Wednesday, February 18, 2015

"The Divisibility of Crime"

The title of this post is the title of this notable new article by Jessica Roth discussing some of the Supreme Court's recent Armed Career Criminal Act jurisprudence.  Here is the abstract:

Near the end of the Supreme Court’s 2012-2013 term, the Court decided Descamps v. United States, which concerned the application of the federal Armed Career Criminal Act (ACCA). The ACCA is a recidivist statute that vastly increases the penalties for persons convicted of federal firearms offenses if they have previously been convicted of certain qualifying felonies.  Descamps represents the Court’s most recent word on the so-called categorical approach, which directs courts to consider the elements of a prior offense of conviction, rather than the underlying facts of the crime, in determining whether the prior conviction “counts” for purposes of applying the ACCA and other sentencing enhancements and for determining the immigration consequences of prior convictions. This Essay is the first scholarly work to track the immediate effects of Descamps and to explore its implications for the criminal law more broadly. It shows that the decision is indeed having a significant effect on criminal sentencing, resulting in a steady flow of sentencing reversals and prospectively narrowing the class of defendants eligible for sentencing enhancements based on prior convictions. But more broadly, Descamps has called attention to the statutory specificity that legislators are capable of and the adjudicative clarity that courts can promote, if there are incentives for doing so. Until now, the Court has done little to encourage either. Thus, the opinion may push courts and legislators to think more carefully and systematically about what facts must be established to constitute a particular criminal offense, how such facts are established and recorded in the context of an adjudicative proceeding, and the consequences that flow from greater or lesser specificity. Ultimately, this impact may be felt not only in the context of applying recidivist statutes and sentencing enhancements, but also in other contexts that require attention to the basis for a criminal conviction, including the doctrine governing what constituent facts of a crime require jury unanimity and claims under the Double Jeopardy Clause.

February 18, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

AP report details that, functionally, California kills many more sex offenders than murderers

Formally, California sends many more murderers to its death row than any other state and it has more condemned capital prisoners than two dozen other US death penalty states combined.  But California has only managed to actually execute fourteen of those sentenced to die and nobody has been executed by the state in nearly a decade.  Meanwhile, as this new AP report details, over the last eight years, while California has not moved forward with an execution of a single condemned murderer, a total of 78 sex offenders have been slaughtered inside California's prisons.  Here are the basics:

California state prisoners are killed at a rate that is double the national average — and sex offenders ... account for a disproportionate number of victims, according to an Associated Press analysis of corrections records.

Male sex offenders made up about 15 percent of the prison population but accounted for nearly 30 percent of homicide victims, the AP found in cataloging all 78 killings that corrections officials reported since 2007, when they started releasing slain inmates' identities and crimes.

The deaths — 23 out of 78 — come despite the state's creation more than a decade ago of special housing units designed to protect the most vulnerable inmates, including sex offenders, often marked men behind bars because of the nature of their crimes.

In some cases, they have been killed among the general prison population and, in others, within the special units by violence-prone cellmates. Officials acknowledge that those units, which also house inmates trying to quit gangs, have spawned their own gangs.

Corrections officials blamed a rise in the prison homicide rate on an overhaul meant to reduce crowding. As part of the effort, the state in 2011 began keeping lower-level offenders in county lockups, leaving prisons with a higher percentage of sex offenders and violent gang members....

The problem is most acute with sex offenders. Last fall, the corrections department's inspector general reported that so many homicides occurred in the "increasingly violent" special housing units reserved for vulnerable inmates that the department could no longer assume that inmates there could peacefully co-exist. The report looked at 11 homicide cases that were closed in the first half of 2014 and found that 10 victims were sensitive-needs inmates. Using corrections records, the AP found that eight of them were sex offenders.

For a variety of reasons, most states have special facilities incorporated into their "death row," and condemned prisoners on death row are often eager to be well behaved in the hope of increasing their odds of getting out from under a death sentences eventually. Consequently, it can often be much safer for certain prisoners to be condemned and confined to death than to be in the general population. And this new AP report reinforces my sense that a serious California criminal likely would lead a more peaceful and safe life in prison if and when he murders and gets condemned to death than if he just commits a sex offense. (In addition to being a disturbing practical reality, these dynamics might perhaps prompt and incentivize a "rational rapist" in California to murder one or more his victims in order to ensure he can potentially avoid the dangers of the general prison population and live out his life peacefully pursuing appeal after appeal while safe and secure on death row.)

February 18, 2015 in Death Penalty Reforms, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (19) | TrackBack

Monday, February 16, 2015

Feds assert, despite reversal of hate crime convictions, Amish beard-cutters should get same sentences

As reported in this AP piece, headlined "Federal prosecutors want same sentences in Amish beard-cutting case when they are resentenced," the feds are claiming that the reversal on appeal of the most-serious charges against a group of Amish defendants (details here) should not impact their sentence one whit.  Here are the details:

Sixteen Amish men and women whose hate crime convictions in beard- and hair-cutting attacks were overturned still should receive the same sentences, federal prosecutors told a judge who will resentence the group.

The members of the eastern Ohio Amish group are scheduled to be resentenced March 2 after the 6th U.S. Circuit Court of Appeals overturned only their hate crimes convictions. New sentences are required because the original sentences were based both on hate crimes convictions and convictions on other charges but did not differentiate between them.

The attacks were in apparent retaliation against Amish who had defied or denounced the authoritarian style of Sam Mullet Sr., leader of the Bergholz community in eastern Ohio. The U.S. Attorney's Office, in a court filing on Friday, said Mullet should be resentenced to 15 years for concealing evidence and making false statements to the FBI. Both of those charges were not overturned.

The other defendants should also be given the same lesser sentences. Those defendants who have already been released should be sentenced to time served, the prosecutors said.

Prosecutors argued that the conduct that led to the hate crime charges, which included kidnapping, should still be considered even if the defendants are no longer convicted of a hate crime.

Defense attorneys are expected to file their response next week.

I am neither surprised or troubled that the feds want the same sentences imposed on the less culpable defendants who have already finished serving their prison time. But I struggle to see how urging the same exact sentence for Sam Mullet Sr. despite reversal of the most serious convictions against him serves to "promote respect for the law" as 18 USC 3553(a)(2)(A) requires.

Related prior posts:

February 16, 2015 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, February 13, 2015

Texas sentencing jury finally brings needed sanction to recidivist drunk driver

A helpful reader, knowing I have long expressed concern about under leniency often shown to dangerous repeat drunk drivers at sentencing, altered me to this notable state sentencing story out of Texas.  The story, headlined "Texas man sentenced to two life terms after 10th DWI," reinforces my view that juries can sometimes be wiser than judges at sentencing:  

Bobby Gene Martin’s brushes with law reinforcement for driving drunk date to 1981. But this week, his 30-year streak of DWI arrests came to an abrupt end.

A Texas jury convicted the 64-year-old of his 10th drunk driving offense along with a retaliation charge for threatening to harm the arresting officer and his family. They gave him two life sentences.

The jury came back with its guilty verdict after three hours of deliberation. And throughout the proceedings, the jury had no idea that Martin had already been arrested nine other times for drunk driving. They only knew that this was at least his third. “You could see they were actually shocked that he’d had 10 DWIs and was still out and about driving around,” Montgomery County Assistant District Attorney Kyle Crowl said.

Martin was also convicted of threatening to kill the arresting deputy, his wife, his children and his mother, according to the prosecutor. It also wasn’t the first time he had made such threats, Crowl noted. During a 1999 incident, Martin was accused of threatening to kill the officer who arrested him and “everything he ever loved.”...

Martin will be 80 before he is eligible for parole, according to Crowl.

UPDATE:  I just noticed this Houston Chronicle article which asserts that Bobby Gene Martin is the "33rd [Texas] inmate serving life in state prison for drunk driving" as a result of multiple drunk driving convictions. Though I do not know Texas law well, I presume that most (if not all) of these recidivist drunk drivers were given these life sentences by juries and that they are eligible for parole at some point like Bobby Gene Martin. I make this point because it highlights some contrast between these recidivist alcohol offenders and the hundreds of recidivist drug offenders serving life without parole in federal prison due to a mandatory LWOP statutory minimum sentencing term.

February 13, 2015 in Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (3) | TrackBack

"The Perils of Overcriminalization"

The title of this post is the title of this new Heritage "Legal Memorandum" authored by Michael Mukasey and Paul Larkin.  Here is its abstract:

Overcriminalization is a serious problem that has led to questionable prosecutions and injures the public interest.  Thousands of criminal laws are scattered throughout the federal criminal code, and hundreds of thousands of regulations are supposed to implement those laws.  In addition, the whole notion of consciousness of wrongdoing in the criminal law has been obscured.  

Because prosecutors have no incentive to change a system that rewards their excesses, revisions may have to come from Congress — itself the source of much of the problem, both in the laws it passes and in the standards it uses to measure prosecutorial success.  If we are to take pride in the claim that we are a nation governed by law, the criminal law must be sensible and accessible, not simply a trap for the unwary.

February 13, 2015 in Offense Characteristics, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, February 11, 2015

District Judge, to chagrin of feds, relies on jury poll to give minimum sentence to child porn downloader

This fascinating story from the federal courts in the Northern District of Ohio provides an interesting perspective on the input and impact that juries can have in the federal sentencing process in at least one courtroom. The piece is headlined "Cleveland federal judge's five-year sentence in child porn case frustrates prosecutor," and here are excerpts:

A federal judge in Cleveland sentenced a Dalton man convicted of child pornography charges Tuesday to five years in prison, a move that frustrated prosecutors who pushed for four times that length based, at least in part, on a recommendation from the U.S. probation office.

A jury convicted Ryan Collins in October of one count possessing, distributing and receiving child pornography and one count possession of child pornography. Police found more than 1,500 files on his computer, and he was charged with distributing because he used peer-to-peer file sharing programs.

Under federal law, a judge can sentence a defendant to up to 20 years in prison if he or she is found guilty of child porn distribution. On Tuesday, during Collins' sentencing, Assistant U.S. Attorney Michael Sullivan asked U.S. District Judge James Gwin to give the maximum sentence for the charge.

Meanwhile, the U.S. Department of Probation and Pretrial Services said a guideline sentence for Collins, who is 32 and has no criminal history, would be between about 21 and 27 years in federal prison. While higher than the maximum sentence, the office's calculation accounted for several factors in Collins' case -- including the age of the victims and not taking responsibility for his actions.

But Gwin handed down a five-year sentence to Collins, the minimum allowable sentence for a distribution charge. The judge said that after Collins' trial, he polled jurors on what they thought was an appropriate sentence. The average recommendation was 14 months, Gwin said.

In addition to citing the juror's various jobs and where they lived, Gwin said the poll "does reflect how off the mark the federal sentencing guidelines are." He later added that the case was not worse than most of the child pornography cases that he sees and that five years "is a significant sentence, especially for somebody who has not offended in the past."

Sullivan objected to the sentence, saying it is based on an "impermissible" survey. He also argued before the sentence was issued that 20 years was justified because prosecutors did not show the jury each one of the images found on Collins' computer. Gwin rejected that argument, though, explaining that all of the photos were presented as evidence, even if they were not shown at trial.

Under federal law, either prosecutors or defense attorneys can appeal a sentence if they feel it was improper. It is uncommon for federal judges to issue sentences that go so far below the probation office's recommendations, though, so appeals by prosecutors are rare. Mike Tobin, a spokesman for the U.S. Attorney's Office, said that prosecutors "will review the judge's sentence and make a decision at the appropriate time."...

Iams also said that even though his client was convicted by a jury, the fact that he went to trial may have helped Collins in the end, since Gwin was then able to poll the jury and get an idea of where the community's feelings were on sentencing. "If he had just pled guilty, that might have not been there. At the end of the day, it may have helped," Iams said.

Collins was taken into custody following his sentencing. In addition to the prison sentence, Collins was also ordered to pay a $5,000 fine and $10,000 in restitution to two girls seen in the pornography Collins downloaded. Once he is released, he will have to register as a sex offender and will be on supervised release for five years.

February 11, 2015 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, February 09, 2015

Briefs seeking SCOTUS review of 15-year mandatory federal sentence for possessing shotgun shells

As regular readers may recall from this post, a few months ago a Sixth Circuit panel rejected an Eighth Amendment challenge brought by Edward Young, who is serving a "mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer."  I helped file an amicus brief on in support of Mr. Young's claim in the Sixth Circuit, and now I have  helped put together another amicus brief in support of his SCOTUS cert petition.  

The SCOTUS cert amicus, which can be downloaded below, makes a number of distinct points based in part on the (little-known) fact that the Supreme Court has never reviewed on the merits a federal term-of-years sentences under modern Eighth Amendment doctrines.  Writing along with Prof Michael J. Zydney Mannheimer, this brief starts and ends this way: 

This Court has never addressed how the Eighth Amendment’s proportionality and procedural safeguards for defendants facing the most serious penalties are to be applied when federal courts consider a challenge to a federal sentence. Both the original meaning of the Cruel and Unusual Punishments Clause and modern Eighth Amendment jurisprudence reasonably suggest that the proportionality and procedural safeguards in the Eighth Amendment should have a more robust application when federal courts are reviewing federal sentences, especially when a severe sentence significantly conflicts with state punishment norms.

These realities call for this Court to take up Mr. Young’s petition for certiorari and declare unconstitutional his fifteen-year mandatory federal prison term based on his harmless possession of shotgun shells in violation of 18 U.S.C. § 922(g)(1).  The vast majority of U.S. States do not even criminalize possession of shotgun shells by a convicted felon (surely because mere passive possession of ammunition alone is neither inherently dangerous nor a ready instrument of crime absent possession of a firearm).  The handful of States that do criminalize this possession offense treat the crime as a misdemeanor or set a statutory maximum prison sentence for the offense well below the 15- year mandatory minimum federal term Mr. Young received. Moreover, Amici are unaware of any case from any State or locality in which a defendant received any prison sentence of any duration for offense conduct that involved only the harmless possession of a small number of shotgun shells. Legislative enactments and state practices thus provide in this case potent objective evidence of a national consensus against Mr. Young’s federal punishment....

Perhaps a majority of this Court has come now to the view that the Eighth Amendment functionally and formally provides no restrictions whatsoever on how severe Congress may punish adults through prison terms for conduct it deems criminal, and that only structural provisions like the Commerce Clause “impose[] real limits on federal power” and establish “boundaries to what the Federal Government may do” in the exercise of its police powers through the federal criminal justice system.  Alderman v. United States, 562 U.S. ___ (2011) (Thomas, J., dissenting from the denial of certiorari).  But, as explained above, a sounder originalist and modern understanding of the Cruel and Unusual Punishments Clause is as a constitutional provision that can operate to protect individual Americans from the most extreme application of severe mandatory prison terms for the most minor transgression of federal law.  Indeed, if Mr. Young’s fifteen-year mandatory federal prison term based on his harmless possession of shotgun shells is allowed to remain in place without further review, this Court would essentially signal to Congress that it very well could constitutionally make even “overtime parking a felony punishable by life imprisonment.” Rummel v. Estelle, 445 U.S. 263, 274 n.11 (1980).

  Download Young v US Cert Amicus

Prior related posts:

February 9, 2015 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, February 07, 2015

Split Washington Supreme Court decides accomplices must receive distinct sentencing treatment

As reported in this local article, headlined "Washington Supreme Court alters sentencing structure for accomplices," the top court in the Evergreen State earlier this week issued an interest opinion concerning how the state's sentencing structure should be applied to those found guilty as accomplices. Here is a summary from the press report:

In a 5-4 opinion released Thursday, the state’s high court ruled that convicted identity thief Larry Hayes should have received a standard-range sentence after being convicted of a host of felonies in 2009.  Instead, he got a 15-year term under a provision that allows prosecutors to seek extra punishment for egregious offenders. The majority ordered the case back to Pierce County for re-sentencing.

At issue is how people charged as accomplices should be treated under the law at sentencing. For years, Washington law has prescribed that accomplices and principle actors in a crime be exposed to the same culpability, a concept Pierce County Prosecutor Mark Lindquist on Thursday called “in for a penny, in for a pound.”

In an opinion written by Justice Charles Johnson and signed by Justices Charles Wiggins, Susan Owens, Mary Fairhurst and Sheryl Gordon McCloud, the majority ruled that should not always be the case, especially where sentencing is concerned.

Until Thursday, when a prosecutor sought an exceptional sentence for a criminal defendant, he or she had to prove to a jury that certain aggravating factors made the crime worse than usual. The requirement applied to principle actors and accomplices alike. Thursday’s majority opinion said the blanket application to accomplices is improper.

Accomplices should be judged for their specific role in the crime and not just on the crime itself, the majority ruled. An accomplice, to qualify for an exceptional sentence, must have knowledge that the crime he or she is involved in is worse than usual, Johnson wrote, and prosecutors now must prove that knowledge to a jury. “...this finding of knowledge ensures that the defendant’s own conduct formed the basis of the sentence,” Johnson wrote....

Justice Debra Stephens authored the dissent, which was signed by Chief Justice Barbara Madsen and Justices Mary Yu and Steven Gonzalez. Stephens argued that the majority was turning decades of case law on its head for no good reason. “It makes no sense that a principal should be punished regardless of whether he or she knew the crime was a major economic offense but an accomplice, who committed the same crime, should not be,” she wrote.

She went on to say the ruling would have far-reaching impacts. “It is no exaggeration to say that the way co-participants have long been tried in this state will need to change in order to accommodate the knowledge finding the majority superimposes on the enhancement statute,” Stephens wrote.

Lindquist agreed with Stephens’ assessment and said he would consider asking state lawmakers to pass legislation clarifying what they want to happen to accomplices. “They could say, ‘We meant what we wrote: Principals and accomplices are equally culpable,’” Lindquist said.

Appellate attorney Nancy Collins, who worked on Hayes’ appeal, said she thinks the majority got it right and that the application of the ruling would not be onerous. “I don’t see it as a change in the law at all,” Collins said. “The majority said the jury needs to consider the defendant’s individual conduct.”

The full opinion in Washington v. Hayes, No. 89742-5 (Wash. Feb. 5, 2015), is available at this link.

February 7, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Thursday, February 05, 2015

You be the judge: what federal sentence for Silk Road creator Ross Ulbricht?

Ross-ulbricht-600x450This Wired article provides the basic story on a notable modern federal defendant who, thanks to a jury verdict yesterday, is now a high-profile convicted felon awaiting sentencing:

A jury has spoken, and the mask is off: Ross Ulbricht has been convicted of being the Dread Pirate Roberts, secret mastermind of the Silk Road online narcotics empire.

On Wednesday, less than a month after his trial began in a downtown Manhattan courtroom, 30-year-old Ulbricht was convicted of all seven crimes he was charged with, including narcotics and money laundering conspiracies and a “kingpin” charge usually reserved for mafia dons and drug cartel leaders.  It took the jury only 3.5 hours to return a verdict.  Ulbricht faces a minimum of 30 years in prison; the maximum is life.  But Ulbricht’s legal team has said it will appeal the decision, and cited its frequent calls for a mistrial and protests against the judge’s decisions throughout the case.

As the verdict was read, Ulbricht stared straight ahead. His mother Lyn Ulbricht slowly shook her head, and his father Kirk put a hand to his temple. After the verdict, Ulbricht turned around to give his family a stoic smile.  “This is not the end,” Ulbricht’s mother said loudly as he was led out of the courtroom. “Ross is a hero!” shouted a supporter.

From his first pre-trial hearings in New York, the government’s evidence that Ulbricht ran the Silk Road’s billion-dollar marketplace under the pseudonym the Dread Pirate Roberts was practically overwhelming.  When the FBI arrested Ulbricht in the science fiction section of a San Francisco public library in October of 2013, his fingers were literally on the keyboard of his laptop, logged into the Silk Road’s “mastermind” account.  On his seized laptop’s hard drive, investigators quickly found a journal, daily logbook, and thousands of pages of private chat logs that chronicled his years of planning, creating and day-to-day running of the Silk Road. That red-handed evidence was bolstered by a college friend of Ulbricht’s who testified at trial that the young Texan had confessed creating the Silk Road to him. On top of that, notes found crumpled in his bedroom’s trashcan connected to the Silk Road’s code.  Ulbricht’s guilty verdict was even further locked down by a former FBI agent’s analysis that traced $13.4 million worth of the black market’s bitcoins from the Silk Road’s servers in Iceland and Pennsylvania to the bitcoin wallet on Ulbricht laptop.

Ulbricht’s defense team quickly admitted at trial that Ulbricht had created the Silk Road. But his attorneys argued that it had been merely an “economic experiment,” one that he quickly gave up to other individuals who grew the site into the massive drug empire the Silk Road represented at its peak in late 2013.  Those purported operators of the site, including the “real” Dread Pirate Roberts, they argued, had framed Ulbricht as the “perfect fall guy.”...

But that dramatic alternative theory was never backed up with a credible explanation of the damning evidence found on Ulbricht’s personal computer.  The defense was left to argue that Ulbricht’s laptop had been hacked, and voluminous incriminating files injected into the computer — perhaps via a Bittorrent connection he was using to download an episode of the Colbert Report at the time of his arrest.  In their closing arguments, prosecutors called that story a “wild conspiracy theory” and a “desperate attempt to create a smokescreen.” It seems the jury agreed.

Despite the case’s grim outcome for Ulbricht, his defense team seemed throughout the trial to be laying the grounds for an appeal.  His lead attorney Joshua Dratel called for a mistrial no less than five times, and was rejected by the judge each time. Dratel’s protests began with pre-trial motions to preclude a large portion of the prosecution’s evidence based on what he described as an illegal, warrantless hack of the Silk Road’s Icelandic server by FBI investigators seeking to locate the computer despite its use of the Tor anonymity software. As the trial began, Dratel butted heads with the prosecution and judge again on the issue of cross-examining a Department of Homeland Security witness on the agency’s alternative suspects in the case, including bitcoin mogul and Mt. Gox CEO Mark Karpeles. And in the last days of the trial, Dratel strongly objected again to a decision by the judge to disallow two of the defense’s expert witnesses based on a lack of qualifications....

Ulbricht will nonetheless be remembered not just for his conviction, but also for ushering in a new age of online black markets.  Today’s leading dark web drug sites like Agora and Evolution offer more narcotics listings than the Silk Road ever did, and have outlived law enforcement’s crackdown on their competitors. Tracking down and prosecuting those new sites’ operators, like prosecuting Ulbricht, will likely require the same intense, multi-year investigations by three-letter agencies.

Though I am not familiar with all the likely sentencing particulars, I would expect a guidelines calculation in this case to be life and that prosecutors will urge a guideline-recommended LWOP sentence. The defense surely will seek the minimum sentence, which in this case is the not-so-minimum 30 years in the federal greybar hotel.

In addition to pursuing their appeal, Ulbricht's defense team might reach out to Brian Doherty at Reason, who has this provocative commentary headlined "Silk Road: Ross Ulbricht's Loss is a Loss for Justice, Liberty, Safety, and Peace: The operation Ulbricht was found guilty of managing was one guaranteed to save lives, reduce real crime, and preserve liberty." Here are excerpts:

[T]he government's multi-year, incredibly expensive attempt to take down the site and prosecute Ulbricht were bad for liberty, bad for markets, bad for the safety of those who choose to use substances the government has declared forbidden, and bad for America....

Ulbricht, if he's guilty of what they tried him for, is guilty of nothing but trying, and for a while succeeding, in doing a good thing for his fellow citizens, the world, and the future. His case will be remembered not as one of stalwart cops saving the world from dangerous crime, but of a visionary martyr punished for the good he did.

The combination of cryptography and Bitcoin are out of the bottle, and what it ultimately means is that the war on drugs is even more hopeless than it always was. But the government seems to never run out of candidates to be the last person to be a victim of that war, a victim of that mistake. May Ulbricht be among the last.

February 5, 2015 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (7) | TrackBack

Friday, January 30, 2015

Notable new commentary on Yates v. US and overcriminalization

Via email I learned about these two notable new commentaries discussing issues surrounding the federal criminal case Yates v. United States soon to be resolved by the Supreme Court:

SOX on Fish: A New Harm of Overcriminalization by Todd Haugh

Going Overboard: Yates and DOJ’s “Most Serious Offense” Charging Policy by Scott Coffina & Edward James Beale

January 30, 2015 in Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, January 20, 2015

Should we be concerned about the economic or human costs of Colorado's efforts to get Aurora killer James Holmes on death row?

The question in the title of this post is my first reaction to this lengthy Denver Post piece discussing what to expect now that jury selection is about to begin in the Colorado's high-profile capital trial of Aurora theater shooter James Holmes.  The piece is headlined "Aurora theater shooting trial could strain limits of jury service," and here are some excerpts:

After 50 days of testimony and deliberations, the jurors who decided the fate of Oklahoma City bomber Timothy McVeigh emerged haunted. "Have you ever seen 12 people cry?" one juror told reporters about deliberations for the 1997 verdict, handed down in a federal courtroom in Denver.  "I'm 24," another said, "But I don't feel 24 anymore."

Pummeled with horrific accounts of the attack, freighted with finding justice amid tragedy, the jurors had been pushed to near shattering. "I personally felt subject to the same sort of trauma that some of the victims and survivors went through," another said.

Now, imagine if that trial had lasted twice — even three times — as long.  The trial of Aurora movie theater gunman James Holmes, which starts Tuesday with jury selection, is expected to be so lengthy and arduous that it could strain the very process of justice it seeks to uphold.

Nine thousand potential jurors — one of the largest pools in American history — have been summoned for the case.  If picked, jurors will be ordered to serve for as long as five straight months, longer than any state criminal trial in memory in Colorado. They will weigh whether Holmes was sane in July 2012, when he killed 12 people inside the Century Aurora 16 movie theater and tried to kill 70 others, and, if they find he was, they will decide whether he should be executed.

For their service, they will be guaranteed a wage of only $50 a day, a rate that could plunge their income to near the federal poverty level.  Even harder, during what will likely be the most stressful time of their lives, they will be forbidden from talking to anyone about the experience — not their family or fellow jurors or counselors.  Until deliberations begin sometime late this year, the jurors will bear that stress in silence, despite a growing body of research that shows jury service on traumatic cases can lead to mental and physical illness and impact jurors' decision-making....

Since the 1930s, perpetrators of public mass shootings nationwide are more likely to die at the scene than to be captured, according to research by Minnesota Department of Corrections official Grant Duwe.  Of the 45 percent who were arrested, only a fraction ever faced a jury.  And even fewer of those were charged with killing in an attack as devastating to the community as Holmes is for the Aurora theater shooting.

William Bowers, a researcher for the Capital Jury Project at the State University of New York in Albany, likens the theater shooting trial to that currently taking place for one of the suspected Boston Marathon bombers.  "There's nothing really comparable to these cases in modern experience, in terms of duration of the trial and effect on the jury," Bowers said....

But, at its most extreme limits, jury service can become less of a duty and more of an ordeal, legal experts say.  Studies have shown that jurors in traumatic trials can suffer from insomnia, anxiety, anger and depression.  One study documented cases of jurors who broke out in hives, developed ulcers or increased their alcohol consumption while serving at trials. And after the trial is over, some jurors have said they experienced flashbacks....

In recognition of the strains of jury service, courts across the country increasingly offer counseling to jurors. Jon Sarche, a spokesman for the Colorado Judicial Branch, said counseling will be made available to jurors in the theater shooting case once the trial is over.  But — because judges routinely order jurors not to talk about the case with anyone, to protect the trial's integrity — counseling is almost never available to help jurors manage stress during the case.

While this piece effectively highlights some economic and human costs to be borne the jurors in this case, the question in the title of this post also suggests thinking about the economic and human costs sure to burden the lawyers and the court system throughout this case.  And, as the question in the title of this post is meant to highlight, these costs are all endured in service now only to having Holmes sentenced to death; inevitable appeals and other factors will likely mean Holmes is unlikely ever actually to be executed by Colorado for his crimes.

I suspect these kinds of costs and uncertainties explain (and clearly justify?) why the feds were willing to cut LWOP plea deals for other mentally-challenged mass killers like Ted Kaczynski (the Unibomber) and Jared Lee Loughner (the Tucson shooter).  But Colorado prosecutors in this case appear quite committed to enduring all these costs in service to trying to get James Holmes sentenced to death. 

Recent and older related posts (with lots of comments):

January 20, 2015 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Sunday, January 18, 2015

Highlighting that most prisoners in Wisconsin now sent there for parole or probation violations

B99420782z.1_20150117211308_000_g199j1go.1-0This lengthy Milwaukee-Wisconsin Journal Sentinel article highlights the interesting reality of just who gets sent to prison in the Badger State and how. The piece carries this headline and subheading: "No new conviction, but sent back to prison; Re-incarceration for rule, parole violations costs taxpayers millions." Here is how the article starts:

More than half of the nearly 8,000 people sent to Wisconsin's prisons in 2013 were locked up without a trial — and they weren't found guilty of new crimes.  Some were punished for violating probation or parole by doing things such as accepting a job without permission, using a cellphone or computer without authorization, or leaving their home county. Some were suspected of criminal activity, but not charged.

Re-incarcerating people for breaking the rules costs Wisconsin taxpayers more than $100 million every year. The process that forces violators back behind bars relies largely on the judgment of individual parole agents, which can vary widely. Once accused of violations, people on parole can be sent back to prison for years without proof beyond a reasonable doubt — and they are left with little chance of a successful appeal.

Hector Cubero's agent, for example, recommended he be returned to prison on his original sentence of life with the possibility of parole after he inked a tattoo on the shoulder of a 15-year-old boy. The tattoo featured a cross and a quote from peace activist Marianne Williamson: "Our deepest fear is not that we are inadequate, our deepest fear is that we are powerful beyond measure."

Cubero maintains the teen lied about his age. Had Cubero been found guilty of tattooing a minor, a city ordinance violation, he would have been ticketed and fined $200. If he had been convicted of tattooing without a license, a misdemeanor, he could have been fined $500 and faced a maximum of 30 days in jail. But because he was on parole at the time, Cubero, 52, has served more than two years — with no guarantee he will ever go home.

Cubero already had spent more than 27 years behind bars for being a party to the crimes of first-degree murder and armed robbery. Court records show Cubero, 18 at the time of the offense, did not plan the robbery or fire the shots that killed the victim, a Milwaukee dentist.

Until the parents of the 15-year-old complained about the tattoo, Cubero had never violated parole, according to Corrections Department records. During the four years he'd been free, he passed all his drug tests, paid his restitution and court costs and worked fairly steadily. Nonetheless, Cubero's parole agent recommended he be sent back to prison. The agent, with cooperation from a prison social worker, also blocked his fiancée, Charlotte Mertins of Delafield, and her three children, all in their 20s, from visiting him.

January 18, 2015 in Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, January 13, 2015

Brief account of what proposed fraud guideline changes might amount to

This new Reuters article, headlined "U.S. panel proposes changes to white-collar prison sentences," provides a reasonable summary of the likely import and impact of the guideline reform proposes announced by the US Sentencing Commission late last week (discussed here). Here are excerpts:

Some executives and others convicted of stock fraud could face shorter prison terms under a U.S. commission's proposal to change how white-collar criminals are sentenced. The U.S. Sentencing Commission on Friday released proposals to amend advisory federal guidelines that would shift the emphasis in calculating a sentence for frauds on the market to financial gains instead of investor losses.

The proposal follows years of criticism by defense lawyers and some judges who say that the guidelines focus too much on financial losses caused by fraud, leading in certain cases to sentences that are too harsh. Judges have discretion to impose any sentence, but are required to consider the guidelines.

In stock fraud cases, losses can be in the hundreds of millions of dollars, contributing to an advisory sentence of life in prison. Under the commission's proposal, judges in these cases would consider the gains from a fraud, a number defense lawyers say would often be considerably smaller.

The Sentencing Commission has scheduled a March 12 hearing on the proposals. The panel has until May 1 to submit any amendments to Congress. If Congress does not act by Nov. 1, the changes become law....

The commission has proposed setting a threshold sentencing level for gains, ensuring punishment in cases where profits are minimal. Depending on what floor is set, there is a "very good chance a number of cases would result in lower guideline sentencing ranges," said David Debold, a lawyer at Gibson, Dunn & Crutcher who heads up an advisory group to the commission.

Defense lawyers cautioned that the proposed changes would not always result in a lower sentencing range. Some frauds like penny stock manipulation, for example, could involve significant gains to defendants and might still lead to lengthy sentences. Other proposals would affect the weight given to factors such as the harm to victims and the sophistication of a fraud.

Some defense lawyers say the proposals overall do not sufficiently emphasize a defendant's culpability and leaves loss as a driving factor for the bulk of fraud cases involving identity theft, mortgage fraud and healthcare fraud. "These changes don't go nearly as far as we would have liked," James Felman, a Florida lawyer and member of an American Bar Association task force advocating changes to the guidelines.

U.S. District Judge Patti Saris, the commission's chair, said in a statement that the panel did not consider "the guideline to be broken for most forms of fraud," but that its review had identified "some problem areas where changes may be necessary." 

Prior related post:

January 13, 2015 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

SCOTUS unanimously rejects defense effort to limit reach of sentence enhancement in federal robbery statute

The US Supreme Court this morning handed down an impressively short unanimous opinion in Whitfield v. US, No. 13-9026 (S. Ct. Jan. 13, 2015) (available here), which swiftly rejects a bank robber's attempt to limit the reach of a provision of the statute with which he was convicted.  Here is the start of the opinion by Justice Scalia for the Court, as well as a few passages that my most interest sentencing fans:

Federal law establishes enhanced penalties for anyone who “forces any person to accompany him” in the course of committing or fleeing from a bank robbery. 18 U. S. C. §2113(e).  We consider whether this provision applies when a bank robber forces someone to move with him over a short distance....

In an attempt to support his position that “accompany” should be read to mean “accompany over a substantial distance,” Whitfield observes that a forced-accompaniment conviction carries severe penalties: a mandatory minimum sentence of 10 years, and a maximum sentence of life imprisonment.  In 1934, a forced-accompaniment conviction could even be punished with death.  Act of May 18, 1934, ch. 304, §3, 48 Stat. 783. The severity of these sentences, Whitfield says, militates against interpreting subsection (e) to capture forced accompaniment occurring over a small distance.

But it does not seem to us that the danger of a forced accompaniment varies with the distance traversed.  Consider, for example, a hostage-taker’s movement of one of his victims a short distance to a window, where she would be exposed to police fire; or his use of the victim as a human shield as he approaches the door.  And even if we thought otherwise, we would have no authority to add a limitation the statute plainly does not contain.  The Congress that wrote this provision may well have had most prominently in mind John Dillinger’s driving off with hostages, but it enacted a provision which goes well beyond that.  It is simply not in accord with English usage to give “accompany” a meaning that covers only large distances.

January 13, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Monday, January 12, 2015

"Disgust, Dehumanization, and the Courts’ Response to Sex Offender Legislation"

A helpful reader alerted me to a notable article by Alexandra Stupple appearing in the Fall 2014 issue of National Lawyers Guild Review which has a title that also serves as the title of this post. The relative short article (which starts on page 8 of this pdf link) has the following introduction and conclusion:

Sex offenders have been subject to unprecedented restrictions and punishment.  The government’s treatment of sex offenders is a clear example of the dangers of laws derived from and upheld because of the emotion of disgust.  Disgust has led to a dehumanization of this category of people, which has led to a stripping of their constitutional rights.  The law’s treatment of sex offenders is a clear example of why the law should eschew employing the emotion of disgust during all proceedings.  In addition, the courts’, particularly the Supreme Court’s, treatment of the other branches’ actions regarding sex offenders is illustrative of why the law needs to insist upon empirical data in support of legislation and why the courts should not always defer to the other branches’ findings....

Today, all communities rightfully think of crimes such as child rape and molestation as the grave and heinous acts they are; however, a panic has ensued which has led to a squandering of public resources, the dehumanization of a swath of people, and the denigration of the Constitution.  For the protection of everyone’s constitutional rights, a conscious commitment by all lawmakers to use empirical data in their fact-finding and decision-making is required, even if done while feeling and expressing emotions like anger and contempt.  This may be the only way evidence-based practices and policies that actually protect the public from sexually violent persons will be born.

January 12, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Friday, January 09, 2015

US Sentencing Commission proposes (modest but significant) changes to the fraud guidelines

Download (1)As reported in this official news release, the "United States Sentencing Commission voted today to publish proposed guideline amendments, including revisions to the sentencing guideline governing fraud." Here are the basics from the release:

The bipartisan Commission voted to seek comment on a proposed amendment to revise guideline §2B1.1 governing fraud offenses by clarifying the definition of “intended loss,” which contributes to the degree of punishment, and the enhancement for the use of sophisticated means in a fraud offense. The proposed amendment also revises the guideline to better consider the degree of harm to victims, rather than just the number of victims, and includes a modified, simpler approach to “fraud on the market” offenses which involve manipulation of the value of stocks.

The proposed revisions to the fraud guidelines come after a multi-year study, which included a detailed examination of sentencing data, outreach to experts and stakeholders, and a September 2013 symposium at John Jay College of Criminal Justice in New York. “We have heard criticism from some judges and members of the bar that the fraud guideline may be fundamentally broken, particularly for fraud on the market cases,” said Judge Patti B. Saris, Chair of the Commission. “Based on our extensive examination of data, we have not seen a basis for finding the guideline to be broken for most forms of fraud, like identity theft, mortgage fraud, or healthcare fraud, but this review has helped us to identify some problem areas where changes may be necessary.”...

Consistent with the Commission’s mission to make the guidelines more efficient and more effective, the Commission also voted today to clarify the provisions allowing for sentence reductions for offenders with mitigating roles in the offense and the provisions governing jointly undertaken criminal activity.  The Commission similarly proposed adjusting the tables based on amounts of money for inflation in an attempt to keep the guidelines current and follow the approach generally mandated by statute for most civil monetary penalties....

The proposed amendments and issues for comment will be subject to a public comment period running through March 18. A public hearing on the proposed amendments will be scheduled in Washington, D.C., on March 12. More information about these hearings, as well as a data presentation on today’s proposed fraud amendment and other relevant data, will be available on the Commission’s web site at www.ussc.gov.

Here are links to new materials already posted on the USSC website this afternoon:

As the title of this post indicates, these new proposed amendments strike me as relatively modest but still quite significant. Most notably, the white-collar defense bar is likely to be very interested in what these changes signal and suggest, and any federal fraud defendants currently serving very long guideline sentences may want to start thinking about whether these proposed amendments might help their cause if they are formally adopted and thereafter made retroactive.

January 9, 2015 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, January 05, 2015

Previewing (and predicting) federal sentencing prospects for former Virginia Gov McDonnell

The Washington Post has this lengthy article, headlined "What to expect at former Virginia governor Robert McDonnell’s sentencing," providing an effective preview of a high-profile white-collar sentencing taking place in federal court tomorrow. Here are highlights:

As a federal judge on Tuesday sets the punishment for former Virginia governor Robert F. McDonnell, he will consider legal issues as well as sweeping personal questions.  U.S. District Judge James R. Spencer will look first to guidelines that call for McDonnell to receive as much as 12 years and seven months for trading the influence of his office to a smooth-talking businessman in exchange for sweetheart loans, lavish vacations and high-end merchandise.

But the judge is not bound by those recommendations.  And his ultimate decision rests, in part, on intangible considerations: How serious was McDonnell’s public corruption?  What penalty might deter others in the former governor’s shoes?  What weight should be given to the good the former governor has done?...

rosecutors want McDonnell to spend at least 10 years and a month in prison.  The former governor’s attorneys believe a sentence of community service — and no time behind bars — would be sufficient.

Both sides will make their best pitches to the judge in person beginning at 10 a.m. McDonnell may offer a personal plea, as may some of his supporters.  Spencer has been given more than 440 letters that friends, family members and others wrote on the governor’s behalf, urging leniency and extolling the virtues of the onetime Republican rising star.  Spencer also has reviewed filings from prosecutors, who have accused McDonnell of feeling no remorse and still seeking to blame others....

The starting point for determining the former governor’s punishment is this: The U.S. probation office — the federal agency tasked with calculating a range of appropriate penalties according to the federal sentencing guidelines — has recommended that McDonnell face between 10 years and a month to 12 years and seven months in prison. There is no parole in the federal system, and if McDonnell were to be incarcerated, he would be able to reduce his time behind bars with good behavior by only 54 days a year, at most.

Spencer is not bound by the probation office’s recommendation — it is merely a technical calculation of how the office believes federal sentencing guidelines should be applied in the case — but experts say he typically heeds its advice....

After Spencer determines the guideline range, he will weigh entirely different factors as he fashions what he considers an appropriate punishment.  Among those that prosecutors and defense attorneys highlighted in McDonnell’s case: the nature and circumstances of his offenses, McDonnell’s personal history and characteristics, and the need to deter others from ending up in similar straits....

A former prosecutor and Judge Advocate General’s Corps officer, Spencer was appointed to the court by President Ronald Reagan in 1986.  Known as a no-nonsense and efficient jurist, he took senior status on the bench last year, meaning he is now semi-retired.  Jacob Frenkel, a former federal prosecutor who now does white collar criminal defense work, said Spencer probably will not impose a decade-long sentence, but defense attorneys’ bid for only probation is something of a “Hail Mary.”

I share the view that it is unlikely McDonnell will get either probation as he wishes or the 10 years in prison sought by the feds. As a betting man, I would put the over-under line at around three years. The nature of the crime and the defendant leads me to think the sentencing judges will be likely to impose a substantial prion term, but still something less (perhaps much less) than half a decade.

Prior related posts:

UPDATE: I just discovered that Randall Eliason at his Sidebars Legal Blog has this lengthy post about the McDonnell sentencing which provides much more detailed review of the interesting guideline calculation issues that are in dispute in the case.  

January 5, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (1) | TrackBack

Friday, January 02, 2015

"Policing Public Order Without the Criminal Law"

The title of this post is the title of this intriguing new paper now available via SSRN authored by Charlie Gerstein and J.J. Prescott. Here is the abstract:

Millions of Americans every year are charged with and detained for “public order” offenses. These minor offenses are unusual in that the actual sentence violators receive when convicted — usually time already served in detention — is beside the point.  Rather, public order offenses are “enforced” prior to any conviction by subjecting accused individuals to arrest, detention, and other legal process.  These “process costs” are significant; in fact, they distort plea bargaining to the point that the substantive law behind the bargained-for conviction is largely irrelevant.

Maintaining public order is an important civic function, yet these unmoored cases have serious long-term consequences for defendants, their families, and our criminal justice institutions.  Many scholars have argued that vague terms and broad standards in defining public order crimes results in broad discretion that leads to abuse.

In this essay, we argue instead that criminal law process costs essentially decouple statutory discretion from actual police behavior, rendering the debate about statutory language by and large moot.  Abuse is better addressed by first recognizing that, in the context of public order crimes, discretion has little to do with substantive criminal law and that, instead, focus is much better placed on mitigating the harmful consequences discretion can generate and on limiting police discretion through other means.  To this end, we propose providing the police with new civil enforcement tools that will be equally effective at preserving order but that will in all likelihood cause significantly less unnecessary harm.

January 2, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Sunday, December 28, 2014

Former Virginia Gov McDonnell upcoming sentencing sets out white-collar terms of debate

McdonnellThis lengthy local article from Virginia, headlined "U.S. seeks McDonnell sentence of 10 to 12 years," details the competing arguments being set forth in a high-profile federal white-collar sentencing slated for next month. Here are excerpts from the piece:

Prosecutors are asking that former Gov. Bob McDonnell, convicted of 11 corruption charges in September, be imprisoned for at least 10 years and one month to as much as 12 years and seven months when sentenced Jan. 6 by U.S. District Judge James R. Spencer.

In sentencing memorandums filed Tuesday, the U.S. Attorney’s Office asked for a term within the federal sentencing guideline range determined by the probation office, while McDonnell’s lawyers asked for 6,000 hours of community service instead of prison time and argued the guideline range should be 33 to 41 months.

“After serving as a prosecutor and attorney general, this defendant corrupted an office that few bribery defendants achieve, and then falsely testified and shifted blame for his actions before the jury that convicted him,” wrote Dana J. Boente, the U.S. attorney for the Eastern District of Virginia. McDonnell, the government wrote, “stands before this court as only the 12th governor in the United States — and the first governor of Virginia — to be convicted of a public corruption offense.”

McDonnell and his wife, Maureen, were convicted in a six-week trial in which the marriage and the former first lady were portrayed as troubled.  Maureen McDonnell was convicted of nine charges, one later thrown out, and will be sentenced Feb. 20.  Bob McDonnell testified on his own behalf, but his wife did not.  The McDonnells were indicted in January for accepting more than $177,000 in gifts and loans from Jonnie R. Williams Sr., the then-CEO of Star Scientific, in exchange for promoting a new dietary supplement product. Williams, a key government witness, was granted immunity....

In its 31-page sentencing memorandum, the government urged Spencer to adopt the findings in the presentencing report from the probation office and reject McDonnell’s objections.  Prosecutors argued that McDonnell abused his power and violated his duty to the people of Virginia.

“The defendant is fond of pointing out that under Virginia law, no limits on gifts to elected officials existed and that he thus claims that he was merely a ‘part of the culture of unlimited gifts that has permeated Virginia politics,’ ” prosecutors wrote. “But he was not convicted of accepting gifts; he was convicted of accepting bribes. And bribery has always been a violation of state (as well as federal) law,” they added.  The government said the presentencing report correctly factored in obstruction of justice based on what it termed McDonnell’s lies from the witness stand....

McDonnell’s 51-page sentencing position, also filed Tuesday, took a very different view of the case.  It said: “Bob McDonnell has devoted his life to public service, family, and faith. This offense is a total aberration in what was by all accounts a successful and honorable career.”

McDonnell argued the appropriate guideline range should be 33 to 41 months. “A sentence of imprisonment of any length, however, much less one of 10 years or more, would be a severely disproportionate punishment,” his lawyers contend.  “Instead, a variant sentence of probation with a condition of 6,000 hours of full-time, rigorous, unpaid community service at a remote location served over three years is ‘sufficient, but not greater than necessary,’ to provide a just punishment,” they wrote.

“An outcome in which Mr. McDonnell serves any time in prison ... while Mr. Williams suffers no criminal justice consequences at all would neither promote respect for the law nor provide a just resolution to this case,” McDonnell’s lawyers argued.

Much of McDonnell’s sentencing position is taken up with his biography, accomplishments, and service in the military and as a state legislator, Virginia attorney general and governor.  Seven appendixes, including hundreds of letters of support, were filed along with the document.

The memorandum notes the outline of the scheme for which he was convicted.  “Mr. McDonnell’s actual conduct, however, differs in critical ways from that of others who have been convicted under the same federal bribery laws,” McDonnell’s lawyers argued.  “Mr. McDonnell did not demand or receive cash payments from Mr. Williams.  He did not take briefcases of money or hide stacks of $100 bills in his freezer,” they wrote.  “Rather, the quid that the indictment charges that Mr. McDonnell or his family members received were gifts — a wedding gift to Mr. McDonnell’s daughter and several rounds of golf at Mr. Williams’ country club — as well as three loans at commercial rates that the McDonnells paid back with interest.”

While McDonnell’s decision to accept the items showed poor judgment, Virginia state ethics laws at the time permitted officials to accept unlimited gifts of that nature, McDonnell’s lawyers argued.  “Numerous state officials routinely took advantage of these laws and accepted luxury vacations, rounds of golf, sports tickets, dinners, and other things of value from donors and wealthy hangers-on.”...

The defense contends that McDonnell’s trial and conviction already act as powerful deterrents to criminal conduct by others, making imprisonment unnecessary.  “No elected official would want to live through the last year of Mr. McDonnell’s life,” his lawyers write.  McDonnell and his family “have already suffered tremendously,” the lawyers write. “His once-promising political career is dead,” and “his marriage has fallen apart.”

Defense lawyers wrote that McDonnell’s “sterling reputation in the community has been irreparably damaged,” he has lost his ability to practice law, he is likely to lose his state pension, “and he will have to sell his family home.”  The former governor’s lawyers also contend prison is unnecessary to protect the public because there is no risk McDonnell will commit any further crimes. “He is 60 years old and out of politics.”

Relatedly, this Washington Post article reports on some of the notable letters written to the sentencing judge in support McDonnell. The piece is headlined "Former Virginia governor Bob McDonnell’s downfall is wife’s fault, daughter says," and it provides this link to some notable character letters.

Prior related posts:

December 28, 2014 in Booker in district courts, Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Friday, December 19, 2014

"Regulating Sexual Harm: Strangers, Intimates, and Social Institutional Reform"

The title of this post is the title of this timely paper authored by Allegra McLeod now appearing on SSRN. Here is the abstract:

The criminal regulation of sexual harm in the United States is afflicted by deep pathology. Although sexual harm appears before the law in a variety of forms — from violent rape, to indecent exposure, to the sexual touching by an older child of a younger child — the prevailing U.S. criminal regulatory framework responds to this wide range of conduct with remarkable uniformity.  All persons so convicted are labeled “sex offenders,” and most are subjected to registration, community notification, and residential restrictions, among other sanctions.  These measures purport to prevent the perpetration of further criminal sexual harm by publicizing the identities and restricting the residential opportunities of persons presumed to be strangers to their victims.

But even as these measures render many subject to them homeless and unemployable, sexual abuse remains pervasive and significantly underreported in our schools, prisons, military, and between intimates in families.  Thus, at once, the U.S. criminal regulatory regime constructs a peculiarly overbroad category of feared persons, compels a misguided approach to this population, and neglects the most prevalent forms of vulnerability to sexual predation and assault.

This essay argues that an alternative social institutional reform framework could address pervasive forms of sexual harm more meaningfully and with fewer problems than attend the prevailing criminal regulatory framework.  This alternative framework would depart in large measure from purportedly preventive post-conviction criminal regulation, focusing instead on institutional, structural, and social dynamics that enable sexual violence and abuse.

December 19, 2014 in Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Tuesday, December 16, 2014

Federal judge in sentencing proceeding(?!?!) declares Prez Obama's immigration order unconstitutional

As reported in this CNN piece, a federal district judge used a federal criminal case to render an opinion that President Obama's recent immigration execution action was unconstitutional. Here are the basic details of a peculiar decision:

A federal judge in Pennsylvania ruled Tuesday that President Barack Obama's move to halt deportations for millions of undocumented immigrants violates the Constitution -- but it's not clear that the ruling will have any immediate impact.

Pittsburgh-based U.S. District Judge Arthur Schwab, a George W. Bush appointee, became the first judge to rule on the legality of Obama's executive overhaul of immigration rules when he issued his unusual opinion in a criminal case. The Justice Department shot back that the judge was "flatly wrong" and his ruling wouldn't halt the implementation of Obama's immigration policies.

The decision -- which came in a criminal case against Honduran immigrant Elionardo Juarez-Escobar, who'd been deported before, returned to the United States and faced charges of unlawful re-entry after a drunk driving arrest -- was unexpected, and is unrelated to the legal challenge dozens of states have launched against Obama's move.

Prosecutors in the case argued that Obama's immigration policies were only meant to apply to civil proceedings, and don't have any impact on criminal proceedings like what Juarez-Escobar faced. Still, Schwab said in his 38-page ruling that Juarez-Escobar could have benefited under Obama's action to halt deportations for some undocumented immigrants.

Obama's action violates the Constitution's separation of powers and its "take care clause," Schwab said. He wrote that Obama's action "goes beyond prosecutorial discretion because: (a) it provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications, rather than case-by-case examination; and (b) it allows undocumented immigrants, who fall within these broad categories, to obtain substantive rights."...

Schwab said Juarez-Escobar didn't fall within any of the priority categories Obama identified for deportation, so it's not clear that removing him from the country would be a priority -- potentially blurring the lines between civil and criminal proceedings. The Justice Department blasted the opinion, with a spokesperson saying it was "unfounded and the court had no basis to issue such an order."

The full 38-page opinion in this case is available at this link, and there are a number of interesting passages beyond the Court's constitutional analysis.  Of particular note, Judge Schwab discusses at some length the Supreme Court's Padilla ruling and its emphasis on the connections between criminal convictions and deportation consequences. 

Unsurprisingly, this ruling has already become the subject of some notable commentary.  Here is some of the early commentary:

December 16, 2014 in Collateral consequences, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Defense moves to postpone federal marijuana sentencing based new law ordering DOJ not to prevent states from implementing medical marijuana laws

California Attorney Ronald Richards today sent me a copy of a fascinating emergency motion he filed this week that seeks a postponement of his client's scheduled federal marijuana sentencing today. Here are excerpts from the four-page memorandum in support of the motion (which can be downloaded below) which highlights why I find it fascinating:

Rarely in any counsel’s career has he or she had to file an emergency motion.  However, in the world of marijuana laws, the landscape keeps changing; this time, on a historic level. On Saturday night, the United States Senate voted to approve H.R. 83.  This is a 1696 page spending bill.  In the bill, section 538 forbids the use of money by the Department of Justice for interfering with State laws that allow cultivation of marijuana....

In this case, if the Department of Justice is mandated to not spend any money on interfering with lawful marijuana cultivations implementing state law, the raids, the seizures, and the federal prosecution will come to a halt in California.  In addition, if the scheduling is attacked by the litigation in the Eastern District and changed, there are just too many signals that the 77 years of marijuana prohibition may be coming to an end.  At least, there is not a direct policy mandate from Congress.  It is no different than a highway withholding funding to keep speeds under 80 MPH or at 55 MPH during the energy crisis....

If this bill is signed by the President, which all indications are that he will sign it or the government will shut down, it will become law and policy.  The Department of Justice could not in either the spirit or the letter of the law allocate any further staff, investigation, or budget to continue to prosecute this case.  Furthermore, all future prosecutions of legal California cultivators would cease to exist....

Based upon the historic passage by the House and the Senate of H.R. 83, the defendant requests a 90 day adjournment of his sentence.  If the bill becomes law, he will move to withdraw his plea or file a stipulation to that effect with the government.  It would be unfair for him to be burdened with a felony conviction and incarceration when in just two weeks, all the current cultivators in this State would enjoy the new found relief provided by the Congressional mandate.

Download Motion to postpone federal MJ sentencing in California

December 16, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Should problematic police be on a registry like sex offenders?

The provocative question in the title of this post is drawn from this provocative new commentary by Ed Krayewski at Reason titled "Time for a Police Offenders Registry." Here are excerpts:

There's a moral obligation to keep bad cops off the streets.  A job with a police department is not a right and shouldn't be treated like one. Police unions that push for permissive rules that end up protecting bad cops pose a serious public safety threat. Nevertheless, dismantling them where they've taken root is a difficult prospect even in the long-term. There are other ways to keep bad cops off the streets. The federal government, and state governments, ought to create and encourage the use of a police offender registry list.  Such a list would register individuals who while employed as law enforcement officers were found unfit for duty or faced serious disciplinary issues they may have resigned to avoid. Just as any other component of comprehensive police reform, this won't eliminate excessive police violence, but it's a start.

When actually identified, a surprising (or not) number of officers involved in controversial, high-profile use of force incidents have previously disciplinary history.  Officer Daniel Pantaleo, the New York City cop who put Eric Garner in a fatal chokehold, had been previously accused, at least twice, of racially-motivated misconduct, including strip searching a man in the middle of the street and allegedly hitting his testicles.  The police union in New York City is among the strongest in the country.  When a rookie cop shot Akai Gurley in apparent panic last month, he didn't think twice to reportedly contact his union rep first. A man lay dying in a stairwell for no other reason that he startled a rookie, and the fact that the officer called his union representative before calling for assistance isn't shocking enough to lead to the officer's termination.  Even if it were, it would still be impossible to terminate the officer immediately.  While all this is happening, the state of New York is on the verge of placing even more of the disciplinary regime that applies to cops under the purview of the police unions.

But not everywhere is the situation as hopeless as in New York City.  In other parts of the country, cops can get fired relatively more easily.  But it doesn't stop them from finding jobs elsewhere.  Richard Combs, who was the sheriff and only cop in Eutawville, South Carolina, is now facing a murder charge for shooting a resident after an argument at Town Hall, but Combs had been previously terminated from the county sheriff's office for unspecified "unsatisfactory performance."  In Cleveland, Ohio, the cop who shot 12-year-old Tamir Rice, mistaking the boy's toy gun for a real one, had been previously found too emotionally unstable and unfit to carry a firearm for law enforcement.  In Georgia, the cop who shot and killed 17-year-old Christopher Roupe after the teen opened the door to his home holding a Wii controller, had been previously fired for multiple disciplinary problems including shooting at an unarmed person....

This is just a sampling of stories that received enough local attention to gain some prominence.  The situation is unconscionable.  Police found unfit for duty in one jurisdiction shouldn't be employed in another.  Cops who resign to avoid disciplinary charges shouldn't slither their way into another department.  Cops who cost taxpayers millions in lawsuit settlements shouldn't be able to expose taxpayers in other places to the same risk....

State governments, and the federal government, can help.  Sex offender registries, which in some jurisdictions can lead to 19-year-olds who receive sexts from their 17-year-old friends being branded sexual predators for life, are an odious thing that makes a mockery of due process and the idea of the penal system as rehabilitation.  But for some of the same reasons they would work to police the privilege of employment in law enforcement. Constitutionally, the federal government could not mandate states use its police offender registry list or operate their own.  Yet because many of the most troublesome police departments (those in big cities and those in the sticks) also rely most on federal assistance in one way or another, the feds could induce compliance by tying it to such assistance.  The federal government has done this before, though usually to push states to impose certain laws on its residents, not to protect residents from abusive government employees. Such a list wouldn't be a comprehensive solution to excessive police violence, but it's an important part, one that could work to lower the number of bad cops operating on the streets and begin to rebuild trust between police and the communities they're supposed to serve. 

December 16, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (13) | TrackBack

Monday, December 15, 2014

Former Virginia Gov McDonnell facing significant (trial?) penalty in his federal guideline calculation

This recent article from the Washington Post, headlined "Early federal sentencing recommendation for McDonnell: At least 10 years in prison," spotlights the seemingly severe sentence recommended by the federal sentencing guidelines for a former Governor's corruption.  Among other notbale aspects of this high-profile sentencing story is the fact that former Virginia Gov Bob McDonnell is now facing a guideline sentencing range that is more than three to four times longer than the longest possible sentence he would have faced had he been willing to plead guilty on terms urged by federal prosecutors.  Here are the notable details at this stage of a developing high-profile sentencing story:

The guidelines recommended by the U.S. probation office are preliminary, and even if finalized, U.S. District Judge James R. Spencer is not required to follow them. But experts said that Spencer typically heeds the probation office’s advice, and judges in his district have imposed sentences within the recommendations more than 70 percent of the time in recent years. “It’s of critical importance,” said Scott Fredericksen, a white-collar criminal defense lawyer. “The fact is, the vast majority of times, courts follow those recommendations closely.”

The matter is far from settled. The probation office recommended a punishment from 10 years and a month to 12 years and 7 months. Calculating an appropriate range of sentences in the federal system is a complicated, mathematical process that takes into account a variety of factors, including the type of crime, the defendant’s role and the amount of loss. The judge has yet to see the arguments from each side.

McDonnell and his wife, Maureen, were convicted in September of lending the prestige of his office to Richmond businessman Jonnie R. Williams Sr. in exchange for $177,000 in loans, vacations and luxury items. McDonnell is scheduled to be sentenced Jan. 6. His wife’s sentencing is scheduled for Feb. 20, and her guideline range is expected to be lower than her husband’s. The probation office has not yet filed a report concerning her.

It is unclear how the probation office determined that the former governor’s crimes necessitate a minimum decade-long sentence. The initial report on the matter is sealed, and people familiar with its contents revealed only the recommended range to The Washington Post.

The range is particularly notable because last December, prosecutors offered to let McDonnell plead guilty to just one count of lying to a bank as part of an agreement that would have meant he could be sentenced to three years in prison at the most and probation at the least. Importantly, though, McDonnell would have been required to sign a statement acknowledging that he helped Star Scientific, Williams’s dietary-supplement company, at the same time the businessman was giving him loot, fully shouldering blame for a relationship he has insisted was not criminal and was driven largely by his wife....

White-collar criminal defense lawyer Matthew Kaiser said McDonnell’s range probably was increased because he was a high-ranking public official, because he took more than one payment from Williams and because the total value of the gifts he received was so high. Kaiser said the probation officer also probably faulted McDonnell because his testimony was contrary to the jury’s verdict.

Prosecutors and defense attorneys will still have an opportunity to argue to the probation officer about whether the range was correctly calculated — although Kaiser said the probation office often “sticks to its guns.” After that, both sides can try to persuade Spencer to modify the recommended range.

Even then, Spencer is not bound by the guideline. Defense attorneys have already begun working vigorously in their bid to sway him toward leniency. This week, they won a legal skirmish with prosecutors so they can file additional pages in their sentencing memorandum — a key document outlining the sentence they believe McDonnell should receive and why. It is unclear whether their efforts to move Spencer away from the probation office’s recommended range will be fruitful.

In the Eastern District of Virginia, where McDonnell is being sentenced, judges imposed sentences within the guideline range more than 70 percent of the time last fiscal year, according to data from the U.S. Sentencing Commission. In about 21 percent of cases, they imposed sentences below the guideline range without a request from prosecutors to do so. Nationally, judges imposed sentences within the guideline range about 51 percent of the time last fiscal year and deviated downward without a request from prosecutors to do so in about 19 percent of cases.

In the McDonnell case, prosecutors are not expected to ask for a sentence below the guideline range.... Brian Whisler, a defense lawyer who used to work as a federal prosecutor in

Richmond, said that Spencer is known to be “largely deferential to the probation office and its sentencing calculations.” Whisler — whose firm, Baker & McKenzie, represented state employees in the McDonnell case — said the judge will likely draw on other cases in the district to inform his conclusion.

The outcome of those might not be to McDonnell’s liking. In 2011, another federal judge in Richmond sentenced former Virginia delegate Phillip A. Hamilton to 9.5 years in prison in a bribery and extortion case. In 2009, a federal judge in Alexandria sentenced former congressman William J. Jefferson to 13 years in prison for accepting hundreds of thousands of dollars in bribes — though, notably, that fell well short of the recommended range of 27 to 33 years.

December 15, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (1) | TrackBack

Thursday, December 11, 2014

Repeat drunk-driver tells fishy story to explain erratic driving

Beer batterThis local story from Wisconsin tells a funny story about what (as regular readers know) I do not think is a very funny crime often committed again and again and again by certain violent career criminals.  The story is headlined "Man charged with 10th OWI; tells officer he'd eaten beer battered fish," and here are the details:

An Adams County man will be charged with his 10th OWI.  75-year-old John Przybyla was pulled over October 12. He was driving north on State Highway 13 in the Township of Dell Prairie.  Officers pulled him over because he crossed the center line and had a broken tail light.

The officer asked Przybyla if he had been drinking.  He said that he hadn't, and that he'd only eaten beer battered fish.

The officer conducted field sobriety tests and Przybyla's preliminary breath alcohol test was .062.  He can't have a PBT over .02 because of earlier convictions.

He faces an additional charge of driving with a revoked license after a 3rd OWI and three other traffic citations.  Przybyla was first convicted for an OWI in 1995.

The repeat offender's amusing excuse for his crime is, of course, what drew me to this story. But I also think it is significant and telling that a person can be a violent menace to innocent people on the roads over and over again and yet as a society we still general fail to impose serious sanctions likely to incapacitate this kind of violent career criminal.  But if someone is caught selling even a relatively small quantity of illegal drugs even a few times, our laws will frequently threaten or mandate very lengthy prison terms.

December 11, 2014 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (6) | TrackBack

Wednesday, December 10, 2014

Second Circuit panel finds evidence insufficient to support two major insider trading convictions

There is big news in the white-collar crime (and sentencing?) world this morning coming out of New York thanks to the Second Circuit's significant new opinion in US v. Newman, No. 13‐1837 (2d Cir. Dec. 10, 2014) (available here).  This New York Times article about the ruling helps spotlight why this is Newman ruling is a very a big deal:

A federal appeals court on Wednesday overturned two of the government’s signature insider trading convictions, a stunning blow to prosecutors and their campaign to root out illegal activity on Wall Street.

In a 28-­page decision that could rewrite the course of insider trading law, sharply curtailing its boundaries, the United States Court of Appeals for the Second Circuit in Manhattan tossed out the case against two former hedge fund traders, Todd Newman and Anthony Chiasson. Citing the trial judge’s “erroneous” instruction to jurors, the court not only overturned the convictions but threw out the cases altogether....

The unanimous decision – the first higher court rebuke of an insider trading case filed by Preet Bharara, the United States attorney in Manhattan – could portend a broader revisiting of Mr. Bharara’s insider trading crackdown. It will also offer a blueprint for traders to defend future insider trading cases, a development that is likely to unnerve prosecutors while delighting the defense bar.

Here are a few paragraphs from the start of the Newman opinion:

Defendants‐appellants Todd Newman and Anthony Chiasson appeal from judgments of conviction entered on May 9, 2013, and May 14, 2013, respectively in the United States District Court for the Southern District of New York (Richard J. Sullivan, J.) following a six‐week jury trial on charges of securities fraud....

The Government alleged that a cohort of analysts at various hedge funds and investment firms obtained material, nonpublic information from employees of publicly traded technology companies, shared it amongst each other, and subsequently passed this information to the portfolio managers at their respective companies.    The Government charged Newman, a portfolio manager at Diamondback Capital Management, LLC (“Diamondback”), and Chiasson, a portfolio manager at Level Global Investors, L.P. (“Level Global”), with willfully participating in this insider trading scheme by trading in securities based on the inside information illicitly obtained by this group of analysts.   On appeal, Newman and Chiasson challenge the sufficiency of the evidence as to several elements of the offense, and further argue that the district court erred in failing to instruct the jury that it must find that a tippee knew that the insider disclosed confidential information in exchange for a personal benefit.  

We agree that the jury instruction was erroneous because we conclude that, in order to sustain a conviction for insider trading, the Government must prove beyond a reasonable doubt that the tippee knew that an insider disclosed confidential information and that he did so in exchange for a personal benefit.  Moreover, we hold that the evidence was insufficient to sustain a guilty verdict against Newman and Chiasson for two reasons.    First, the Government’s evidence of any personal benefit received by the alleged insiders was insufficient to establish the tipper liability from which defendants’ purported tippee liability would derive.    Second, even assuming that the scant evidence offered on the issue of personal benefit was sufficient, which we conclude it was not, the Government presented no evidence that Newman and Chiasson knew that they were trading on information obtained from insiders in violation of those insiders’ fiduciary duties. 

 Accordingly, we reverse the convictions of Newman and Chiasson on all counts and remand with instructions to dismiss the indictment as it pertains to them with prejudice.

Though this Newman opinion does not discuss formally sentencing issue, I cannot help but think that modern white-collar sentencing realities might be playing a role (perhaps a significant role) in the review and ultimate rejection of insider-trading convictions here. Both defendants appealing in this case were sentenced to a significant number of years in prison, and appellate judges are surely aware of how high the stakes now are for white-collar defendants subject to novel and aggressive prosecutorial practices.

December 10, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (8) | TrackBack

Tuesday, December 09, 2014

Madoff aides finally getting sentenced for their roles in massive Ponzi scheme

As reported in this new AP article, a notable set of fraud sentences are being handed out this week and next in New York federal court.  Here are the early parts of a high-profile white-collar sentencing story:

The former secretary for imprisoned financier Bernard Madoff was sentenced Tuesday to six years in prison after she apologized to victims of the multi-decade, multi-billion dollar fraud and berated herself for failing to see past her boss's influence and the riches he bestowed on her.

Annette Bongiorno, 66, was sentenced in Manhattan by U.S. District Judge Laura Taylor Swain, who said she believed Bongiorno's testimony at trial that she was largely duped by Madoff into manufacturing fake trade results for his private investment business.  She called her "a pampered, compliant and grossly overcompensated clerical worker who supervised other clerical workers with a ferocious enthusiasm."

The judge said Bongiorno "could and should have recognized that Mr. Madoff's success seemed impossible because it was impossible." Swain added: "Ms. Bongiorno chose to put her life and the life of others in the wrong hands."

One of Madoff's computer programmers was awaiting an afternoon sentencing.  Bongiorno was convicted earlier this year along with four others after a six-month trial.  Sentencing proceedings resulting from it will conclude on Monday.

On Monday, Madoff's director of operations was sentenced to a decade in prison.

Prosecutors said in court papers that Bongiorno was "at the very heart of the fraud" for decades. They had sought a prison sentence of more than 20 years. The fraud cost thousands of investors nearly $20 billion. Madoff, 76, was arrested in December 2008 and is serving a 150-year prison sentence.

Before she was sentenced, Bongiorno portrayed herself as a loyal worker who was in over her head from the time she was hired at age 19. "Not once in my 40 years there did anyone say to me, 'Annette, this is not the way it's done in the real world,'" she said. "I thought I was doing my job as I thought it should be done."...

The judge, who also ordered forfeiture of $155 billion, said she will recommend that Bongiorno serve the last year of her prison term in home confinement.

December 9, 2014 in Booker in district courts, Celebrity sentencings, Offense Characteristics, White-collar sentencing | Permalink | Comments (1) | TrackBack

Sunday, December 07, 2014

Former basketball star taking (wild?) shot at fighting loss calculation in federal fraud sentencing

TateThis notable article from Connecticut reports that a notable fraud defendant is going to be representing himself as he agrues against how loss is being calculated and used against him in his upcoming federal sentencing.  Here are some of the interesting details:

Ever since being convicted on four felony counts in a real estate scheme, former University of Connecticut basketball star Tate George has been complaining about his legal representation.  He criticized his trial attorney, saying he didn't listen to requests for calling witnesses and other strategies.

After dropping his first attorney, George briefly switched to another, who is also out of the picture.  Now George has received permission from a federal judge to represent himself at his sentencing.

A first-round NBA draft pick, George has more basketball experience than legal experience.  He is best known for hitting "The Shot" at the Meadowlands arena in New Jersey in the final second to defeat Clemson in the NCAA playoffs in 1990, one of the most stunning victories in UConn basketball history.

Before his request was granted this week, federal prosecutors warned George in court papers about "the dangers and perils of self-representation."  They quoted the saying that "he who represents himself has a fool for a client."  Prosecutors told George, "There are many complex rules in court, and that most non-lawyers, including yourself, cannot know all of these rules."

But George, 46, has gone his own way before.  After expressing dissatisfaction with his trial attorney, George began sending letters directly from his prison cell to the federal judge instead of sending them through his attorney.  In at least five letters to U.S. District Court Judge Mary L. Cooper in Trenton, George proclaimed his innocence.

"I understand that my life has no value to all those who have gone about defaming my name, but I beg to differ and will continue to fight to prove my innocence," George wrote to the judge.  "Again, for the record, even though the government refuses to want to hear or admit to the truth above their lies to make me look guilty, there are no losses to report at this time, which means there is no crime or victims.  PERIOD! AS I HAVE SAID, BUT NO ONE SEEMS TO BE LISTENING, THERE ARE MONIES OWED YES, BUT NOT LOSSED!"

As part of his legal strategy, George is saying that the $250,000 investment by former UConn basketball star and NBA player Charlie Villanueva that was never repaid should not be counted as a financial loss.  Since he has promised to repay Villaneuva, George says there is no victim and no loss....  

George has said he was upset that his attorney, David E. Schafer, a federal public defender, said that investors in his case had lost $833,000 when George maintained that the actual loss was zero.  Federal prosecutors say the investors lost more than $2.5 million. At one point, a prosecutor described George as a "baby Madoff," referring to the massive Ponzi scheme operated by now-imprisoned New York City financier Bernie Madoff in which investors lost billions of dollars in a long-running scheme.

George was convicted in September 2013 and could face as many as nine years in prison when he is sentenced. Although he was convicted more than a year ago, his sentencing has been postponed multiple times.

December 7, 2014 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, December 02, 2014

SCOTUS hears argument on application of mandatory minimum sentencing provision in Whitfield

The Supreme Court has another notable criminal justice case on tap for oral argument this morning, and this effective SCOTUSblog preview, titled "Parsing “accompany” in the federal bank robbery statute," provides all the details and context.  Here is how the preview starts and ends: 

One part of the federal bank robbery statute, 18 U.S.C. § 2113(e), provides that a bank robber who “forces another person to accompany him” will receive a minimum sentence of ten years in prison, with a life sentence as a maximum.  [Tuesday December 2] the Court will hear oral arguments on how broadly this provision should apply — and in particular, whether it should apply to a North Carolina man who, while attempting to elude capture after a failed bank robbery, required the elderly woman in whose home he was hiding to move with him from one part of her home to another.  [This] hearing could also tell us whether the Justices regard this case as a run-of-the-mill statutory interpretation case or instead — like last month’s Yates v. United States and last Term’s Bond v. United States  — as the latest in a series of criminal cases in which overzealous federal prosecutors have overstepped their authority....

At last month’s argument in Yates, Justice Samuel Alito — who is normally the government’s most reliable ally in criminal cases — suggested to the lawyer arguing on behalf of the United States that, although the federal government had a variety of good arguments, it was nonetheless asking the Justices to endorse too expansive an interpretation of a federal law targeting the destruction of evidence.  Whitfield and his lawyers no doubt hope that the Justices will be equally dubious of the government’s interpretation in this case.  On the other hand, although Whitfield ultimately proved to be a bumbling bank robber, his conduct was unquestionably far more grave than John Yates’s destruction of some undersized fish: even if he only intended to hide from police after the failed bank robbery and never meant to harm [his elderly victim], she did die.  And that may be enough to make several of the Justices less skeptical, and significantly more serious, at Tuesday’s oral argument.

UPDATE: Via SCOTUSblog, I see that the transcript in Whitfield v. United States is now avaiable here

December 2, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Monday, November 24, 2014

USSC Chair's discussion of "A Generational Shift for Drug Sentences" now in print

I noticed via the US Sentencing Commission's official website that Chief Judge Patti Saris, Chair of United States Sentencing Commission and federal district judge, has now in print this law review article titled “A Generational Shift For Drug Sentences.” The article is based on a like-titled speech given by Judge Saris noted here earlier this year, and here is a snippet from the article's introduction:

It has been a generation since the laws governing federal drug sentences were put into place. Since the 1980s, our society, our attitudes, and our criminal justice system have evolved.  The Supreme Court case law, the statutes and United States Sentencing Guidelines (“Guidelines”), and the realities on the ground have changed significantly. With the benefit of experience and new thought, many are considering whether a change — a generational shift — in our approach to federal drug sentences is appropriate....

This article focuses on policies regarding drug offenders and drug penalties as one means to effect change in the federal prison populations and costs.  Drug offenders make up about a third of the offenders sentenced federally every year and a majority of the prisoners serving in the federal Bureau of Prisons, so they are in many ways the key to the size and nature of the federal prison population.  This article has four parts: Part I explores the history of the current mandatory minimum drug penalties, the Sentencing Commission, and the federal drug sentencing guidelines; Part II examines criminal justice system shifts over the past thirty years; Part III identifies what changes can be made by Congress and elsewhere to address the burgeoning federal prison population; and Part IV explains the Commission’s significant amendments in 2014 to reduce drug guideline sentences.

November 24, 2014 in Drug Offense Sentencing, Offense Characteristics, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, November 23, 2014

Reviewing the potential and pitfalls in a notable problem-solving court in NYC

Today's New York Times has this terrific lengthy account of the work of a unique "problem-solving court" in New York.  The piece is headlined "In a Queens Court, Women in Prostitution Cases Are Seen as Victims," and here are small excerpts from an article that merits a read in full:

The Human Trafficking Intervention Court in Queens, which is marking its 10th anniversary next month, ... serves as a model for a statewide 11-court program that began last year. The intention is to change the legal conversation around the multibillion-dollar sex trade by redefining the women in it as victims instead of criminals. Most are offered a deal: Take part in a set number of counseling sessions, usually five or six, and the charges will be dismissed and the record sealed.

After 13 months, the five New York City courts are still a work in progress, their success tracked more in individual stories than statistics. “This court is not devised to solve the problems of trafficking,” Judge Serita said of the program, “but to address one of the unfortunate byproducts, which is the arrest of these defendants on prostitution charges.”

All defendants in the specialized courts are presumed to be victims at risk, the first of many assumptions made, in part, because of the silence surrounding sex trafficking. That silence also makes it tougher to shift social mores. Not only do the police and the justice system still treat prostitution as a crime, but the women themselves, most undocumented, often don’t define themselves as having been trafficked — whether out of fear, shame or choice....

At no point in the proceedings does the judge, the prosecutor or the defense lawyer ask if the defendants have been trafficked; nor is there a quid pro quo to give up a trafficker. It is rare, but the hope is that the women, perhaps after working with counselors, will feel comfortable describing the conditions that led them to prostitution....

On Fridays, Judge Serita usually hears more than 40 cases in three hours. “How are you today?” she asks each of the women, inquiring whether they take English classes and praising their progress. Several defendants said they noticed less that she was an Asian woman and more that she had a warm demeanor. On other days, she presides over the drug treatment and mental health courts in Queens.

The trafficking court, she acknowledged, is a Catch-22: For people to feel less like criminals, they must first go through the criminal justice system. Leigh Latimer, the Legal Aid Society lawyer assigned to Judge Serita’s court, agreed. “There is a somewhat more recent view that clients are potentially victims, but we’re still arresting them at a very rapid pace,” she said. “We’re trying to solve their problems through being arrested, which is not an affirming process.”...

On several Fridays, nearly a dozen women said during interviews in Mandarin that they did not feel like trafficking victims, but victims of the police. The women all spoke on the condition of anonymity because their cases were still pending. “My name has been tarnished,” said one woman, who was upset that her case was “lumped with all those others.” She denied performing a sex act, but the police report contradicted that, Ms. Affronti said.

Another woman explained that she was arrested at 4 a.m. on her sixth day of work. She and her sister, who quit after the second day because she sensed “something was not right,” owed more than $80,000 to friends and family members who raised the money for them to come to the United States from Fuzhou. That type of pressure to pay back smuggling agents — often with interest as high as 12 percent — is considered “debt bondage.” It is a more subtle condition of human trafficking, but is pervasive in New York’s Asian communities, lawyers say.

November 23, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, November 20, 2014

"Overcriminalization: Administrative Regulation, Prosecutorial Discretion, and the Rule of Law"

The title of this post is the title of this notable new paper by Ronald Cass now available on SSRN.  Here is the abstract:

Recently, both practical and doctrinal changes have significantly reduced the degree to which criminal punishment fits rule-of-law ideals.  Although far from the only cause, the expansion of criminal sanctions as a by-product of an extraordinary explosion in administrative rulemaking that is backed by criminal liability has helped propel this change.  While there are reasons to support criminal enforcement of administrative decision-making, the ways in which administrative rules are adopted, applied, and enforced and the scale of governmental law-making (including administrative rule-making) that has provided the grounds for potential criminal penalties have produced a massive increase in government power that risks serious erosion of individual liberty.

This change cries out for immediate attention ― and for changes to the law.  This article explores differences between criminal law and administrative law, and between statutory and administrative rule generation and application, explaining how differences between administrative law and criminal law play out (problematically) with respect to much criminal enforcement of administrative rules.

November 20, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Wednesday, November 12, 2014

Federal judge wonders if marijuana sentencing should be impacted by state reforms

As reported in this Oregonian article, a "federal judge in Portland last week delayed the sentencing of a convicted bulk marijuana runner from Texas, saying he needed to get a better read on the U.S. Department of Justice's position on the drug before imposing a sentence." Here are more details:

U.S. District Judge Michael W. Mosman, presiding on Thursday in the case of U.S. v. Bounlith "Bong" Bouasykeo, asked lawyers if the vote in Oregon and a similar vote in Washington, D.C., signal "a shift in the attitude of people generally towards marijuana."

"I guess I'm curious whether I ought to slow this down a little bit," he asked lawyers, according to a transcript of the hearing obtained by The Oregonian. Under federal law, marijuana in any form or amount remains illegal.

Mosman wondered aloud if there was any move afoot to take a different position on marijuana enforcement in Oregon. This was not to suggest – he hastened to add – that he agreed on marijuana legalization. The judge wondered whether his position on sentencing ought to move a notch in the defendant's favor because of the nation's evolving view of pot.

"I'm not suggesting that what's on the table is that the whole case ought to go away or anything like that," the judge said. "But would something like that at the margins have some sort of impact on my sentencing considerations? I think I ought to take into account any evolving or shifting views of the executive branch in determining the seriousness of the crime?

"Should I delay this, in your view, or go ahead today (with sentencing)?" After hearing arguments from the lawyers, Mosman decided to delay Bouasykeo's punishment.

November 12, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, November 10, 2014

Huzzah, Huzzah... all crime goes down again in 2013 according to new FBI data

As reported in this official press release, the "estimated number of violent crimes in the nation decreased 4.4 percent in 2013 when compared with 2012 data, according to FBI figures released today." What great news, and here is more:

Property crimes decreased 4.1 percent, marking the 11th straight year the collective estimates for these offenses declined.

The 2013 statistics show the estimated rate of violent crime was 367.9 offenses per 100,000 inhabitants, and the property crime rate was 2,730.7 offenses per 100,000 inhabitants.  The violent crime rate declined 5.1 percent compared to the 2012 rate, while the property crime rate declined 4.8 percent.

I will have a lot more to say about these data later today, but for now I just want to celebrate the latest great news on crime rates.

November 10, 2014 in National and State Crime Data, Offense Characteristics | Permalink | Comments (0) | TrackBack

Friday, November 07, 2014

Guest SCOTUS argument analysis: "Fish are apparently funny . . . and other quick thoughts on Yates"

Professor Todd Haugh was kind enough to send along for posting here this analysis of one of the notable federal criminal justice cases just heard by the Supreme Court:

The Supreme Court heard argument this week in Yates v. United States, the oddball case requiring the Court to determine whether the “anti-shredding” provision of the Sarbanes-Oxley Act applies to a fisherman who threw a crate of undersized grouper overboard after he was ordered not to by a federal agent.  The precise issue was whether the fisherman, John Yates, had adequate notice that 18 U.S.C. § 1519’s “tangible object” provision covered fish along with financial records, which were the focus of SOX following the Enron and Arthur Anderson document-shredding scandal. Although there have been a number of comprehensive posts about the statutory interpretation aspects of the case, see here and here, I wanted to offer my quick reaction to the argument, which I attended.

Fish are funny.  First of all, although this may be trivial for hardcore criminal law and sentencing buffs, this was one of the most jovial arguments I have seen, riotous even.  The argument was interrupted numerous times by the gallery’s laughter — 15 times according to the transcript — which was prompted by both the litigants and the Justices.  And this wasn’t all the Scalia show.  Justices Kagan, Sotomayor, and Breyer all offered quips that gave the audience quite a show.

But overcriminalization is not.  Part of the reason everyone was in a joking mood was the inherent absurdity of the underlying prosecution.  Although Roman Martinez, the Assistant SG, tried to convey that Yates had not just tossed away a few fish, but had directly disobeyed a federal agent and then enlisted his crew to lie about it, the Justices weren’t buying it.  At one point, Chief Justice Roberts interrupted Martinez, saying, “You make him [Yates] sound like a mob boss or something.”  (Again, to great laughter.)  In between the laughs, however, the Court conveyed a serious concern over the sweep of § 1519 and the government’s exercise of discretion.  Justices Breyer and Alito, in particular, posed squirm-inducing hypotheticals to Martinez demonstrating that the only thing stopping this provision from criminalizing obviously trivial conduct is the U.S. Attorney’s Office. Martinez’s admission, solicited from Justice Ginsburg, that the U.S. Attorney’s Manual instructs prosecutors to bring the most severe charge available did not help the government’s cause.  Justice Scalia, who had previously asked what kind of “mad prosecutor” brought the case and questioned whether it was the “same guy . . . that brought the prosecution in Bond last term,” said that if the government’s policy was to always prosecute so severely, the Court was “going to be much more careful about how extensive statutes are” and how much “coverage” to give them.

And neither is severe sentencing.  Much of this was driven by the sentencing risk Yates faced — twenty years for destroying evidence of a civil infraction.  A number of Justices questioned why Congress needed to enact another obstruction provision with a 20-year max when there were others available.  The government tried to back its way out of the inquiry by explaining that the prosecutor had recommended a Guideline sentence of 21 to 27 months and Yates only got 30 days in jail, but Chief Justice Roberts highlighted that the issue was not the actual sentence received but the “extraordinary leverage that the broadest interpretation of this statute would give Federal prosecutors.”  He specifically mentioned prosecutors using the risk of severe sentencing to force pleas, and Justice Scalia’s questions suggests he was troubled by the same thing.  

Overcriminalization exacts real hams.  I’m by no means a statutory interpretation wonk, so my interest in Yates is focused on how the case tees up the issue of overcriminalization (particularly in the white collar context).  Overcriminalization exacts harms by making prosecutors lawmakers and adjudicators of the criminal code, which invariably leads to arbitrary enforcement.  This is what so many of the Justices were reacting to during the argument.  But overcriminalization’s real harm, which flows from that arbitrary enforcement, is that it lessens the legitimacy of the criminal law.  The absurdity of the Yates prosecution, while making for a lively and fun argument, demonstrated the point. It’s fine to laugh, but when that laughter is directed at our criminal justice system, that’s a serious matter. The question is whether the Court will take this opportunity to provide a serious response.

Predicting a winner. Using the method of tallying questions to the litigants during argument as a way to predict the outcome — the party receiving the most questions from the Justices during oral argument is more likely to lose (see here for a discussion of the methodology) — I’ll go ahead and predict a winner.  According to my notes, Yates’ attorney received approximately 29 questions (I say approximately because it’s hard to know how to count Justice Breyer’s three-part hypotheticals) to the government’s 36, which suggests Yates will prevail.  The tone of the questions certainly point to the same conclusion, and it’s consistent with how other’s saw the argument — see here.

November 7, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (19) | TrackBack

Thursday, November 06, 2014

Impact of California's Prop 47 already being felt ... by defense attorneys and police

This local article from California, headlined "Scramble to implement Prop 47 begins," spotlight the impact already being felt by the passage of the biggest criminal justice reform initiative of Election 2014.  Here are the (already remarkable) basics:

Just hours after the last ballot returns were counted, the phone lines of defense attorneys across the state began to light up Wednesday morning with calls from inmates.

With the passage of Proposition 47, simple drug possession and property crimes valued under $950 are now misdemeanors, effective immediately. Punishment means, at the worst, up to a year in jail, no longer prison. It also means up to 10,000 inmates serving time for those crimes can begin to apply for shortened sentences, a process many were eager to get started.

“This morning at 8 a.m., we took 10 attorneys and put them on the phones,” said Randy Mize, a chief deputy at the Public Defender’s Office. “They were taking 200 calls an hour from inmates in county jail. These are people asking us to file petitions on their behalf.”

The scramble to put the new law into practice was starting to touch all corners of the criminal justice system Wednesday, from the City Attorney’s Office, which will have to handle 3,000 extra cases a year, to police officers who will have new protocols to follow for certain arrests.

At Juvenile Hall Wednesday morning, six kids were released because they had felony charges that are now classified as misdemeanors under Proposition 47, and legally minors can’t be detained longer than an adult would, authorities said. “I think the roll out today started fairly smoothly,” Mize said. He attributed much of that to the fact that criminal justice leaders from around the county — including prosecutors, public defenders, the sheriff and probation officers — have been meeting for the past month to prepare for this day....

The law is intended to ease prison overcrowding, and put most of the estimated $200 million saved in prison costs annually into drug and mental health treatment programs to staunch recidivism. The majority of law enforcement officials around the state and the county are skeptical it will have the desired effect, and fear less time behind bars will only contribute to the revolving door of the criminal justice system. But, officials say, they will do their best to make it work. “It’s still a work in progress,” Sheriff Bill Gore said Wednesday. “Our primary concern is clearly the public’s safety.”...

Law enforcement officers were reminded of the new law in police lineups around the county. As of Wednesday, six crimes that used to be felonies are now misdemeanors: drug possession for personal use, as well as five property crimes valued below $950, theft, writing bad checks, forgery, shoplifting and receiving stolen property.

One of the biggest differences when arresting someone on a misdemeanor, rather than a felony, is that the crime must have occurred in the officer’s presence, or be witnessed by a citizen willing to sign an affidavit saying so. Several training memos have been distributed in the past few weeks to prepare deputies on such arrests, Gore said....

The Public Defender’s Office has already identified about 200 state prisoners and 1,800 other offenders either in jail or under the supervision of probation who might be eligible to be resentenced under Proposition 47. The first set of petitions are expected to be filed within the next day or so, with priority given to those in custody. Once the application is filed in court, the District Attorney’s Office will review it to make sure the person is eligible, then a judge will OK it and hand down a new, shorter sentence. The process could be as quick as a few weeks for the first group of offenders, said Mize, with public defender’s office.

“There will be a few cases that the DA thinks should be excluded, and we don’t, and those will be litigated,” Mize said. There may also be a few offenders that prosecutors think are too dangerous to be released, and those cases will be argued. Inmates who can’t be resentenced are those who have prior convictions such as murder, attempted murder and violent sex crimes.

The public defender’s office has also identified nearly 200,000 other people who have been convicted since 1990 — that’s as far back as its database goes — of the crimes reclassified under Proposition 47. They can now apply to have their records show misdemeanor rather than felony convictions. Statewide, that could apply to millions of people. Said Mize, “It will certainly take a lot more work in the short term.”


Prior related posts on California's Prop 47:

November 6, 2014 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Based on questions asked at SCOTUS oral argument, wins predicted for federal defendants in Johnson and Yates

As discussed in prior posts here and here, yestderay the Supreme Court heard oral argumentsin two notable federal criminal justices cases,  Yates v. United States and Johnson v. United States.  I am hoping soon to find the time to read the full arguments transcripts in both cases (which are available here and here).  Fortunately, thanks to my old pal Professor Ed Lee and this post at ISCOTUSnow, I do not have to read the transcripts in order to have an informed guess as to who will prevail.  Here is why:

I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose....

Yates v. United States asks whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519—which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation—where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.

This is a close call. The Court was very active in questioning both sides. By my count, the Petitioner (Yates) received 49 questions and the Respondent (Solicitor General) 54 questions, which militates slightly in favor of the Petitioner.

But, if you break down the questions asked by Justice, the picture gets more complicated. Four Justices (Kennedy, Ginsburg, Sotomayor, and Kagan) asked the Respondent fewer questions, while only three Justices (Roberts, Scalia, and Breyer) asked the Petitioner fewer questions. Justice Alito asked both sides an equal number of questions (3). Justice Thomas asked no questions.

My confidence level is not high in predicting the winner. It appears to be a very close case. The total number of questions slightly favors the Petitioner, while the questions per Justice slightly favors the Respondent. If I had to choose, I would give a slight nod to the Respondent (Solicitor General) based on the higher number of Justices (4) who asked the Respondent fewer questions.

The second case, Johnson v. United States, asks whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.

This case is easier to predict, even though the total question count per side was closer. The Court asked almost the same number of questions to each side: 36 to the Petitioner (Johnson) and 37 to the Respondent (Solicitor General). The questions asked by each Justice tells a different picture. Four Justices (Roberts, Ginsberg, Breyer, and Kagan) asked the Petitioner fewer questions. Only two Justices (Scalia and Alito) asked the Respondent fewer questions. Justice Sotomayor asked the same number of questions (5) to each side, while Justices Kennedy and Thomas asked no questions. Another noteworthy point: Justice Alito, in fact, asked 17 questions to the Petitioner — a high number of questions that is somewhat unusual for a Justice to ask one side during oral argument. Justice Alito’s questioning might have inflated the Petitioner’s total question count, in other words. Accordingly, I predict a win for the Petitioner (Johnson), who argued that mere possession of a short-barreled shotgun is not a violent felony under the ACCA.

Previous related posts:

November 6, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, November 05, 2014

"Fish, Shotguns and Judicial Activism"

Images (3)The title of this post is the title of this terrific new Bloomberg commentary by Noah Feldman spotlighting some connected issues in the two big federal criminal justice cases being heard today by the US Supreme Court. Here are extended excerpts that explain why jurisprudes, and not just criminal justice fans, ought to be watching these cases closely:

Is a fish a tangible object? Does a sawed-off shotgun pose serious risk of injury? Laugh if you must, but the U.S. Supreme Court is taking up these questions in a pair of cases that will form another chapter in the saga of our vastly expanding federal criminal law. Funny as the cases may seem -- both funny strange and funny ha-ha -- they illustrate how policy and law constantly interact for a court deeply divided about the nature of statutory interpretation.

The fish case, Yates v. United States, involves a Florida fishing boat that was boarded and found to have 72 undersized grouper aboard. Ordered to bring the fish back to port where they would be used as evidence, the skipper, John Yates, instead threw them overboard and tried to substitute fish that were over the legal size requirement.

The criminal nature of the act seems intuitive. The part that has reached the Supreme Court on appeal stems from Yates’s conviction under a provision of the Sarbanes-Oxley Act that punishes anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object.” The government says that Yates destroyed a tangible object, namely the fish. Yates says the law, passed after the Enron scandal, is intended to prohibit shredding documents, not throwing fish into the sea....

Aristotle, followed by today’s purpose-driven interpreters such as Justice Stephen Breyer, believed the solution is to interpret the law as its authors would have intended had they only thought of the future case. Others, such as Justice Antonin Scalia, reject the idea that the judge should do anything but apply the law as it is written. Ordinarily, you could expect the case to come down to this division, and to come out 5-4, depending on what Justice Anthony Kennedy thinks of it.

In Yates’s case, things are more complicated. Breyer may well reason that the underlying purpose of the statute is not to protect documents from destruction but to protect evidence in federal cases from being destroyed by defendants. If so, he would uphold Yates’s conviction insofar as Yates was clearly trying to get away with a crime by getting rid of the evidence.

For his part, Scalia may find himself affected by a special principle that he applies only in criminal cases: the “rule of lenity,” according to which an ambiguous statute should be interpreted in favor of the criminal defendant. If Scalia were to follow this principle, he might overturn the conviction.

Of course, whether to apply the rule of lenity depends on whether you think the law is ambiguous. The government says it isn’t: You can hold a fish, so it’s a tangible object. If Scalia thinks the ambiguity -- if any -- derives from context, not language, then according to his own jurisprudence, he shouldn’t apply the rule of lenity, and should uphold the conviction.

The shotgun case, Johnson v. United States, is no less challenging -- and no less odd. Samuel James Johnson, founder of something called the Aryan Liberation Movement, was arrested after he made the mistake of telling an undercover federal agent about his plans for attacking various non-Aryan targets. He was in possession of weapons including an AK-47 -- and that possession was a felony that would ordinarily have gotten him roughly 10 years in prison. But Johnson had three prior convictions. And under the federal Armed Career Criminal Act, a fourth conviction for a violent felony carries a minimum of 15 years.

The law defines “violent felony” to include a range of obvious crimes -- plus any “conduct that presents a serious potential risk of physical injury to another.” One of Johnson’s prior state convictions was for possession of a short-barreled shotgun. Did owning the illegal shotgun pose a serious potential risk?

You won’t be surprised to hear what the gun lobby thinks about that in its friend of the court briefs -- but that’s not really the important point here. The crucial question is, what’s the meaning of the so-called residual clause of the repeat offender law? How should the courts define what counts as a serious risk of potential injury?

The Supreme Court has been answering that question on a case by case basis -- a practice disliked by, you guessed it, Justice Scalia. He thinks the law is unconstitutionally vague, because it doesn’t provide defendants sufficient notice or the courts adequate guidance. It’s easy to see why the law worries Scalia. He wants the courts to follow the law’s literal meaning, not its policy aims -- but it’s almost impossible not to inject policy when the law tells you to evaluate “serious potential risk of physical injury.”

The purpose-oriented justices look at the interpretive issue and see business as usual. To them, the courts must always consider policy and purpose, whether the subject is tangible fish or injurious firearms.

Who’s right is a deep question of jurisprudence. But as a practical matter, the cases show that Scalia’s approach, devoted to opposing judicial activism, won’t work when Congress actively wants the judiciary to make the law up as it goes along. If Scalia wants to avoid relying on his own judgment, he has to strike down the law as unconstitutional. And that isn’t judicial restraint. It’s activism. 

Some previous related posts:

November 5, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

California sentencing reform initiative Prop 47 wins big getting almost 60% support

As repoted in this Huffinton Post piece, "California approved a major shift against mass incarceration on Tuesday in a vote that could lead to the release of thousands of state prisoners."  Here are the basics from a piece headlined "California Voters Deal Blow To Prisons, Drug War":

Nonviolent felonies like shoplifting and drug possession will be downgraded to misdemeanors under the ballot measure, Proposition 47.  As many as 10,000 people could be eligible for early release from state prisons, and it's expected that courts will annually dispense around 40,000 fewer felony convictions.

The state Legislative Analyst's Office estimates that the new measure will save hundreds of millions of dollars on prisons.  That money is to be redirected to education, mental health and addiction services -- a novel approach that reformers hope will serve as a model in the larger push against mass incarceration.

This official webpage with California ballot measure voting results reports that Prop 47 received 58.5% of votes in support. This big margin of victory strikes me as big news that can and should further propel the political narrative that, at least in some places, significant numbers of voters are significantly interested in significant sentencing reform.

November 5, 2014 in Drug Offense Sentencing, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, November 04, 2014

Terrific SCOTUSblog previews of this week's SCOTUS arguments in Johnson and Yates

In this post this morning, I noted that the Supreme Court is finally due to get back around to working on important criminal justice issues with oral arguments scheduled in  Yates v. United States, No. 13-7451 and in Johnson v. United States, No. 13-7120.  I now see that the always great SCOTUSblog now has up these two new posts providing detailed argument previews:

In addition, as religious blog readers may remember, another view of the ACCA issues in Johnson was covered in this space a few weeks ago via this SCOTUS preview guest-post by Professor Stephen Rushin titled "Measuring the Dangerousness of Felonies for Sentencing Purposes."

November 4, 2014 in Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

SCOTUS hears argument in two notable federal criminal justice cases this week

Though today, Election Day 2014, is a big day for citizens to consider who gets to be in charge of making federal laws in Congress, tomorrow is a big day for SCOTUS Justices to consider the reach of some of those laws.  Via SCOTUSblog, here are the basics of the two federal criminal justice cases being hear in the Supreme Court on Wednesday:

 Yates v. United States, No. 13-7451

Issue Whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation, where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.

Johnson v. United States, No. 13-7120

Issue:  Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.

November 4, 2014 in Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Sunday, November 02, 2014

"Crashing the Misdemeanor System"

The title of this post is the title of this intriguing article by Jenny Roberts recently posted on SSRN. Here is the abstract:

With “minor crimes” making up more than 75% of state criminal caseloads, the United States faces a misdemeanor crisis.  Although mass incarceration continues to plague the nation, the current criminal justice system is faltering under the weight of misdemeanor processing. 

Operating under the “broken windows theory,” which claims that public order law enforcement prevents more serious crime, the police send many petty offenses to criminal court.  This is so even though the original authors of the theory noted that “[o]rdinarily, no judge or jury ever sees the persons caught up in a dispute over the appropriate level of neighborhood order” and that “a judge may not be any wiser or more effective than a police officer.”  Prosecutors have largely failed to exercise discretion in misdemeanor cases, instead churning them through the already overburdened courts.  Judges too have been complicit, failing to dismiss weak cases and to intervene when defenders represent their clients ineffectively.  As a result, many cases end in a quick guilty plea with little or no jail time.  The “broken windows theory” suggests that everyone benefits from such efficiency.

Yet the effect of misdemeanor convictions is anything but minor.  A quick guilty plea appears advantageous for a disorderly conduct misdemeanor in exchange for the night already served in jail.  But this conviction can, and does, lead to eviction from public housing.  It can, and does, pose a bar to showing “good moral conduct” for citizenship.  And it can, and does, make it difficult to find work in an era when employers routinely run criminal background checks.  The many harsh collateral consequences of even a “minor” misdemeanor conviction create serious barriers to the most basic aspects of life.  Mass misdemeanor processing thus harms the individual, his family, his community, and society.

Refusing to process individuals quickly would impose some of the real costs of mass misdemeanor processing on the justice system itself.  Such a “crash” of the criminal justice system would not be dramatic.  Instead, if defense counsel litigated some of the many factual and legal issues that misdemeanors present, the system would grind to a halt under its own weight.  The representation would be nothing more than Gideon and its progeny require, but would shift the burden for mass misdemeanor processing to the prosecution and the courts from misdemeanor defendants. Under this weight, legislators might reduce the short- and long-term costs of mass misdemeanor policing.  Prosecutors might exercise greater discretion, and police officers might maintain order without needless arrests.

Part I explores the idea of crashing the system as a potential response to the misdemeanor crisis.  Part II describes the potential role for defense counsel in such an institutional response.  Part III outlines specific strategies that specialized defender practice groups might pursue to crash the system.  Part IV explores arguments for and against efforts to crash the existing misdemeanor system.

November 2, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, October 28, 2014

Back from dead, fugitive fraudster gets 30 years in federal pen

As reported in this AP piece, a "former Georgia investment adviser was sentenced to 30 years in prison Tuesday for committing fraud that fueled a bank's collapse, cost investors millions of dollars and turned the accused banker into a fugitive who was ultimately — and mistakenly — declared dead." Here is more on this notable white-collar case:

Aubrey Lee Price, 48, returned to U.S. District Court for sentencing after he pleaded guilty in June to bank, wire and securities fraud. Price lost much of the $40 million he raised from about 115 clients at his private investment firm.  Prosecutors say he also misspent, embezzled and lost $21 million belonging to the Montgomery Bank & Trust in rural southeast Georgia, where Price served as bank director.

Price vanished in June 2012, a few weeks before the bank closed with its assets and reserves depleted, and he left rambling letters saying he planned to jump off a ferryboat.  In December 2013, a year after a Florida judge declared him dead at his wife's request, Price was captured in a routine traffic stop near Brunswick on the Georgia coast.

Price cut a plea deal with prosecutors that called for a maximum of 30 years in prison and in exchange for his guilty pleas to three fraud counts.  Price also agreed to pay tens of millions in restitution for bank and investor money that he lost, despite having convinced the court to appoint him a lawyer because he had no money to hire one.

Price gave rambling speech in front of the judge in which he acknowledged responsibility but also blamed other managers at the bank for its collapse.  Still, he pledged to help recoup money, and officials say he is cooperating with their efforts to collect restitution.  "These clients that are here today, and those who are not here, it's important for them to understand I'm trying my best to help them get their money back," Price said in court....

At his plea hearing June 5, Price told the judge he lied to clients and gave them phony financial statements to cover his tracks as he lost their money in speculative trading and other high-risk investments.  He said his flight from the financial mess left him depressed.  He said he tried smoking marijuana and methamphetamine and had tasted cocaine, but mostly self-medicated with the prescription amphetamine Adderall. Price said he also adopted at least five aliases, including Jason Rollins and Javier Martinez....

The plea agreement settled federal charges pending against Price in Georgia and New York.  Prosecutors agreed to drop 16 related bank fraud counts in Georgia plus charges in Miami related to the Coast Guard's search for Price.

October 28, 2014 in Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (3) | TrackBack

Saturday, October 25, 2014

Due to Alleyne, Kansas Supreme Court requires resentencing of murderer of abortion provider

As reported in this local article, headlined "Kansas Supreme Court vacates Roeder's 'Hard 50' sentence," the top court in the Sunflower State reversed a state mandatory minimum sentence in a high-profile murder case.  Here are the details:

The Kansas Supreme Court on Friday upheld the premeditated first-degree murder conviction of Scott Roeder, convicted in the 2009 church killing of Wichita abortion provider Dr. George Tiller, but vacated his “Hard 50” life sentence.

In ordering Roeder’s sentence remanded to the Sedgwick County District Court, the Kansas high court noted the 2013 U.S. Supreme Court decision that deemed a sentence of 50 years without the possibility of parole must be levied by a jury as opposed to the trial judge.

The Kansas court has vacated and remanded at least five other Hard 50 sentences in light of the U.S. Supreme Court decision in Alleyene vs. United States....

The court rejected all of Roeder’s other arguments in his bid for a new trial. Among those arguments was that Sedgwick County District Court Judge Warren Wilbert declined to allow Roeder to present a voluntary manslaughter defense based on the “imperfect defense of others” concept.  Roeder never denied at trial that he intended to shoot and kill Tiller in the vestibule of the doctor’s Wichita church before services on Sunday, May 31, 2009, but said he did so to prevent the abortion provider from taking the lives of unborn children.

Roeder, who testified that his anti-abortion activities began after his 1992 conversion to Christianity, said his frustration grew after Tiller was acquitted in 2009 of 19 charges brought by former Kansas Attorney General Phill Kline alleging that Tiller broke state law in performing late-term abortions. Roeder testified that upon learning of Tiller's acquittal, he believed that “nothing was being done” and the legal process had been exhausted....

But the district court ruled that Roeder wasn’t entitled to use a necessity defense, based in part on a previous Kansas Supreme Court ruling — also involving an anti-abortion case — that a person isn’t entitled to a such a defense if the activity they were trying to stop was a legal activity....

“Even for Roeder's professed purpose of stopping all abortions, not just illegal abortions, the Draconian measure of murder was not the only alternative,” Justice Lee Johnson wrote in the unanimous decision. The district court also ruled, and the Supreme Court agreed, that Roeder wasn’t entitled to a voluntary manslaughter defense because no imminent threat existed on that Sunday morning to justify the use of lethal force....

The Kansas Legislature, responding to the U.S. Supreme Court decision in Alleyene, rewrote the Kansas law on Hard 50 sentencing during a special session in 2013.  The new law says a jury must determine whether special circumstances exist to impose the increased minimum sentence.  But how such new sentencing will be conducted has yet to be determined, as none has yet been conducted in the cases where a Hard 50 sentence has been vacated.  Sedgwick County District Attorney Mark Bennett said Friday after the Roeder decision that he intended to conduct such a hearing.

The full 50+ page opinion of the Kansas Supreme Court in Kansas v. Roeder, No. 104,520 (Kansas Oct. 24, 2014), is available at this link.

October 25, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, October 24, 2014

Split Minnesota Supreme Court rules lenient sentence in rape case was abuse of discretion

As reported in this local article, headlined "Minnesota Supreme Court criticizes probation sentence in rape case," the top appellate court in Minnesota recently took the unusual step of overruled a trial judge's sentencing decision as an abuse of discretion. Here are the details:

In a rare and harshly worded ruling, the Minnesota Supreme Court said Wednesday that a lower court judge erred in sentencing a particularly violent rapist to probation rather than the recommended 12 years in prison.

Justice David Lillehaug opened his 21-page opinion by saying that district courts have a great deal of discretion in sentencing. And the state high court rarely holds that it has been abused, he said. “But rarely is not never,” he continued. “This is such a rare case.”

The state Supreme Court vacated the sentence of 30 years’ supervised probation given to Jose Arriaga Soto Jr. Polk County District Judge Jeffrey Remick now must conduct additional fact-finding on whether the recommended 12-year sentence should be imposed or if a departure from the guidelines is justified.

Soto was 37 when he beat and raped a woman for two hours after drinking all night in an East Grand Forks apartment in 2012. Soto pleaded guilty to first-degree criminal sexual conduct. A co-defendant who was involved in the rape to a lesser degree than Soto received 12 years in prison, the opinion noted in its many criticisms of the ruling.

A presentencing report said Soto had minimized his actions without taking responsibility and blamed the victim. At his sentencing, he apologized to her. The opinion notes, in a tempered outrage, the horrors of the assault for the victim: “Soto committed a forcible and violent assault against an intoxicated and thus particularly vulnerable person. The assault lasted approximately 2 hours and the victim was repeatedly subjected to multiple penetrations by two men. Soto slapped the victim’s face, choked her, and caused several injuries.”

The opinion noted the Legislature and the Sentencing Guidelines Commission have determined a sentence of 12 years in prison is “presumed to be appropriate” for someone with Soto’s criminal history who commits such a rape. The victim’s vulnerability, the multiple forms of penetration and other particular cruelty that may be involved suggests that an upward departure on the case could have been appropriate, the opinion says. The opinion also noted that Soto’s co-defendant, Ismael Hernandez, was “arguably less culpable than Soto — he left the room shortly after the sexual assault began,” but he went to prison for the presumptive sentence of 12 years....

Three of the seven justices dissented from Lillehaug’s opinion. Alan Page wrote that the district court relied on factors generally recognized by the higher court as potentially relevant considerations in determining whether probation was appropriate for Soto. “While another [district] court or the members of our court might have arrived at a different conclusion, that alone does not make this situation the ‘rare case’ warranting our intervention,” wrote Page, who was joined in his dissent by Chief Justice Lorie Gildea and G. Barry Anderson....

Even though probation wasn’t recommended in Soto’s pre-sentence report by a probation officer or an evaluator from a sex offender treatment program, Remick placed him on supervised probation for 30 years. The judge emphasized Soto’s age, lack of serious criminal record and family support. He also said the crime was primarily caused by alcohol and that Soto’s attitude in court was largely respectful and that “this particular type of event seems largely out of character.”

Lillehaug’s opinion challenged all the factors Remick listed for Soto’s amenability to probation, finding that he drew false or inappropriate conclusions in considering them. He said the judge should have argued that Soto was “particularly” amendable, the legal standard used to justify the departure of staying a presumptive sentence.

The full majority and dissenting opinion in Minnesota v. Soto, No. A13-0997 (Minn. Oct. 22, 2014), can be accessed at this link.

October 24, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, October 22, 2014

Does new DOJ appointee want to decriminalize all drug possession ... and would that be so bad?

The questions posed by the title of this post are prompted by this recent commentary authored by Cully Stimson and titled "The New Civil Rights Division Head Wants to Decriminalize Possession of All Drugs." Here are excerpts:

So who supports decriminalizing cocaine, heroin, LSD, methamphetamine, ecstasy and all dangerous drugs, including marijuana? No, it’s not your teenage nephew. It’s President Obama’s new acting head of the Justice Department’s Civil Rights Division, Vanita Gupta. In 2012, Gupta wrote that “states should decriminalize simple possession of all drugs, particularly marijuana, and for small amounts of other drugs.” (Emphasis mine).

Last week, President Obama appointed Vanita Gupta to the position of acting head. According to the Washington Post, the administration plans to nominate her in the next few months to become the permanent assistant attorney general for the Civil Rights Division. Her views on sentencing reform – a bi-partisan effort in recent years – have earned her qualified kudos from some conservatives. But her radical views on drug policy – including her opinion that states should decriminalize possession of all drugs (cocaine, heroin, LSD, ecstasy, marijuana etc.) should damper that support of those conservatives, and raise serious concerns on Capitol Hill....

To begin, she believes that the misnamed war on drugs “is an atrocity and that it must be stopped.” She has written that the war on drugs has been a “war on communities of color” and that the “racial disparities are staggering.” As the reliably-liberal Huffington Post proclaimed, she would be one of the most liberal nominees in the Obama administration.

Throughout her career, 39-year old Gupta has focused mainly on two things related to the criminal justice system: first, what she terms draconian “mass incarceration,” which has resulted in a “bloated prison population, and second, the war on drugs and what she believes are its perceived failures.

She is particularly open about her support for marijuana legalization, arguing in a recent CNN.com op-ed that the “solution is clear: …states could follow Colorado and Washington by taxing and regulating marijuana and investing saved enforcement dollars in education, substance abuse treatment, and prevention and other health care.”...

But Gupta does not stop with marijuana. In calling for all drugs to be decriminalized – essentially legalizing all dangerous drugs – Gupta displays a gross lack of understanding of the intrinsic dangers of these drugs when consumed in any quantity.

Heroin, LSD, ecstasy, and methanqualone are Schedule I drugs, which are defined as “the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.” Cocaine, methamphetamine, Demerol and other drugs are Schedule II drugs, defined as “drugs with a high potential for abuse…with use potentially leading to severe psychological or physical dependence.”

Sound public policy must be based on facts, not radical unsafe, and dangerous theories.

I concur 100% with the statement at the end of this commentary that "sound public policy must be based on facts," and that it why I am more than a bit troubled that this commentary quite false asserts that Gupta's seemingly reasonable suggestion that persons should not be deemed criminals for possessing a small amount of a narcotic is tantamount to advocacy for "legalizing all dangerous drugs."

The term "decriminalize" in this context means to treat in a less-serious regulatory manner like we treat traffic offenses. Nobody would assert that we have "essentially legalized" all speeding and other traffic offenses because we only respond to the offense with fines and limited criminal sanctions. Likewise, advocacy for decriminalizing simple possession of small amounts of drugs is not the equivalent of endorsing a fully legalized marketplace for drugs comparable to what we are seeing in a few states now with marijuana.

That all said, I think Vanita Gupta's suggestion that states decriminalize simple possession of drugs as a way to de-escalate the drug war, as well as Cully Stimson's obvious concerns with such a suggestion, are very legitimate issues for engaged political and public policy debate.  (For the record, I would generally support most state drug-decriminalization efforts, though I also would generally advocate that criminal sanctions kick in based on possession of larger dealer-size quantities of certain drugs.)   I am pleased to see this commentary, even in a effort to assail a new DOJ nominee, start to bring overdue attention to these important modern drug-war issues.  But I hope in the future Mr. Stimson and others will make and understand the important distinction between advocating for decriminalization and advocating for full legalization.

October 22, 2014 in Drug Offense Sentencing, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, October 21, 2014

Bladerunner Oscar Pistorius sentenced to five years in prison for killing girlfriend

Download (1)As reported in this lengthy CNN piece, "Oscar Pistorius' fall from grace culminated Tuesday with a five-year sentence in the shooting death of his girlfriend." Here is more:

The sentence was imposed for the charge of culpable homicide, which in South Africa means a person was killed unintentionally, but unlawfully.  Under South African law, he will have to serve at least one-sixth of his sentence -- 10 months -- before he can ask to be placed under correctional supervision, usually house arrest, instead....

During his trial, the double-amputee sprinter often sobbed at the mention of his girlfriend Reeva Steenkamp's name.  He insisted that he mistook her for an intruder when he shot her through a toilet door on Valentine's Day 2013.  But there was very little visible reaction from Pistorius as the sentence was read out in the Pretoria court.

Speaking to CNN's Robyn Curnow in the last few weeks before his sentencing, Pistorius told her that he would respect and accept the decision of the court and that he was not afraid of imprisonment.  He said he hoped to contribute while in prison by teaching people how to read or start a gym or running club. "Oscar will embrace this opportunity to pay back to society," his uncle, Arnold Pistorius, told reporters.  "As an uncle, I hope Oscar will start his own healing process as he walks down the path of restoration.  As a family, we are ready to support and guide Oscar as he serves his sentence."

The Steenkamp family's lawyer, Dup De Bruyn, said in a statement: "The family is satisfied. They are glad that it is over and are satisfied that justice has been done."

The prosecution had asked for a minimum prison sentence of 10 years for Pistorius.  After the ruling Tuesday, South Africa's National Prosecuting Authority said it had not yet decided whether to appeal Judge Thokozile Masipa's verdict that he is not guilty of murder. Pistorius' defense had called for a sentence of house arrest and community service. There was no immediate reaction from the defense team on the sentencing.  Both sides now have a 14-day period in which they can choose to lodge any appeal, according to CNN legal analyst Kelly Phelps....

Giving her reasoning Tuesday, Masipa emphasized that the decision on sentencing would be "mine and mine alone." She pointed out that sentencing is not an exact science but relies on an assessment of elements, including the nature and seriousness of the crime, the personal circumstances of the accused and the interests of society.

She said she would also take into account the factors in sentencing of retribution, deterrence and rehabilitation. In any case, she said, "sentencing is about achieving the right balance."

In her final remarks, Masipa dismissed evidence given by probation officer Annette Vergeer that prison would not be able to accommodate Pistorius' disability, saying her testimony was based on outdated information and sketchy. She said Pistorius would not present the prison system with an "insurmountable challenge."

The judge added that she felt that Pistorius' vulnerability had been overemphasized in the evidence given and that his excellent coping strategies -- shown in his ability to compete with able-bodied athletes -- had been overlooked. He would be able to continue treatment for physical problems and mental health issues while in prison, she said.

In terms of the seriousness of the offense, Masipa said Pistorius had shown gross negligence in shooting into a small toilet cubicle, knowing there was someone inside who could not escape. He also knew how to handle firearms, she said, adding that these were "very aggravating" factors.

On the other hand, mitigating factors include that Pistorius is a first offender and remorseful, Masipa said. She also mentioned his contribution to society in giving his time and money to charities and inspiring others with disabilities to believe they could succeed.

Perhaps seeking to preempt criticism from those who'd like to see either a tougher or more lenient sentence, Masipa pointed out that the purpose of the court is to serve the public interest, not make itself popular. She also indicated that her sentence wasn't affected by Pistorius' fame. "It would be a sad day for this country if the impression was to be created that there was one law for the poor and disadvantaged and another for the rich and famous," she said.

The judge also highlighted the loss suffered by Steenkamp's family, which has had a negative effect on her father's health. Steenkamp was young, vivacious and full of life at the time of her death, she said. "The loss of life cannot be reversed. Nothing I say or do today can reverse what happened," she said.

Previous related post:

October 21, 2014 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, October 19, 2014

Reviewing Alabama's (somewhat successful) use of sentencing guidelines to reduce prison growth

ImagesAs highlighted in this lengthy local article, headlined "Sentencing reform has slowed, not stopped, inmate growth," sentencing and sentencing reform in Alabama has been a dynamic process that includes sentencing guidelines intended to steer more offenders away from prison. Here are some details:

The state's sentencing structure has a huge impact on the prison population, which is at about 190 percent the capacity it was designed for. A 24-member panel — the Prison Reform Task Force — is working with the Council of State Governments Justice Center to analyze the system and find ways to reduce overcrowding, reduce recidivism and improve public safety.

Andy Barbee, research manager of the CSG's justice center, said Alabama's switch in October 2013 to presumptive guidelines — which judges are required to use unless there's a mitigating or aggravating factor to be considered — has accelerated a downward trend in the number of sentences to prison and the lengths of those sentences. Those guidelines, however, only apply to drug and theft cases.

That trend started in 2006, when voluntary guidelines were made available for judges to use. Judges still had the option to choose existing sentencing laws, but had to acknowledge for the record that voluntary guidelines were considered, Barbee said. The state took those guidelines a step forward when they approved legislation in 2012 that established the presumptive guidelines....

The new guidelines use a point system that weighs factors such as past criminal history and facts of the crime to impose a sentence, said Bennet Wright, executive director of the Alabama Sentencing Commission. The commission is the research arm of the criminal justice system. It's responsible for implementing changes when laws change and making annual recommendations for improvements to the governor, Legislature, chief justice and attorney general.

Wright said the purpose of creating the presumptive guidelines was to provide uniform sentencing practices across Alabama counties, and to make sure the system is fair, effective and encourages community supervision for nonviolent offenders.

But because there are scarce drug rehabilitation and mental health resources and those vary county by county, more structured and uniform assessments of those in the criminal justice system need to be in place to make sure services are effective. "At some point, the state will have to make a bigger investment in community services and supervision programming," Wright said. "Matching offenders with the right services lowers the likelihood that they'll commit more crimes."

The presumptive guidelines are binding unless a judge decides to downgrade the sentence based on facts, or unless an aggravating factor that might warrant a harsher sentence is proved, Wright said. Barbee said the switch to presumptive guidelines was a bold move in the right direction that took political courage, but the next step is to make sure the structure in place continues to evolve. He said similar changes need to happen with parole.

Although the number of arrests, sentences to prison and lengths of sentence are decreasing, the prison population is still on the rise. However, the presumptive guidelines are projected to slow the tremendous growth that the prison population would have seen otherwise, Wright said. "The presumptive guidelines are not going to drastically lower the prison population," Wright said. "It would be a modest reduction at best, but more than likely, it would result in a stabilization. The point is, if you didn't have them, the prison population would just grow, grow, grow."

Much of the current prison population was punished under a set of laws that provided more serious punishments to a larger class of offenses, Barbee said. "Simply waiting on the guidelines to have an effect won't get the system where it wants to be until many years out," Barbee said. "Therefore it's critical, if the state wants to have a near-term impact on the crisis level of overcrowding, it looks beyond sentencing."

Barbee said there are some caveats with the state's sentencing guidelines. Burglary is considered a violent crime, regardless of whether anyone else was involved during the burglary.... He also said Alabama has one of the lowest felony theft thresholds in the country at $500. The threshold was recently raised from $250, he said, and most states are at about $1,000 or $2,000.

The fact that the state's laws don't consider weight or amount when it comes to drug crimes also makes it more likely that punishment might not match the crime. He said any amount of drug possession other than marijuana — whether it's one pill or a pound of cocaine — is a felony.

October 19, 2014 in Advisory Sentencing Guidelines, Offense Characteristics, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Thursday, October 16, 2014

Author John Grisham says "we've gone nuts with this incarceration" of child porn downloaders

One of my (many) wonderful students alerted me to this notable UK press piece reporting on an interview with famous law author John Grisham who had some interesting (and likely-to-be-controversial) comments about tough sentencing for those who download child porn.  The article is headlined "John Grisham: men who watch child porn are not all paedophiles," and here are excerpts:

America is wrongly jailing far too many people for viewing child pornography, the best-selling legal novelist John Grisham has told The Telegraph in a wide-ranging attack on the US judicial system and the country's sky-high prison rates. Mr Grisham, 59, argued America's judges had "gone crazy" over the past 30 years, locking up far too many people, from white collar criminals like the businesswoman Martha Stewart, to black teenagers on minor drugs charges and — he added — those who had viewed child porn online.

"We have prisons now filled with guys my age. Sixty-year-old white men in prison who've never harmed anybody, would never touch a child," he said in an exclusive interview to promote his latest novel Gray Mountain which is published next week.  "But they got online one night and started surfing around, probably had too much to drink or whatever, and pushed the wrong buttons, went too far and got into child porn."

The author of legal thrillers such as The Firm and A Time to Kill who has sold more than 275m books during his 25-year career, cited the case of a "good buddy from law school" who was caught up in a Canadian child porn sting operation a decade ago as an example of excessive sentencing.  "His drinking was out of control, and he went to a website. It was labelled 'sixteen year old wannabee hookers or something like that'. And it said '16-year-old girls'.  So he went there. Downloaded some stuff — it was 16 year old girls who looked 30.

"He shouldn't ’a done it.  It was stupid, but it wasn't 10-year-old boys.  He didn't touch anything.  And God, a week later there was a knock on the door: ‘FBI!’ and it was sting set up by the Royal Canadian Mounted Police to catch people — sex offenders — and he went to prison for three years."

"There's so many of them now.  There's so many 'sex offenders' — that's what they're called  — that they put them in the same prison.  Like they're a bunch of perverts, or something; thousands of ’em.  We've gone nuts with this incarceration," he added in his loft-office in Charlottesville, Virginia.

Asked about the argument that viewing child pornography fuelled the industry of abuse needed to create the pictures, Mr Grisham said that current sentencing policies failed to draw a distinction between real-world abusers and those who downloaded content, accidentally or otherwise.  "I have no sympathy for real paedophiles,” he said, "God, please lock those people up.  But so many of these guys do not deserve harsh prison sentences, and that's what they're getting," adding sentencing disparities between blacks and whites was likely to be the subject of his next book.

There are currently some 2.2m people in jail in the US — or more than 750 per 100,000 population — which makes the US by far the heaviest user of prison sentences in the world. By contrast, Britain imprisons just 154 per 100,000 population.  However Mr Grisham’s remarks are likely to anger child-rights campaigners that over the past decade have successfully lobbied the US Congress to demand tougher sentences for those who access child pornography online.

Since 2004 average sentences for those who possess — but do not produce — child pornography have nearly doubled in the US, from 54 months in 2004 to 95 months in 2010, according to a 2012 report by the U.S. Sentencing Commission. However the issue of sex-offender sentencing has sparked some debate in the US legal community after it emerged that in some cases those who viewed child porn online were at risk of receiving harsher sentences than those who committed physical acts against children.

A provocative article in the libertarian magazine Reason headlined "Looking v Touching" argued last February that something was "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".  And in January this year the US Supreme Court was unable to resolve a debate over whether a man who viewed images of a child rape should be as liable to pay the same financial compensation to the victim as the original perpetrator of the crime.

UPDATE: As I expected, John Grisham's child porn sentencing comments has stirred controversy and he has already issued a formal apology.  This CNN story provides the basics of the early aftermath:

Those comments and the nature in which Grisham discussed the very serious issue of child pornography incited a flood of hurt, disappointed and angry reactions from fans.

"The day that you came out in an interview and said that watchers of child porn get too stiff of a penalty for it (you said 10 years was too much) makes you someone that I cannot support nor no longer want to read," a reader named Kendra Benefield Lausman shared on Grisham's Facebook page; another posted that she's taken her entire Grisham library to her "burn barrel" with the intent to set the books on fire.

"How do you think child porn is made?" a poster named John Kelly asked on Grisham's page. "Someone is still getting hurt you imbecile. I'm sad to say that I will never purchase, nor consume, one of your books ever again. I am disgusted."

After the uproar began, Grisham issued an apology.

"Anyone who harms a child for profit or pleasure, or who in any way participates in child pornography -- online or otherwise -- should be punished to the fullest extent of the law," the author said in a statement. "My comments made two days ago during an interview with the British newspaper The Telegraph were in no way intended to show sympathy for those convicted of sex crimes, especially the sexual molestation of children. I can think of nothing more despicable. I regret having made these comments, and apologize to all."

That may not be enough for some of his former followers. "You clearly said in the interview that people (like your drunk friend) who look at child porn don't deserve severe punishment," Facebook user Raylene Jolly Wheeler posted in response to Grisham. "Not sure how you can backtrack that statement."

October 16, 2014 in Offense Characteristics, Purposes of Punishment and Sentencing, Second Amendment issues, Sex Offender Sentencing | Permalink | Comments (17) | TrackBack

Tuesday, October 14, 2014

Does the Constitution limit the age at which a juve killer can be tried as an adult?

The question in the title of this post is promopted by this AP story emerging from Pittsburgh sent my way by a helpful reader.  The story is headlined "Boy, 10, Charged As Adult In Death Of 90-Year-Old Woman," and here are the details:

A 10-year-old boy has been charged as an adult in the beating death of a 90-year-old woman over the weekend in northeastern Pennsylvania. Prosecutors in Wayne County said the boy was visiting his grandfather, the caretaker of Helen Novak, in Tyler Hill on Saturday, when county emergency responders got a call reporting her death.

District Attorney Janine Edwards said in a statement that the boy’s mother brought him in to the state police barracks at Honesdale the same afternoon and reported that her son had told her that he had gone into the woman’s room and she yelled at him. The boy told his mother that “he got mad, lost his temper and grabbed a cane and put it around Novak’s throat,” police said. Advised of his rights and interviewed by a trooper, he said he “pulled Novak down on the bed and held the cane on her throat and then punched her numerous times,” authorities said.

State police said the boy told them that he went to his grandfather and told him that the woman was “bleeding from her mouth” but denied he had harmed her, but later told him that he had punched the woman and put a cane around her neck. Police said an autopsy done Monday at Wayne Memorial Hospital in Honesdale indicated blunt force trauma to the victim’s neck, and the death was ruled a homicide....

The boy was charged as an adult with criminal homicide and aggravated assault, with the prosecutor’s office noting that the crime of homicide “is specifically excluded from the juvenile act” and therefore “a juvenile who commits the crime of homicide is charged as an adult.”  The boy was held without bail pending an Oct. 22 preliminary hearing.

I am pretty sure that, prior to the Supreme Court's Eighth Amendment ruling in Miller, this 10-year-old killer would have be facing a mandatory LWOP sentence under Pennsylvania law. Now, I believe, state law provides only a mandatory minimum of 20 or 25 years for this kind of killer. Especially for those still troubled by the Miller ruling and eager to have some juve killers get LWOP sentences (such as folks talking here over at Crime & Consequences), I wonder if they would assert that even a kid still in elementary school could and should never even have a chance to live outside a cage for a crime like this.

October 14, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (5) | TrackBack