. Castleman thanks to two post today by Amy Howe. Here and links to both SCOTUSblog posts, along with the start of the two lengthy entries:
Some federal laws impose or enhance penalties based on the defendant’s prior criminal convictions. For example, the Armed Career Criminal Act requires a longer sentence for a defendant who has been convicted of being a felon in possession of a firearm and has three prior convictions for “violent felonies.” Even though Congress generally defines terms like “violent felonies,” those definitions may not always match up with the elements of a crime under state or tribal law, requiring the courts to determine whether a particular state offense is a qualifying prior conviction for purposes of federal law.
That is the question before the Court this morning in the case of James Castleman, in United States v. Castleman. The federal government charged Castleman with a violation of a federal law, 18 U.S.C. § 922(g)(9), which prohibits someone who has been convicted of a “misdemeanor crime of domestic violence” from possessing a gun. The statute defines “misdemeanor crime of domestic violence” as a misdemeanor under federal, state, or tribal law (1) by someone who (as relevant here) has a child with the victim, which (2) “has as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.”
After first tackling the constitutionality of a Massachusetts law that imposes a thirty-five-foot buffer zone around abortion clinics in that state, this morning the Justices then turned to interpreting the U.S. Code – specifically, a provision that prohibits someone who has been convicted of a “misdemeanor crime of domestic violence” from possessing a gun. At the end of the oral arguments in United States v. Castleman, there seemed to be dissatisfaction with the interpretations advanced by both sides, possibly leaving room for a compromise suggested by Justice Elena Kagan.
Thursday, January 09, 2014
US Sentencing Commission suggests lowering drug guideline sentences across the board!
In a vote that may not be historic but is still very important and a sign of the times, the US Sentencing Commission earlier today voted to publish proposed amendments to the federal sentencing guidelines which include an across-the-board reduction in the sentences recommended for all drug offenses. This official press release effecively summarizes and contextualizes this proposed amendments and others that were voted upon today at the USSC's public meeting:
The United States Sentencing Commission voted today to publish proposed guideline amendments, including possible reductions to the sentencing guidelines levels for federal drug trafficking offenses. Another proposed amendment addressed implementation of the Violence Against Women Reauthorization Act of 2013.
The bipartisan Commission voted to seek comment on a proposed amendment to lower by two levels the base offense levels in the Drug Quantity Table across drug types in guideline §2D1.1, which governs drug trafficking cases. Commission analysis indicates that such a change in the guidelines would result in a reduction of approximately 11 months for those drug trafficking offenders who would benefit, resulting in a reduction in the federal prison population of approximately 6,550 inmates by the fifth year after the change.
With this reduction, the sentencing guideline penalties for drug traffickers would remain consistent with pertinent drug trafficking statutes, including existing 5 and 10 year statutory mandatory minimum penalties, by structuring the Drug Quantity Table based on levels 24 and 30 (which correspond to a guideline range of 51 to 63 months and 97 to 121 months, respectively), rather than the existing levels of 26 and 32 (which correspond to 63 to 78 months and 121 to 151 months, respectively).
“The Commission’s proposal reflects its priority of reducing costs of incarceration and overcapacity of prisons, without endangering public safety,” said Judge Patti B. Saris, Chair of the Commission. A Commission study of offenders who received a reduced sentence pursuant to a similar two-level decrease in guideline levels for crack cocaine offenders in 2007 found no difference in recidivism rates for those offenders released early compared to those who served their full sentence.
“Like many in Congress and in the executive and judicial branches, the Commission is concerned about the growing crisis in federal prison populations and budgets, and believes it is appropriate at this time to carefully consider the sentences for drug traffickers, who make up about half of the federal prison population,” Saris said. “Our proposed approach is modest,” Saris said. “The real solution rests with Congress, and we continue to support efforts there to reduce mandatory minimum penalties, consistent with our recent report finding that mandatory minimum penalties are often too severe and sweep too broadly in the drug context, often capturing lower-level players.”...
Consistent with its responsibility to respond to major legislation affecting federal crimes, the Commission voted to publish a proposed amendment responding to the Violence Against Women Reauthorization Act of 2013 (Pub. L. No. 113–4).... The Commission also asked for comment on whether the guidelines adequately address the environmental and other harms of drug production operations, in particular the cultivation of marijuana, and requested comments on issues related to the alien smuggling guideline and on resolving circuit court conflicts regarding the sentencing guidelines, among other matters.
The proposed amendments and issues for comment will be subject to a 60-day public comment period running through mid-March. A public hearing on the proposed amendments will be scheduled in Washington, D.C., on March 13, and a hearing concerning issues related to the reauthorization of the Violence Against Women Act will be held February 13.
For a whole bunch of reasons, this strikes me as HUGE news, and a terrific and fitting application of some of the themes that have been stressed by many members of Congress and by the Attorney General in recent months. Indeed, this action by the USSC, though only now a proposal for comment, strikes me as the most important tangible federal sentencing development since the passage of the Fair Sentencing Act. Let me explain why:
1. This proposed amendment is essentially a statement by the USSC that it believes, in its expert opinion, the current guideline sentences for ALL drug offenses are ALL too harsh. Consequently, even before this amendment becomes official and gets even closer to becoming law, every defendant to be sentenced for ALL drug offenses ought to be arguing for a two-level reduction in the calculated guideline range (and/or a variance from the calculated range) based on the Commission's expert advice and opinion that the current guideline sentences for ALL drug offenses are ALL too harsh.
2. The usual critics of the current drug guidelines as way too harsh are sure to advise the USSC in the days ahead that this proposed amendment is a great idea (and, if they were shrewd, they might push for the amendment reduce sentences even more). Meanwhile, we will get to see if anyone will actively oppose this proposed amendments. In the past, DOJ could often be counted on to oppose any proposed pro-defendant guideline amendment. But these days, in the wake of AG Holder's recent speeches and work, I suspect DOJ will not actively oppose the amendment (and may even support it). If it turn out there is little or no opposition to this amendment, federal judges could and should feel even more confident now and in the near future to lower drug sentences when permitted in the exercise of their post-Booker discretion.
3. If (and when?) this guideline lowering amendment becomes official in November 2014, the US Sentencing Commission will have authority to decide to make it retroactive (as it did with all of recent prior crack amendments). Thus, not only could this amendment start lowering many federal drug sentences now and going foward, there is a chance it could end up lowering many long federal drug sentences already being served.
Perhaps I am at risk of already getting too excited (and counting too many unhatched chickens) concerning this USSC vote. But especially if this vote was unanimous within the Commission, and especially if it has the formal or even tacit approval of the Department of Justice, I do not think I am completely off base when suggesting this is a really big deal.
Tuesday, December 31, 2013
Feds now saying Lynne Stewart should get compassionate release from prison term
This notable new AP story, headlined "Government asks NY judge to release ailing ex-terror trial lawyer from 10-year prison term," provides the grist for a useful final post for 2013. Here are the basics:
A dying former civil rights lawyer convicted in a terrorism case and sentenced to 10 years in prison is entitled to compassionate release because she has less than 18 months to live, prosecutors and the Federal Bureau of Prisons told a judge on Tuesday.
In a letter to U.S. District Judge John G. Koeltl, the government said 74-year-old Lynne Stewart was suffering from breast cancer that has metastasized to the lungs and bones. "Despite aggressive treatment, doctors have advised that her prognosis is poor," the letter said, adding she also has been diagnosed with anemia, high blood pressure, asthma and Type 2 diabetes. Stewart has been undergoing treatment at the Federal Medical Center in Carswell, Texas, as supporters have rallied to get her released. Once released, the letter said, she will live with her adult son in Brooklyn.
Stewart was convicted of helping a blind Egyptian sheik communicate with followers while he was serving a life sentence in a plot to blow up five New York landmarks and assassinate then-Egyptian President Hosni Mubarak. She has been imprisoned since 2009 and wasn't scheduled for release until August 2018.
She was first diagnosed with breast cancer in November 2005. The cancer went into remission but was discovered to have recurred after she was imprisoned. Stewart has written to the judge, saying she doesn't want to die in "a strange and loveless place" and wants to go home.
A previous compassionate-release request was denied in part on the grounds that Stewart had more than 18 months to live, though the judge said he would act promptly if the Federal Bureau of Prisons agreed she had less than 18 months to live and granted a compassionate-release application.
A federal appeals court in 2012 upheld Stewart's 10-year sentence, saying she earned it through serious crimes that she refused to acknowledge. The 2nd U.S. Circuit Court of Appeals said it was fair to boost Stewart's sentence from the two years and four months she was given in 2006. The three-judge panel that had ordered Stewart to be resentenced said it disagreed with her claim that her sentence was "shockingly high." It accused her of exhibiting a "stark inability to understand the seriousness of her crimes."
Arguably the biggest sentencing story of 2013 has been a (slight?) softening around the edges of a very harsh federal criminal justice system, largely as a product of the work of Attorney General Eric Holder. It is thus perhaps fitting that on the last day of 2013, federal officials are now supporting compassionate release for Stewart, only a few years after they succeeded in a multi-year, multi-court fight to seek to ensure she received a lengthy prison sentence that could have ensured she had to die in prison.
December 31, 2013 in Celebrity sentencings, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (33) | TrackBack
Friday, December 27, 2013
As fights over John Hinckley's fate continue three decades after his violent crime, what are enduring CJ legacies or lessons?
The question in the title of this post is prompted by this interesting recent Politico piece headlined "Hinckley home for the holidays." Here are the basics:
John Hinckley will almost certainly be home for the holidays, which will bring much joy to his 86-year-old mother but not to the U.S. Justice Department. No matter whether there has been a Democrat in the White House or a Republican, the Justice Department has argued against letting Hinckley out of the mental hospital where he has been incarcerated since 1982.
His family, lawyers and a number of psychiatrists and psychologists who have treated Hinckley over the years say he has responded successfully to treatment, is no longer a danger to himself and others, and that he should be allowed more and more days outside the hospital.
Hinckley had been allowed 10 days per month to visit his mother in Williamsburg, Va. He is not allowed to make visits in Washington because the president of the United States lives in Washington and the last time Hinckley came across a president, Hinckley shot him. Hinckley is also not allowed to visit his sister in Dallas, because the home of former President George W. Bush is a 10-minute walk away. Even in Williamsburg, Hinckley is trailed by Secret Service agents, and he must carry a GPS-enabled phone that tracks his whereabouts.
On average, a person convicted of a violent crime in America serves about five years in prison. Hinckley has served 31 years in St. Elizabeths Hospital, even though he was found not guilty of any crime because a jury decided he was insane at the time he shot Ronald Reagan, press secretary James Brady, D.C. police officer Thomas Delahanty and Secret Service agent Timothy McCarthy....
Last week, a federal judge extended the amount of time Hinckley can spend outside St. Elizabeths to 17 days per month. The seriousness with which Hinckley’s request for added visiting time was treated is indicative of how seriously the government still takes his case: Over a four-month period, lawyers battled for two weeks, and the judge’s decision was an incredible 106 pages long....
The hearing did provide some droll moments. In arguing that Hinckley was not fit to be outside of his mental hospital for a longer period of time, the government said one of his girlfriends at St. Elizabeths was “floridly psychotic.” To which Hinckley’s lawyer replied: “Who is he going to meet at St. Elizabeths?”
Hinckley’s case contains some valuable lessons: The insanity defense is very rarely used in America and usually fails when it is used. Hinckley succeeded, but what has it gotten him? More than three decades in a mental hospital may be better than more than three decades in prison, but unlike a prisoner serving a sentence with a maximum number of years, Hinckley, 58, can be locked up in the hospital until he dies.
Before Hinckley shot Reagan, he had been stalking Jimmy Carter. In October, 1980, Hinckley was arrested at Nashville’s Metropolitan Airport for concealing three handguns and 30 rounds of ammunition in his carry-on luggage. He paid a fine of $62.50 and was released from custody. Four days later, Hinckley, who had undergone psychiatric treatment for depression, went to Dallas, where he bought a gun and six bullets at a pawnshop for $47. Hinckley used this weapon to shoot Ronald Reagan, James Brady and the two law enforcement officers.
Today’s Brady law, which was enacted in 1993 and requires background checks for some gun purchases, is named for James Brady and might have prevented Hinckley from buying that gun. In 1988, his last full year in office, Reagan endorsed the Brady Bill, even though Reagan was not a fan of gun-control laws. His personal affection for Brady might have had something to do with it, but Reagan also said it was a good idea to see if a potential gun buyer had “a record of any crimes or mental problems, or anything of that kind.” The National Rifle Association condemned Reagan’s statement.
St. Elizabeths, built in 1855 as the Government Hospital for the Insane, once housed 8,000 patients. As the hospital crumbled from neglect, and as laws and attitudes about mentally ill people changed, the population dropped to its current 300 and a new hospital was built in 2010. St. Elizabeths no longer needs all of its vast 350 acres, where feral cats still roam, some of which are cared for by Hinckley, who often visits PetSmart on his home visits right after he goes to Wendy’s. About 176 acres of the property will be used for the new $3.4 billion headquarters complex of the Department of Homeland Security.
As most criminal law professors know, one of the legal legacies of Hinckley's case was a significant retrenchment of insanity doctrines in many states. But as Hinckley's own case may highlight, perhaps that it is ultimately a blessing and not a curse even for mentally unstable criminal defendants. And, as most gun control advocates know, Hickley's crime created a uniquely potent person and symbol in support of gun control laws. But as recent high-profile deadly shootings highlight, there is reason to perhaps fear that the US is unable or unwilling to pursue gun control laws that would be likely able to prevent mentally unstable persons from having access to firearms.
"White man charged with 'knockout game' hate crime. Racial hypocrisy?"
Folks on this blog (myself included) often discuss and debate the impact of racial issues, federalism and prosecutorial discretion on the operation of our nation's criminal justice systems. Consequently, this new Christian Science Monitor article with the same headline of this post just caught my eye as blogworthy. Here is the article's subheading: "The Obama administration's decision to charge a white man with a hate crime for allegedly punching a black man as part of the knockout game has led to criticism that it is applying the law unevenly." And here is more from the piece:
The US Department of Justice on Thursday stepped into the cultural fray about the so-called “knockout game” when it brought federal hate crime charges against a white Texas man for assaulting an unsuspecting black man.
The decision shines a brighter spotlight on the knockout game, in which an assailant tries to knock out a bystander with a single punch. A spate of incidents have gathered national attention in recent months, though it is unclear whether the game has become more popular or whether the Internet has simply allowed for isolated incidents to be broadcast more widely.
The majority of the reported incidents, however, have involved black men targeting white victims – and none triggered federal involvement. The fact that the Justice Department has elected to step in now, when a black man was the victim, has led to criticism among conservative pundits that the Obama administration is applying the hate-crime statute unevenly....
Conrad Barrett was arrested Thursday and charged under federal hate crimes law, which defines a hate crime as “motivated by enmity or animus against a protected class.” (The Federal Bureau of Investigation also lists anti-white crimes as hate crimes.)...
Federal prosecutors say Mr. Barrett planned the Nov. 24 attack, which he filmed with his cellphone. He approached “G.C.”, an elderly black man, and said, “How’s it going, man?” then punched him so hard that G.C.'s jaw was broken in two places and he lost three teeth. Barrett then allegedly cried “knockout!” and ran.
He was caught after he told the tale at a bar, where an off-duty cop was present. Federal prosecutors argue that the attack was motivated by racial animus because police uncovered videos where Barrett allegedly used racial epithets and at one point said that black people “haven’t fully experienced the blessing of evolution.” In another video from the day of the assault, Barrett says, “If I were to hit a black person, would this be nationally televised?”
A single hate crime charge carries a maximum of 10 years in federal prison and a $250,000 fine.
Some conservative bloggers see racial hypocrisy in the charges. “This case shows how warped law enforcement has gotten as a result of hate crime legislation,” writes Rick Moran on the American Thinker blog. “No matter who is in charge, the law will always be selectively enforced. It makes a mockery of the notion of equal justice under the law.”
Concern about the game has percolated within the black community. This fall, several black leaders, including Philadelphia Mayor Michael Nutter, spoke out about the knockout game and warned black parents, in particular, about the consequences for dangerous behavior by their kids.
Hate crime charges have been brought this year against one black suspect accused of playing the knockout game, but they were state charges brought by New York in the case of a knocked-out Jewish man.
For his part, Jack Levin, a criminologist at Northeastern University in Boston, is not convinced that knockout game attacks are growing. He argues in an upcoming journal article that racially fueled knockout attacks are in the news is because they’ve actually become rarer than in the past, so they are more notable. The 1990s, he says, had far more reports of so-called “thrill hate crimes” -- think white teenagers beating up homeless men....
According to FBI hate crime statistics, 22 percent of the 3,297 reported racially motivated hate crimes in 2012 were anti-white, while 66 percent were anti-black. (Others included anti-Pacific Islander and anti-Alaskan native attacks.) The Justice Department insisted Thursday that it does not discriminate in how it makes decisions on hate crime charges. “Suspected crimes of this nature will simply not be tolerated,” said US Attorney Kenneth Magidson of the Southern District of Texas. “Evidence of hate crimes will be vigorously investigated and prosecuted with the assistance of all our partners to the fullest extent of the law.”
Especially in light of the fact that "thrill" beatings are likely always to be localized assaults and that such crimes may actually be declining even as media reports about them increased, I am inclined to criticize the feds for getting involved at all before I will express concerns about racial disparities in how local federal prosecutors decide to bring hate-crime federal charges. More broadly, to the extent that a lot of federal involvement in state matters has often been justified by a concerns that southern courts have in the past been much more concerned about white victim than black ones, the fact that the feds have gotten involved in a case like this in Texas (perhaps after state authorities were slow to respond) involving a younger hoodlum going after elderly man, makes me hesitant to throw around labels like racial hypocrisy until I had more detailed information about why prosecutors moved forward with federal charges in this case but not in others.
That all said, this case and the reaction thereto provides further support for my belief that everyone tends to favor a potent federal criminal justice system and unregulated federal prosecutorial discretion unless and until the feds start using their broad powers in ways that a particular group dislikes.
Friday, December 20, 2013
Just how many prominent, successful men are child porn fiends?
The question in the title of this post has been one kicking around in my head since the breaking of last week's news that Senator Lamar Alexander’s chief of staff arrested on child pornography charges (basics reported here). Days later, this child porn story broke in my town concerning a 23-year veteran of the Columbus police force admitting to collecting child porn for a decade. With those stories fresh in mind, I came across this morning this disturbing collection of headlines and stories concerning other prominent, successful men getting sentenced (disparately?) for child porn offenses:
New Sentencing Project policy brief on drug-free zones
I just received an e-mail promoting this new briefing paper from The Sentencing Project titled Drug-Free Zone Laws: An Overview of State Policies. Here is how the paper starts:
The premise behind drug-free zone laws was that drug trafficking near schools posed a danger to children. In order to protect children from drug activity, lawmakers established protected zones around the places where children were most likely to be present, including schools and public parks. Individuals caught using or selling drugs within the protected zone faced substantially higher penalties than others who engaged in the same conduct outside the zone.
The application of drug-free school zone laws has proved problematic for several reasons:
• First, in the sentencing schemes of several states defendants may face two distinct penalties for a single offense.
• Second, the laws are frequently drafted so broadly that they result in enhanced penalties for drug offenses that are a substantial distance from a school, that do not involve school children in the offense, or take place outside of school hours. In Alabama, for example, a drug sale that takes place as much as three miles from a school, college, or public housing project is subject to a mandatory five-year prison term.
• Third, because protected areas are clustered within urban, high-density population areas, the zones disproportionately affect people of color and economically disadvantaged citizens.
In recent years, these problems have led at least seven states, including Connecticut, Delaware, Indiana, Kentucky, Massachusetts, New Jersey, and South Carolina, to reform their drug-free zone laws. This briefing paper provides an overview of these statutes nationally and an assessment of reform activity in recent years.
Thursday, December 19, 2013
Another high-profile insider trading conviction tees up another high-profile federal sentencing
As reported in this New York Times article, headlined "Former SAC Trader Is Convicted of Insider Trading," federal prosecutors got another notable conviction yesterday in a high-profile setting:
Prosecutors lacked the incriminating wiretaps that underpinned past insider trading cases. The emails pointed to no smoking gun. And the government’s star witness, a felon who testified to avoid prison time, fumbled his way through five days of cross-examination.
And yet a federal jury in Manhattan on Wednesday still convicted Michael S. Steinberg, the highest-ranking employee at SAC Capital Advisors to stand trial for insider trading. The verdict, delivered minutes after Mr. Steinberg, 41, fainted in the courtroom, underscored the futility of challenging the government’s crackdown on some of Wall Street’s most vaunted hedge funds.
On the eve of trial, prosecutors conceded that the case was not a slam dunk. But tapping into an anti-Wall Street sentiment — in opening arguments the lead prosecutor claimed that Mr. Steinberg broke the law “to get an illegal edge over ordinary investors who played by the rules” — apparently resonated with a jury of nine women and three men, including two accountants and a former postal worker.
The verdict hands the government a signature victory in its pincerlike pursuit of SAC, the giant fund run by the billionaire stock picker Steven A. Cohen. Coming just weeks after SAC pleaded guilty to insider trading charges and agreed to pay a record $1.2 billion penalty, Mr. Steinberg’s conviction further clouds the future of a firm that was once the envy of Wall Street. And it may also embolden federal authorities in their decade-long investigation of SAC.
Here are the post-conviction and sentencing basics noted in this article:
Judge Sullivan set Mr. Steinberg free on bail until his April 25 sentencing. Mr. Steinberg faces a maximum of 85 years in prison, but will almost certainly receive a sentence of only a few years. Mr. Steinberg’s lawyer, Barry H. Berke, did not immediately comment on the verdict but is expected to appeal.
Wednesday, December 18, 2013
Is there a real problem with animal cruelty federal sentences being way too short?
The question in the title of this post was my reaction to seeing this essay, titled "Vulnerable Victims: Increasing Animal Cruelty Sentences to Reflect Society's Understanding of the Value of Animal Lives," recently posted on SSRN. Authored by Adam Lamparello and Megan Boyd, here is the abstract for this essay:
More should be done to deter animal cruelty. Crush videos, which depict horrific acts of animal cruelty, should be banned. The advisory Guidelines range — as well as the five-year statutory maximum sentence for animal cruelty cases — should be substantially increased. Additionally, courts should continue to impose severe sentences upon those who subject animals to senseless and deadly violence. In so doing, the law will recognize the intrinsic value of animals as conscious, living creatures worthy of legal and constitutional protection.
Candidly, I am not sure I fully understand or approve why many or even any animal cruelty should be prosecuted in federal courts. Though I can imagine settings in which dog-fighting, cock-fighting and other inter-state economic activities based on animal abuse implicate important federal interests, the underlying animal cruelty strikes me as typically a distinctly local activity that ought generally (if not always) be prosecuted in local courts to better reflect local needs and interests. My sense is that there are lots of local variations on what is regarded as criminal treatment of animals (e.g., hunting pigeons in a New York City park likely will be viewed by the local community as much different than hunting pheasants in a South Dakota park). For such behavior, I always think local juries and local judges ought always be the primary, and perhaps the exclusive, assessors of criminality and what constitutes fair and effective punishment.
Tuesday, December 17, 2013
"Mom's Photos of Kids Rules 'Obsessive' but Not Pornography"
The title of this post is the headline of this interesting report from the New York Law Journal about an interesting state ruling concerning the definition of child pornography. Here are the details:
Brooklyn Family Court Judge Steven Mostofsky suggested in a recent decision that he knows what's not pornography when he sees it, and the images a camera-ready Brooklyn mother took of her kids are neither lewd nor obscene. Rather, Mostofsky said, they are the product of a mom who is perhaps a little too eager to capture the family's Kodak moments.
"Any parent knows that you cannot raise a child without making a mistake in judgment from time to time," Mostofsky wrote in Matter of CW, NN-02628-6/13. "And unless that mistake endangers your child or you violate a statute you have the right to correct your mistake without government interference in your family life."
The case began when a man lost his BlackBerry last April. The person who found it noticed that there were numerous photographs of naked children and turned it into police. That resulted in a bench warrant, an investigation by the Brooklyn district attorney and the removal of four children, ranging in age from 7 to 1 based on allegations that the parents had promoted a sexual performance by a child and possessed obscene images.
In one of the photographs, a 4-year-old girl is sleeping, with her legs splayed and her private parts visible. In another, a child is wearing nothing but boots that are far too big. And in another, a child apparently undergoing potty training is depicted in the bathroom with her pants down. Others show the children playing in the bathtub.
The Brooklyn District Attorney's Office executed a warrant and seized various electronic equipment from the parents' home, but did not charge the parents with a crime. Rather, several months later, the district attorney aided the Administration of Children's Services in filing a child abuse case against the parents based on the same photographs, according to court records. ACS alleged that the parents had sexually explicit photographs of their children and failed to cooperate with the agency in its investigation.
But at a hearing, there was no indication the children were in any jeopardy, Mostofsky said. The children's pediatrician, who had cared for the children since birth, said the family was "one of the most normal high functioning families" in his practice and he never saw any signs of abuse. Even the ACS caseworker testified that the children were not in an imminent danger....
The court dismissed the petition, finding no evidence that the parents violated any laws. Mostofsky said the photographs in question do not meet the definition of lewd and the parents did not promote obscene sexual performances.
Monday, December 16, 2013
You be the disparity judge: very different prison sentences for (similar?) fruadsters in different courts
One reason I never fully understand nor fully appreciate very aggressive efforts to try reduce sentencing disparities is because I never fully understand nor fully appreciate whether and when very different sentences for somewhat similar crimes represents warranted or unwarranted disparities. And these two notable headlines reporting on two notable white-collar sentences imposed today in two different courtrooms have me thinking about these matters yet again:
Here, respectively, are the basics of the crimes and punishments in these two cases taken from the above-link press accounts, the first of which is a report from a state court in Ohio:
Bobby Thompson, convicted mastermind of a national veterans charity scam that bilked donors out of an estimated $100 million, was sentenced to 28 years in prison this morning by Cuyahoga County Common Pleas Judge Steven Gall. Thompson is a stolen identity used by John Donald Cody, 67, to set up the U.S. Navy Veterans Association, based in Tampa, which solicited donations in Ohio and 40 other states from 2002-2010.
Gall, who addressed Thompson as Mr. Cody, additionally levied a $6.3 million fine against Thompson, plus a $330,778 judgement to cover the cost of prosecution by the Ohio Attorney General. The judge said factors he considered in determining the sentence included the eight-year duration of Thompson's charity "charade," the amount of money swindled from donors, the efforts Thompson made to hide his identity, and Thompson's lack of remorse or acceptance of responsibility for his actions.
Citing the damage done to veterans who could have been aided by the money that Thompson's charity raised, Gall also ordered that Thompson spend each Veterans Day in solitary confinement for the duration of his prison term....
Prior to the sentencing Joseph Patituce, Thompson's attorney, had suggested a possible sentence of 14 years. After his client got twice that number, Patituce said Thompson still denies that he committed a crime and will appeal.... Patituce said Thompson's refusal to testify in the trial on his own behalf was pivotal. "If he would have testified the verdict would have been different," Patituce said.
Brad Tammaro, an assistant attorney general prosecuting the case, argued against Patituce's suggested 14-year sentence for Thompson, calling that sentence "totally inappropriate." Tammaro also said that "the evidence in the case demonstrates a complete lack of remorse" on the part of Thompson.
And now, from a federal court in Rhode Island:
A federal judge sentenced a Rhode Island lawyer to six years in prison Monday for his role in a $46 million investment fraud that preyed on terminally ill people, calling him the architect of the scheme and saying he didn't seem to recognize the harm he had caused.
Joseph Caramadre was sentenced in Providence after pleading guilty to wire fraud and conspiracy. His lawyers asked for two years in prison and two years in home confinement. Prosecutors sought 10 years. Judge William E. Smith also ordered Caramadre to perform 3,000 hours of community service to help the elderly and terminally ill. He put off the question of restitution because Caramadre's lawyer has objected to the amount.
Caramadre was a prominent lawyer and philanthropist. Prosecutors say he and former employee Raymour Radhakrishnan paid terminally ill people cash, passing it off as charity, then used their personal information to purchase bonds and annuities that would pay out when the person died.
Caramadre pleaded guilty last year but a few months later tried to withdraw his guilty plea. He testified during a hearing on that request that he had committed perjury when he pleaded guilty, prompting the judge to say at the time: "It's amazing to watch a defendant perjure himself by saying he committed perjury the first time." Smith turned down his request to withdraw his plea in May and ordered him immediately into custody.
On Monday, Caramadre stuck with his contention that the plea was a lie, telling the judge he could not say he was sorry for anything although he felt terrible if some terminally ill people felt the investment strategy was not explained to them. "I wish I could play the game," he said, referring to his lack of contrition.
Still, he said, he took responsibility for his guilty plea. Smith said Caramadre seemed to recognize that people were hurt but didn't seem to recognize that he was the one that hurt them.
To the extent I can understand these stories, it seems that many millions of dollars were lost in the fraud on veterans over many years, whereas apparently a lot less money was lost in the fraud on the terminally ill during a shorter period. Also, of course, one defendant was convicted after a lengthy (state) trial and the other was convicted after a (now regretted) federal plea.
Still, is there really any sound way for anyone to assess whether the huge disparity in these two fraud sentences imposed today, one of which is nearly five times as long as the others, are warranted or unwarranted? More broadly, does anyone think it problematic that one defendant was prosecuted in Ohio state court and thus subject to Ohio's sentencing laws that are much different than the other defendant was subject to as a result of his federal prosecution?
Friday, December 13, 2013
"Growing acceptance of marijuana no help to pot convicts serving life in the joint"
The title of this post is the (too clever?) headline of this notable new article from FoxNews.com. Here are excerpts:
John Richard Knock realizes he’ll likely die in a 12-by-10-foot cell in federal prison. Locked behind bars on a marijuana trafficking conviction, America's growing acceptance of the drug is cold comfort to the 66-year-old who was handed two life sentences, plus 20 years — for a first-time conviction.
“I don’t think about it, I just try and stay healthy,” Knock told FoxNews.com of his sentence via phone from the Allenwood Federal Correctional Complex in Pennsylvania. “I just wish society would look at this and say, ‘Hey is this fair?’”
The sentence makes Knock one of 3,278 prisoners recently identified by the American Civil Liberties Union who are serving life without parole for nonviolent drug and property crimes. Nearly four in every five were convicted of crimes involving drugs, including marijuana.
While Knock, who prosecutors said was part of an international marijuana trafficking scheme, has been serving his time, the drug has become increasingly accepted. Recreational use of marijuana is now legal in Colorado and Washington, and 15 other states have also eased restrictions, most for medical purposes. In October, for the first time, a Gallup poll found that a majority of Americans now favor legalizing the drug after reaching 50 percent in 2011....
But Knock and most others serving life for pot convictions were typically traffickers and not simply users, some experts note. Profiting from drugs — even marijuana — is a far cry from puffing on a joint, they say.
"Those who traffic in illegal drugs, who prey on our nation’s youth with poisons that destroy bodies, minds, and futures, should find no refuge in the criminal justice system," John Walters, who was drug czar under President Bush, wrote in a 2007 report. "Long prison terms, in many cases, are the most appropriate response to these predators."
Knock’s sister, Beth Curtis, started lifeforpot.com two years ago to raise attention to her brother’s plight and other prisoners facing similar fates. She hopes that society's changing views on marijuana could prompt a review of the sentences of her brother and others. “When public opinion reaches some kind of tipping point, I think most lawmakers will jump out in front of the issue,” she said. “I don’t see why they would find any value in continuing to oppose [legalizing marijuana] if their constituents want it legalized.”
Some attorneys contacted by FoxNews.com said Knock’s case is far from unique. Randall Brown Johnston, a Missouri-based criminal defense attorney who formerly worked as a prosecutor, recalled the case of Jeff Mizanskey, who was found guilty of possession of five pounds of marijuana in 1993 and was later sentenced to life without parole. “This was a brutal sentence,” Johnston told FoxNews.com. “Unfortunately, the difference between one judge and another can make all the difference. This judge was particularly harsh and had a reputation for that.”...
But Johnston also hopes the changing opinion of pot can lead to relief for people doing life for marijuana-related crimes. “There’s been a great change in public opinions about marijuana convictions,” he said. “It may take another 10 years for lawmakers to catch up and maybe go back and revisit the severity of the laws. But these laws are on the books right now and these are nonviolent people. It costs a huge amount of money to lock them up and people can go out and commit a murder or rape somebody and be sentenced to less.”...
Knock, meanwhile, takes some comfort from what happens outside of prison, even if it leaves him little hope of being free. His son, Aaron, 22, recently graduated from Columbia University in New York with an engineering degree.
Regular readers will not be surprised to learn that I think the Eighth Amendment can and should be a basis for defendants like Knock and Mizanskey to seek relief from their seemingly extreme LWOP sentences based on the "evolving standards of decency" that is supposed to inform the application of the Cruel and Unusual Punishments clause. Especially if (when?) a majority of states legalize medical and/or recreational marijuana, I think the case for an Eighth Amendment attack on extreme sentences for first-time marijuana dealers should become pretty compelling. But, as regular readers also know, I tend to have a much more dynamic view of how the Eighth Amendment should be understood than the vast majority of judges considering Eighth Amendment claims.
A few recent related posts:
- New ACLU report spotlights thousands of nonviolent prisoners serving LWOP terms
- New York Times op-ed asks "Serving Life for This?"
- "Sentenced to a Slow Death"
- What SCOTUS sentencing cases are you least thankful for?
SCOTUS grants cert to clarify required intent for federal bank fraud
As reported in this SCOTUSblog post, the Supreme Court this afternoon granted cert on two cases, one of which involves the required mens rea for federal bank fraud charges. Here is part of Lyle Denniston's summary of the case now officially before the Justices:
The Supreme Court agreed on Friday to clarify ... the kind of proof prosecutors must offer to get a conviction for bank fraud under federal law.... The bank fraud case is Loughrin v. United States....
The newly granted case on federal bank fraud involves a man, Kevin Loughrin, who was sentenced to three years in prison for engaging in a scheme to steal bank checks from peoples’ mailboxes, altering them and then using the checks to buy things at retail stores like Target and Wal-Mart, and then returning the merchandise for cash.
Prosecutors charted him with violations of two provisions of bank fraud law: defrauding a financial institution, and obtaining money from financial institutions by fraud. Both were apparently based on evidence that the checks were drawn on Bank of American and Wells-Fargo Bank and on three credit unions.
Loughrin’s lawyers tried to have the jury told that, in order for him to be convicted on either count, there had to be proof that he intended to defraud a bank or other financial institution....
The Tenth Circuit Court rejected his challenge. Under the bank fraud provision on which he was convicted, the Circuit Court ruled, it was enough that Loughrin had sought to defraud someone else — the retail stores — but there was no need for prosecutors to offer evidence of intent to defraud a bank directly.
How can and should Ohio's justice system deal with merciful elderly aggravated murderer?
I suspect many folks engaged in debates over the wisdom of mandatory minimum sentencing provisions at least feel comfortable with the suggestion that persons convicted of first-degree murder ought to always be mandated to serve at least decades in prison. Indeed, many folks who advocate for the abolition of the death penalty do so by suggesting mandatory LWOP is the right alternative sentence for those deemed the worst kinds of killers under state homicide laws. Though lots of folks (myself included) are troubled by mandatory long prison terms for lower-level drug or gun offenses, lots of folks (myself included) are much less troubled by some mandatory prison requirements in the sentencing rules for how the justice system responds to the very worst intentional violent crimes.
But the provocative question in the title of this post is prompted by a sentencing story developing today in Ohio, which is explained in this AP report headlined "John Wise, attorney to seek clemency from governor in wife's hospital killing." Here are the details:
A man convicted of fatally shooting his ailing wife in her hospital bed will seek clemency from the governor after his sentencing Friday, even if the judge follows a prosecutor's recommendation for a lighter punishment because of the unique circumstances of the case.
John Wise, 68, has said he shot his debilitated wife out of love in August 2012 after she suffered an aneurysm and appeared to be in pain at an Akron hospital. Mercy is not a defense to a murder charge in Ohio. Wise, of Massillon, was convicted on charges including aggravated murder with a firearm specification, which could carry a life sentence.
Summit County Prosecutor Sherri Bevan Walsh called Wise's actions illegal and dangerous but said the case warrants sentencing leniency. She has recommended that Wise be sentenced on a lesser crime and get a six-year term. "In light of the unique facts of this case, a shorter prison sentence is just," she said in a statement.
Whatever the sentence, the defense will pursue clemency from the governor and "will be seeking public support from those who sympathize with John and this situation," defense attorney Paul Adamson said in an email.
Judge Mary Margaret Rowlands in Akron has told attorneys the sentence must fit within legal limits. Neither side found previous case law to support the prosecutor's suggestion that the judge could sentence Wise to six years behind bars for manslaughter, a charge that wasn't among the counts against him but is considered a lesser included offense, Adamson said.
With charges merged for sentencing, it's also possible Wise could get a six-year term if the prosecution asks the judge to sentence him for felonious assault, one of three charges on which he was convicted. April Wiesner, a spokeswoman for the prosecutor, wouldn't say Thursday whether the office intends to pursue that option.
As my first-year Crim Law students know well, "Aggravated Murder" is Ohio's term for first-degree murder and Ohio sentencing law expressly provides that "Whoever is convicted of or pleads guilty to aggravated murder in violation of section 2903.01 of the Revised Code shall suffer death or be imprisoned for life...." Consequently, I am not aware of a sound legal basis for the prosecutor or judge in this case to recommend or impose any sentence other than an LWOP term for the aggravated murder charge. I surmise that the local prosecutor here may be asking for the judge not to sentence on that charge or to have it reduced or dismissed in some way before sentencing.
Ironically, I think the defendant and his lawyer here might want the sentencing judge to feel compelled to impose LWOP and thereby heighten the argument for some kind of clemency relief from Gov. Kasich. If the defendant here gets "only" six years in prison, I suspect it would be much easier for the Governor to leave such a sentence in place and conclude that justice for this murderer has already been tempered by mercy. Indeed, I am inclined to think that the prosecutor here has decided only to seek a six-year prison term for an aggravated murderer because she hope to bring a function end to this case at sentencing today rather than have to deal with a compelling clemency case if John Wise were to get an LWOP sentence.
UPDATE: This new AP report indicates that this aggravated murderer somehow received a sentence of only six years' imprisonment, as prosecutors had recommended:
An Ohio man convicted of fatally shooting his ailing wife in her hospital bed was sentenced Friday to six years in prison and plans to seek clemency from the governor....
The sentence issued by Summit County Court of Common Pleas Judge Mary Margaret Rowlands was in line with prosecutors' recommendation that the Massillon man receive a lighter punishment than the minimum 23 years on his most serious conviction, an aggravated murder count.
Holding a cane and wearing a striped jail outfit, Wise remained seated during the hearing. He made a brief statement, choking up as he apologized to his family and his son. He also thanked the prosecutors and the court.
Prosecutors said the case warranted leniency, but they emphasized that Wise's actions were illegal. "It is not our intention to minimize what happened. You cannot bring a loaded gun into a hospital and shoot someone," Summit County Prosecutor Sherri Bevan Walsh said in a statement after the sentencing.
In court, Assistant Prosecutor Brian LoPrinzi told the judge: "We believe that although his motive may have been pure, he was wrong."
Wise's attorney, Paul Adamson, said they will pursue clemency from the governor and create an online petition for supporters to sign. He called the shooting "an aberrational act" for Wise. "I've never represented a finer man," Adamson told the judge. The prosecutor's office said it would oppose any reduction in Wise's punishment.
Among those at the sentencing was Liz Flaker, one of the jurors who convicted Wise after he pursued an insanity defense. She said the jurors, who deliberated for several hours, took two votes. The first was 9-3 in favor of conviction; the second was unanimous. "There was really no split, per se, but I think there were a couple of people that kind of wavered on ... thinking was he insane or was he not insane," Flaker said. "I think the way the law was written for the state of Ohio is a little bit hazy."
Prosecutors had recommended that Wise be sentenced to six years for manslaughter, a charge that wasn't among the counts against him but is considered a lesser included offense. After neither side found previous case law to support that unusual suggestion, the prosecution instead asked the judge to sentence Wise under his felonious assault conviction with a firearms specification, and the judge did so. Wise also was convicted of aggravated murder with a firearm specification and murder, which could have led to a life sentence.
Police say Wise calmly walked into the hospital room on Aug. 4, 2012, and shot his wife of 45 years at her bedside. She died the next day. Wise told police he intended to kill himself, too, but the weapon jammed.
December 13, 2013 in Clemency and Pardons, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Thursday, December 12, 2013
Killer bride in Montana takes a plea deal to second-degree murder just before jury gets case
As reported in this new AP article, headlined "Woman in newlywed killing case agrees to plead guilty to second-degree murder," a high-profile federal homicide trial has now ended in a high-profile plea deal. Here are the details:
A federal judge accepted a guilty plea Thursday from a Montana newlywed after she reached a surprise plea agreement and said she pushed her husband from a cliff in Glacier National Park. The development came before a jury was set to begin considering the case against 22-year-old Jordan Graham.
In exchange for the plea to second-degree murder, prosecutors agreed to drop a first-degree murder charge and a count of making a false statement to authorities. First-degree murder means a crime is premeditated.
Graham could face a maximum sentence of life in prison on March 27.
In accepting the plea, District Judge Donald Molloy told Graham to recount exactly what happened the night of July 7 when her husband Cody Johnson, 25, fell to his death in the park.
Graham said she told Johnson that she wasn't happy and wasn't feeling like she should after getting married. She said they argued and at one point he grabbed her by the arm. She said she brushed his hand away and pushed him, with one hand on his arm and one on his back. "I wasn't thinking about where we were ... I just pushed," she told the judge. She said she then drove back to Kalispell without calling for help because she was so afraid she did not know what to do.
Earlier in the day, defense attorneys wrapped up their case without testimony from Graham. Instead, they showed the jurors pictures and videos of Graham smiling as she had her hair done and tried on her borrowed wedding dress, then videos of the June 29 wedding and the couple's first dance.
Those images attempted to chip away at the prosecution's image of Graham as a cold, dispassionate woman who didn't want to marry Johnson, and their contention that eight days later she led him to a dangerous precipice in the Montana park and deliberately pushed him to his death....
Both the prosecution and defense rested their cases Thursday after three and a-half days of testimony. The plea agreement was reached before closing arguments took place.
As for the statutory sentencing basics, here is the sentencing provision of 18 USC 1111, the federal murder statute: "Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life." The federal sentencing guideline for second degree murder, 2A1.2, provides a base offense level of 38 and recommends an upward departure if "the defendant's conduct was exceptionally heinous, cruel, brutal, or degrading to the victim." Also, I think there could be (and likely will be?) some sentencing debate over whether an adjustment up for a vulnerable victim or an adjustment down for acceptance of responsibility should be applied.
If we assume the guideline level of 38 sticks (and she has no serious criminal history), the USSG Sentencing Table recommends a prison sentence of 235-293 months (just under 20 to 25 years). I suspect the defense team will likely argue for a downward variance from his range, while perhaps the prosecutors will ask for something toward the top of the range. Thus, I would right now put the (way-too-early) over/under betting line for here federal sentence at 20 years' imprisonment.
Previous related posts:
- You be the federal sentencing judge: "Newlywed Admits to Pushing Husband off Cliff"
- Seeking pre-trial sentencing views in high-profile federal murder prosecution of homicidal bride
Texas tough means probation for teen who killed four and injured more while drunk driving?
The question in the title of this post is my reaction to this CNN report headlined "Texas teen Ethan Couch gets 10 years' probation for driving drunk, killing 4." Regular readers know that drunk driving is one notable crime that I fear is consistently under-punished throughout the United States, and the details of this story confirms my fear that elitism and a variety of other potentially pernicious factors may explain why. Here are the details:
To the families of the victims, Ethan Couch was a killer on the road, a drunken teenage driver who caused a crash that left four people dead.
To the defense, the youth is himself a victim -- of "affluenza," according to one psychologist -- the product of wealthy, privileged parents who never set limits for the boy.
To a judge, who sentenced Couch to 10 years' probation but no jail time, he's a defendant in need of treatment.
The decision disappointed prosecutors and stunned victims' family members, who say they feel that Couch got off too easy. Prosecutors had asked for the maximum of 20 years behind bars. "Let's face it. ... There needs to be some justice here," Eric Boyles, who lost his wife and daughter, told CNN's "Anderson Cooper 360" on Wednesday night.
"For 25 weeks, I've been going through a healing process. And so when the verdict came out, I mean, my immediate reaction is -- I'm back to week 1. We have accomplished nothing here. My healing process is out the window," he said.
Lawyers for Couch, 16, had argued that the teen's parents should share part of the blame for the crash because they never set limits for the boy and gave him everything he wanted. According to CNN affiliate WFAA, a psychologist called by the defense described Couch as a product of "affluenza." He reportedly testified that the teen's family felt wealth bought privilege, and that Couch's life could be turned around with one to two years of treatment and no contact with his parents.
Couch was sentenced by a juvenile court judge Tuesday. If he violates the terms of his probation, he could face up to 10 years of incarceration, according to a statement from the Tarrant County Criminal District Attorney's Office. Judge Jean Boyd told the court she would not release Couch to his parents, but would work to find the teen a long-term treatment facility.
"There are absolutely no consequences for what occurred that day," said Boyles. "The primary message has to absolutely be that money and privilege can't buy justice in this country." His wife, Hollie Boyles, and daughter, Shelby, left their home to help Breanna Mitchell, whose SUV had broken down. Brian Jennings, a youth pastor, was driving past and also stopped to help.
All four were killed when the teen's pickup plowed into the pedestrians. Couch's vehicle also struck a parked car, which then slid into another vehicle driving in the opposite direction. Two people riding in the bed of the teen's pickup were tossed in the crash and severely injured. One is no longer able to move or talk because of a brain injury, while the other suffered internal injuries and broken bones.
"There is nothing the judge could have done to lessen the suffering for any of those families," said defense attorney Scott Brown, CNN affiliate KTVT reported. "(The judge) fashioned a sentence that is going to keep Ethan under the thumb of the justice system for the next 10 years," he said. "And if Ethan doesn't do what he's supposed to do, if he has one misstep at all, then this judge, or an adult judge when he's transferred, can then incarcerate him."
Earlier on the night of the accident, June 15, Couch and some friends had stolen beer from a local Walmart. Three hours after the crash, tests showed he had a blood alcohol content of 0.24, three times the legal limit, according to the district attorney's office. "We are disappointed by the punishment assessed but have no power under the law to change or overturn it," said Assistant District Attorney Richard Alpert. "Our thoughts and prayers are with the families and we regret that this outcome has added to the pain and suffering they have endured."
It is very rare, but not impossible, for prosecutors to challenge the sentence on the ground that it was too lenient, CNN legal analyst Sunny Hostin said. "To give him a pass this time given the egregious nature of his conduct -- four deaths -- is just incomprehensible," she said. It is unfair that other young defendants without the same wealth could end up in jail for a lot less, said Hostin, of CNN's "New Day" morning show.
December 12, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack
Monday, December 09, 2013
Seeking pre-trial sentencing views in high-profile federal murder prosecution of homicidal bride
In part because federal jury trials for traditional common-law crimes are rare, and especially because this case has already garnered considerable media attention, I am likely to follow closely the high-profile federal murder trial starting today in Montana. This AP article, headlined "Jury selection begins in newlywed murder trial," provides the basics and sets up the sentencing query of this post:
Jury selection gets underway Monday in the murder trial of a newlywed bride accused of pushing her husband to his death in Glacier National Park just days after their wedding. Jordan Graham has pleaded not guilty to charges of first-degree murder, second-degree murder and making a false statement to authorities in the death of Cody Johnson.
Graham, 22, and Johnson, 25, had been married for eight days when they argued over her doubts about the marriage, prosecutors said. She texted a friend that she planned to confront Johnson about those doubts the night of July 7.
Graham's trial in U.S. District Court in Missoula is expected to last one to two weeks with dozens of friends, acquaintances and expert witnesses — though no eyewitnesses — scheduled to testify.
Federal prosecutors will attempt to convince jurors that Graham deliberately pushed Johnson to his death, then made up a story about how he was last seen driving off with friends. Graham's federal public defenders will ask jurors to believe that while Graham thought she married too young, she loved Johnson and was only trying to remove his hand from her arm when he fell off the steep cliff.
Witnesses will describe Graham as a naive, immature and shy woman who deals better with the children she watched over as a day care worker than with most adults, federal public defender Michael Donahoe wrote in his trial brief. Johnson liked to race cars, drink beer, play softball and hang out with friends, and he changed for Graham when they began dating, Donahoe wrote. Johnson started going to church and stopped most of his drinking, Donahoe wrote.
Graham may have had misgivings about getting married too young, but that doesn't prove she intended to kill Johnson, Donahoe wrote. Federal prosecutors have mostly circumstantial evidence in their case to prove the killing was premeditated, he wrote.
Assistant U.S. Attorney Zeno Baucus wrote in his own brief that the killing was premeditated, which can be proven by circumstantial evidence. That circumstantial evidence — or the "surrounding circumstances" before, during and after Johnson's death — is needed because Graham and Johnson were the only direct witnesses to what happened on the cliff, he wrote. Graham had told Johnson before the wedding that she had a "surprise" planned for him later that day, Baucus wrote.
After she pushed him, she didn't call police or seek any assistance. Instead, she began sending text messages to friends, planting stories about Johnson's disappearance and talking about her dance moves, Baucus wrote. Graham initially told investigators that Johnson had driven away with friends the night of July 7. Three days later, she led park rangers to his body so the search would be called off "and the cops will be out of it," according to prosecutors' court filings....
In the recorded portion [of a police interview], Graham said she and Johnson argued about whether they should have waited longer to get married, and they took that argument from their Kalispell home to Glacier park, according to a transcript. Graham said Johnson grabbed her arm at one point. She said she knocked his arm off and pushed him in one motion, causing him to fall from a steep cliff near the Loop trail. "I think I didn't realize that one push would mean for sure you were over," Graham said, according to the transcript.
As I review these facts, it seems that there is essentially no dispute that Graham pushed her husband off a cliff to his death. At issue at trial is only what her mens rea was at the time of this push, which in turn will determine whether she is guilty of murder, manslaughter or perhaps not guilty of any homicide charge.
Given these realities, I am eager to hear now some reader perspective on what would be appropriate sentencing outcomes if we assume the best and/or assume the worst about this defendant's mens rea. If a jury were to conclude she was a premeditated, purposeful killer of her new husband and thus convicts this defendant of first-degree murder, do folks think an LWOP sentence would be justified? Alternatively, if a jury concludes that the cliff push was a terrible, but still blameworthy, mistake and thus convicts this defendant of involuntary manslaughter, do folks think a short or lengthy prison sentence would be appropriate?
Previous related post: