Tuesday, May 17, 2016

"How to solve the biggest issue holding up criminal justice reform: Republicans and Democrats can't agree on 'mens rea' reform. Here's a middle ground."

The title of this post is the headline of this notable new Politico commentary authored by Professor Alex Sarch. Here are excerpts:

Despite gridlock and the distraction of a presidential election, Congress hoped to pass legislation this year that would overhaul our flawed criminal justice system. But with the election approaching, that hope is rapidly disappearing over disagreements on one controversial issue: “mens rea reform.”

“Mens rea” — Latin for “guilty mind” — refers to requirements in criminal law that concern a defendant’s mental state, like the intent to cause harm or knowledge of what one was doing. Republicans have demanded that criminal justice reform also make such requirements in federal law stricter, forcing prosecutors in many cases to prove that defendants knew they were breaking the law. Democrats have balked at the proposed reforms, arguing that they would make it much harder to prosecute corporate executives for white-collar crimes.

Both sides have a point. Mens rea reform can increase clarity in the law and make unfair prosecutions less likely. But the Republican proposals, in both the House and Senate, are so strict that they would insulate many highly culpable actors from conviction. Instead of allowing the mens rea issue to derail criminal justice reform, lawmakers should agree on a middle ground that imposes a simple default mens rea requirement — knowledge of the facts constituting the offense. Such an agreement would improve our criminal law and pave the way for comprehensive criminal justice reform....

Late last year, Republicans introduced bills in the House and Senate to reform the mens rea requirements in federal law. But both bills have significant flaws that may actually create more confusion and protect culpable actors. Since courts already presume that criminal statutes include a mens rea requirement, an ill-conceived mens rea policy would be worse than the status quo.

The Senate bill would make it too hard to convict culpable actors because it says that for crimes without an explicit mens rea requirement, prosecutors must prove willfulness — defined as “knowledge that the person’s conduct was unlawful.” This standard has scary implications.... [W]hy should we immunize the bank executive who knew full well he was issuing misleading public statements, but who just happened to be unsure whether his actions were criminal (perhaps because he didn’t make time to research it)? For this reason, Department of Justice officials and other policy groups have criticized the proposed mens rea reform bills for making it harder to prosecute corporate crime.

The Senate bill does include an important exception for statutes to which Congress affirmatively intended no mental state requirement to apply. Moreover, the bill would not change any mental state elements established by Supreme Court precedent (though notably not precedent from Federal Courts of Appeals). However, these provisions do not make up for the bill’s dangerous new willfulness standard.

The House bill has been criticized as confusing, but it is a less extreme proposal than the Senate bill. It generally requires only knowledge of the facts constituting the offense as the default mental state requirement. In addition, when it comes to crimes that a reasonable person would not know to be illegal — largely crimes in technical areas like securities, tax or environmental law — the government would also have to prove that “the defendant knew, or had reason to believe, the conduct was unlawful.” In other words, it would have to show that they 1) knew the facts constituting the offense and 2) should have known their conduct was illegal. This means that mere negligence as to illegality would suffice for these crimes.

So for a bank executive accused of accounting fraud, for example, the government would only have to show that she 1) knew what she was doing (i.e., making false statements) and 2) should have known — based on her experience and professional role — that her actions were illegal.... However, the House bill has two problems. First, unlike the Senate bill, it does not make exceptions for statutes that courts have already interpreted to include a mens rea element or for statutes that Congress clearly intended to have no mental state requirement. Second, the bill makes it easier for culpable actors to escape liability by claiming ignorance of the law. Those accused of a technical crime could avoid punishment by claiming they didn’t realize their actions were illegal and that it wasn’t their responsibility to find out.

However, these problems can easily be fixed: Congress should add exceptions to the House bill and adopt regular knowledge as the default mens rea. Effectively, this deletes the second requirement from the House bill. In other words, for technical crimes, the government would not have to prove a defendant should have known his conduct was illegal, just that it was illegal and that the defendant knew the circumstances of the action. This knowledge standard would not make ignorance of the law any kind of excuse. Such a modest proposal should be an acceptable compromise, as it is only a small departure from the House bill. Republicans are right that the lack of clear mental state requirements in federal statutes lets courts interpret the law in uneven and unpredictable ways. But their proposed reforms would make it too hard to convict culpable actors. Instead, lawmakers should agree on a simple default mens rea — like the House bill’s basic requirement of knowledge of the facts. Such changes would provide clarity for courts and break the political logjam blocking criminal justice reform.

Though I appreciate this effort to find a mens rea middle ground that might help create more consensus on criminal justice reforms in Congress, I continue to feel strongly that those who oppose the incorporation of a high mens rea requirement in federal criminal laws to be misguided. Put simply, I really do not see any "scary implications" of having a high mens rea requirement for federal criminal offenses given that our massive regulatory state already has no shortage of civil laws (with significant penalties) that do not require showing mens rea.

May 17, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (9)

Monday, May 09, 2016

Former federal drug warriors assail sentencing reform efforts because "drug dealing is a violent crime"

William J. Bennett, the director of drug control policy for President George H. W. Bush, and John P. Walters, the director of drug control policy for President George W. Bush, have this notable new Washington Examiner op-ed headlined "Drug dealing is a violent crime."  Here are excerpts:

The Sentencing Reform and Corrections Act now before Congress is based on a lie — that drug dealing is not a violent crime.  Americans have been told this lie for years even as we witness the violence and death caused by drug dealers in our communities.  Now, this lie is propelling legislation through Congress that will destroy more lives.

As former directors of the Office of National Drug Control Policy, we carry a particular responsibility to speak up when so many who should know better claim that drug trafficking has been treated too harshly under federal law.

Claims by President Obama and others that federal prisons are filled with "nonviolent drug offenders" and that drug dealing is a "victimless crime" are grotesquely dishonest.  How can the drug trade be victimless when most Americans know a victim?  How can it be non-violent when we witness the carnage every night on the local news?...

In the federal prison system, 99.5 percent of those incarcerated for drug convictions are guilty of serious trafficking offenses.  And according to a Bureau of Justice Statistics study of state drug inmates, 77 percent reoffend within five years of release, with 25 percent committing violent offenses.  Most of these convicted drug dealers are career criminals with long rap sheets.  By softening punishments for these traffickers, as this legislation does, Congress would give convicted dealers shorter sentences and early release causing destruction to communities across America. Moreover, this push to release experienced traffickers is occurring at the same time our nation is enduring a 440-percent increase over the past seven years in heroin overdose deaths.

Drug dealing is inseparable from violent victimization.  Illegal drugs kill tens of thousands each year in overdose deaths.  More die in violent acts and accidents under the influence of drugs.  Still more die slowly of blood-borne diseases contracted through injection drug use and through high-risk behavior while under the influence of drugs, including prostitution to support addiction.  Street-level dealers look into the eyes of these victims daily as they take addicts' money and foster their self-destruction.  Traffickers at levels above the street know this reality and take their wealth from it, spreading death across neighborhoods and across the globe....

Considering all that America knows about drug addiction, only the dishonest or willfully blind can claim that drug trafficking is a non-violent crime.  Drug dealing depends on addiction; addicts consume the vast majority of the drug supply; the dealer cultivates users to create more addicts in a murderous cycle.

Drug dealers know drugs will eventually impair judgment and bend free will, altering personality and poisoning bonds to loved ones.  We know drug use and addiction degrade millions of lives — impairing education, employment and parenthood.  Drugs are at the root of much of the child abuse, endangerment and domestic violence perpetrated against the innocent.

But the destruction is much wider. Addiction and drug dealing ravage whole communities, urban and rural.  We need look no further than the daily reports of the heroin epidemic today, or the still-vivid memories of the meth epidemic and the crack epidemic.  Drug dealing makes whole neighborhoods war zones, places of economic blight and large-scale victimization.  There is no greater single source of actual harm to Americans today — none.  The cost of incarcerating drug dealers is small compared to the true cost of their crimes to society.

Knowing this, it is an utterly irresponsible effort to release experienced drug dealers from federal prison before they have completed their just sentences, arguing they are merely misguided business people or desperate individuals caught up in an unfair system.  The truth about drug dealing is this: It requires cruelty and willful indifference to the visible suffering inflicted on others — over and over again — harming individuals, families and whole communities.

May 9, 2016 in Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10)

Wednesday, May 04, 2016

"Should His PTSD Keep Him From Death Row?"

The question in the title of this post is from the second part of the headline of this Mother Jones article.  The first part of the headline explains "An Ex-Marine Killed Two People in Cold Blood," and here is how the piece starts:

At 12:44 p.m. on March 6, 2009, John Thuesen called 911. "120 Walcourt Loop," he told the dispatcher, breathing hard. "Gunshot victims." The dispatcher in College Station, Texas, asked what had happened. "I got mad at my girlfriend and I shot her," he said. "She has sucking chest wounds…"

He'd not only shot Rachel Joiner, 21, but also her older brother Travis.  Thuesen had broken into the house after midnight, not sure what he'd do but wanting to see his estranged girlfriend.  She was out with her ex-boyfriend, but when she returned later that morning, things "got out of hand."  Thuesen, a 25-year-old former Marine reservist, called 911 and almost immediately expressed remorse.  When he was arrested, he repeatedly asked the police about the victims and tried to explain why he'd kept shooting Rachel and her brother: "I felt like I was in like a mode…like training or a game or something."

The prosecution in the case gave its opening statement on May 10, 2010. With DNA evidence and no other suspects, it only took prosecutors three days to make their case.  Over the next week, the defense team touched on the facts that Thuesen suffered from depression and post-traumatic stress disorder (PTSD) from his service in Iraq, but pleaded for leniency in his sentence. None of that swayed the jury: On May 28, 2010, he was sentenced to death.

While on death row, Thuesen was given new lawyers, death penalty experts from the state's Office of Capital and Forensic Writs.  In Texas, there are often two trials, one to determine guilt or innocence and the second to determine sentencing.  Lawyers argued in their 2012 petition to have both the death penalty and the conviction vacated, and for a new sentencing trial, arguing that if his lawyers had served him adequately, "John Thuesen would not be on death row today, awaiting an execution date." In July 2015, Judge Travis Bryan III — the same judge who had presided over the criminal trial — agreed, and ruled that Thuesen's lawyers hadn't adequately explained the significance of his PTSD to jurors, and how it had factored into his actions on the day of the murders.  Bryan also ruled that Thuesen's PTSD wasn't properly treated by the Veterans Health Administration.  He recommended that Thuesen be granted a new punishment-phase trial.  The Texas Court of Criminal Appeals could rule on Bryan's recommendation at any time.

The ruling on his case has implications for a question that has concerned the military, veterans' groups, and death penalty experts: Should service-related PTSD exclude veterans from the death penalty?  An answer to this question could affect some of the estimated 300 veterans who now sit on death rows across the country, according to the Death Penalty Information Center.  But it's unclear how many of them suffer from PTSD or traumatic brain injuries, given how uneven the screening for these disorders has been.

Experts are divided about whether veterans with PTSD who commit capital crimes deserve what is known as a "categorical exemption" or "exclusion."  Juveniles receive such treatment, as do those with mental disabilities.  In 2009, Anthony Giardino, a lawyer and Iraq War veteran, argued in favor of this in the Fordham Law Review, writing that courts "should consider the more fundamental question of whether the government should be in the business of putting to death the volunteers they have trained, sent to war, and broken in the process" who likely would not be in that position "but for their military service."  In a 2015 Veterans Day USA Today op-ed, three retired military officials argued that in criminal cases, defense attorneys, prosecutors, and judges often don't consider veterans' PTSD with proper due diligence.  "Veterans with PTSD…deserve a complete investigation and presentation of their mental state by the best experts in the field," they wrote.

That idea is utterly unacceptable to Kent Scheidegger of the Criminal Justice Legal Foundation, a California-based victims-of-crime advocacy group, who contends a process already exists for veterans' defense attorneys to present mitigating evidence.  To him, a categorical exclusion would be an "extreme step" that would mean "one factor — always, in every case — necessarily outweighs the aggravating factors of the case, no matter how cold, premeditated, sadistic, or just plain evil the defendant's actions may have been."

May 4, 2016 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, May 03, 2016

Former New York Assembly speaker gets lengthy (way-below guideline) federal sentence for corruption

This Wall Street Journal article reports on today's notable sentencing of a notable crooked New York politician under the headline "Sheldon Silver Sentenced to 12 Years: The former New York state Assembly Speaker also was ordered to pay a $1.75 million fine." Here are the details on this sentencing (and related others to come):

Sheldon Silver was sentenced to 12 years in prison on Tuesday, making the former New York Assembly speaker one of the most powerful politicians in the state to be given time behind bars. U.S. District Judge Valerie Caproni, who also ordered Mr. Silver to pay a fine of $1.75 million and forfeit about $5.3 million he reaped from the criminal schemes of which he was convicted, said she hoped the punishment would serve as a deterrent.

“I hope the sentence I impose on you will make other politicians think twice, until their better angels take over,” said Judge Caproni. “Or, if there are no better angels, perhaps the fear of living out ones golden years in an orange jumpsuit will keep them on the straight and narrow.”

In a brief statement before the sentence was announced, Mr. Silver, 72 years old, said he had let down his family, colleagues and constituents. “I’m truly, truly sorry for that,” said Mr. Silver, who was found guilty in November of honest-services fraud, extortion, and money laundering.

Prosecutors had asked Judge Caproni for a sentence greater than any previously imposed on a New York legislator convicted of public corruption, a term that court filings suggest was 14 years. Federal sentencing guidelines suggested a range from about 22 to 27 years. Judge Caproni said Tuesday that imposing such a sentence in this case would be “draconian and unjust” given Mr. Silver’s age.

Prosecutors said Mr. Silver used his public position and power to obtain millions of dollars in kickbacks and bribes. Mr. Silver’s schemes were “multifaceted and nefarious,” Assistant U.S. Attorney Carrie Cohen said before the sentence was announced Tuesday. Ms. Cohen said Mr. Silver needed a significant prison term that reflects the public toll of his crimes and the need to deter similar conduct in Albany. “His conviction caused unparalleled damage: to our political systems, to the public’s belief in our state government,” she said.

Attorneys for Mr. Silver questioned the benefit of sending him to prison, and described their client as a committed public servant who already had suffered an extraordinary fall from grace. “He is already crushed,” attorney Joel Cohen said Tuesday. “He’s been devastated by everything that occurred over the last year and a half.”...

The conviction of Mr. Silver, a Manhattan Democrat who served as speaker for more than two decades, was a significant victory for Manhattan U.S. Attorney Preet Bharara, who has aggressively pursued public-corruption cases. “His crimes struck at the core of democratic governance — a man with unparalleled power over the affairs of New York State was secretly on the take, abusing all that power to enrich himself and prevent anyone from learning about his corrupt schemes,” prosecutors from Mr. Bharara’s office wrote in sentencing documents. “Today’s stiff sentence is a just and fitting end to Sheldon Silver’s long career of corruption,” Mr. Bharara said in a statement.

Two of Mr. Silver’s former Albany colleagues are expected to be sentenced later this month. Former state Senate Majority Leader Dean Skelos, who in December was found guilty of public-corruption charges including conspiracy, bribery and extortion, is scheduled to be sentenced on May 12. Former state Sen. John Sampson, who was found guilty in July of obstruction of justice and making false statements to investigators, is scheduled to be sentenced in Brooklyn federal court on May 19.

Prior related post:

May 3, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (5)

Monday, May 02, 2016

At SCOTUS, "age-old principes of conspiracy law" produces brand new division of Justices

More than six months after oral argument, the Supreme Court this morning finally released its opinion in Ocasio v. United States, No. 14-361 (S. Ct. May 2, 2016) (available here), which concerns the application of a federal conspiracy law surrounding extortion. Justice Alito wrote the opinion for the Court, and here is how it gets started:

Petitioner Samuel Ocasio, a former officer in the Baltimore Police Department, participated in a kickback scheme with the owners of a local auto repair shop.  When petitioner and other Baltimore officers reported to the scene of an auto accident, they persuaded the owners of damaged cars to have their vehicles towed to the repair shop, and in exchange for this service the officers received payments from the shopowners.  Petitioner was convicted of obtaining money from the shopowners under color of official right, in violation of the Hobbs Act, 18 U. S. C. §1951, and of conspiring to violate the Hobbs Act, in violation of 18 U. S. C. §371. He now challenges his conspiracy conviction, contending that, as a matter of law, he cannot be convicted of conspiring with the shopowners to obtain money from them under color of official right. We reject this argument because it is contrary to age-old principles of conspiracy law.

Few should be surprised that Justice Alito in Ocasio was not moved by a criminal defendant's effort to make more challenging pursuit of a conspiracy charge (a type of crime Judge Learned Hand famously describes as the "darling of the modern prosecutor's nursery").  But I was certainly surprised with how the votes of the other seven Justices broke down:

ALITO, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed a dissenting opinion. SOTOMAYOR, J., filed a dissenting opinion, in which ROBERTS, C. J., joined.

Because I do not spend all that much time thinking about either extortion or conspiracy, I doubt I will have much more to say about Ocasio. But I would be grateful to hear from readers in the comments as to whether they think this opinion was worth the wait and/or whether the unusual divides of the Justices has a possible significance beyond this one case.

May 2, 2016 in Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Reviewing the type of federal drug case that the SRCA should most impact

Mandatory_minimums_1abe826ceaaedee05283c916fe4b2585.nbcnews-ux-600-480This lengthy new NBC news piece, headlined "As Drug Sentencing Debate Rages, 'Ridiculous' Sentences Persist," focuses on one notable federal drug defendant subject to a notable federal drug mandatory minimum that could be impacted by federal statutory sentencing reform. Here are excerpts:

When he was an addict and petty criminal, Leo Guthmiller knew little, and cared less, about the federal government's harsh drug sentencing laws. The worst he'd endured was 90 days at the county lockup in Lincoln, Nebraska.

Then, last April, nearly two years after he'd stopped popping painkillers and smoking methamphetamine, Guthmiller was arrested by two federal agents as he headed for a drug counseling session. He later learned why: a junkie and his girlfriend, facing stiff prison sentences, had told investigators that Guthmiller had introduced them to his meth dealer around the time he was getting sober. That made him the middleman in a street-level drug distribution scheme.

Because this was a federal case, and the amount of meth exceeded 500 grams, or 1.1 pounds, Guthmiller was suddenly facing at least 10 years behind bars as a co-conspirator.... The charge thrust him, unwittingly, into a raging debate over a pillar of America's war on drugs: mandatory-minimum sentences. Intended to sideline high-level traffickers, the laws have been used to sweep thousands of nonviolent, small-time offenders into epic prison terms....

Guthmiller didn't dispute the couple's accusation. But he bristled at the government's portrayal of him as a scheming operative. Besides, he was a changed man: sober, working, studying for his GED, leading AA meetings, completing a drug court program, newly married. Still, he pleaded guilty, unwilling to risk a trial that could end in an even longer prison term. "I'm not an innocent person, but at the same time this is all a bit much, I feel," Guthmiller told NBC News.

At his sentencing in mid-February, U.S. District Court Judge John Gerrard agreed. He praised Guthmiller's turnaround, but said federal drug statutes gave him no choice. He called the case "Exhibit A" on why Congress needed to pass The Sentencing Reform and Corrections Act, which would give judges more flexibility. "A 10-year mandatory minimum sentence in a case like this is absolutely ridiculous," Gerrard said from the bench. "And the only reason I am imposing the sentence that I am imposing today is because I have to."...

The judge's remarks caught the attention of the Washington, D.C., advocacy group Families Against Mandatory Minimums. As he prepared to spend the next decade behind bars, Guthmiller found himself cast as a case study in America's unforgiving drug laws. "The whole idea is these 10-year sentences were written by Congress to go after serious drug offenders, and they're being applied to a guy who is home and is going to drive himself to prison," said Kevin Ring, the group's vice president. "He obviously isn't this major criminal that everyone should be so scared of."

This is a key point in the drug-law reform effort, which has inspired an unlikely alliance among Democrats and Republicans, many of whom gathered at the White House last week to discuss their campaign. Mandatory minimum sentences, toughened during 1980s crime panics, established criteria under which judges had to impose lengthy prison terms for drug trafficking. The penalties depended on the type of drug, the amount of it, the offender's criminal history and the nature of the crime — including whether the offense involved violence, weapons or children. The new laws triggered an explosion in the U.S. prison population, contributing to a dramatic decline in crime rates but also costing taxpayers millions.

That cost-benefit balance has since tipped. Researchers now say that mass incarceration's impact on the crime rate has ebbed. Studies show that the likelihood of punishment, rather than the length of a prison sentence, is more likely to deter criminals. And there are now millions of nonviolent ex-offenders — a disproportionate number of whom are black — unable to contribute to the economy, including many who return to crime. Reformers argue that the money America spends on prisons would be better used for cops, schools and alternatives to jail, such as probation and drug courts.

In a 2011 report to Congress, the U.S. Sentencing Commission found that mandatory minimums focused too heavily on the amount of drugs and not enough on the offender's role in the trafficking operation. The commission has since loosened some of its guidelines retroactively, allowing thousands of nonviolent, low-level drug offenders to leave prison early. President Barack Obama joined the effort by granting clemency to many others.

Those moves are considered Band-Aids compared to the larger fix offered by the Sentencing Reform Act, legislation that would allow judges to impose shorter prison terms for bit players. But the bipartisan bill is bogged down by election-year politics. The Justice Department, meanwhile, has tried to change the system from within, ordering federal prosecutors to focus on high-level dealers. It appears to be working: the number of mandatory-minimum cases has dropped to 45 percent of all federal drug cases, down from 66.8 percent in 2007.

John Higgins, chief of the narcotics unit at the U.S. Attorney's Office in Nebraska, said in a statement that his prosecutors followed the Justice Department's advice, seeking mandatory minimums "only in those cases that warrant it." That included Guthmiller's, he said. He declined to go into detail, but pointed to court hearings in which prosecutors alleged that Guthmiller's 2013 matchmaking between the dealer and the couple led to the sale of 15-pounds of meth. "Methamphetamine is the number one drug threat in Nebraska," Higgins said.

May 2, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Another prominent elderly corrupt politician presenting dynamic federal sentencing issues

NY-DK527_NYCHAR_11U_20150122183914This lengthy Wall Street Journal article, headlined "Sheldon Silver Set to Be Sentenced: Judge has wide leeway as prosecution asks for long prison term, and defense seeks leniency for the former Assembly speaker," reports on issues surrounding a high-profile politician's federal sentencing scheduled for tomorrow in New York. Here are excerpts:

A federal judge is expected to decide Tuesday whether former New York state Assembly Speaker Sheldon Silver deserves a long prison sentence for years of corruption, or leniency because he is ill and says he is sorry.

Leading up to the decision, lawyers for Mr. Silver have filed letters of support from ex-colleagues, constituents, family members and even a former employee at a Chinese restaurant he frequented. “I know that Sheldon Silver has been convicted, but please consider his kind personality and his support to the community,” wrote Fei Chen, who was a cook at Nom Wah Tea Parlor in Manhattan’s Chinatown.

The endorsement is part of a trove of materials from both the prosecution and defense that reflect the range of factors judges are supposed to consider in public-corruption cases and the latitude they have in deciding on punishment. Judges in cases like Mr. Silver’s grapple with how to account for breaking the public trust, and to what extent a sentence should serve as a deterrent to future crime.

Mr. Silver, a Manhattan Democrat who served as Assembly speaker for more than two decades, was convicted of honest-services fraud, extortion and money laundering. Prosecutors said Mr. Silver, 72 years old, netted about $4 million in kickbacks from schemes involving a real-estate company and an oncologist. Attorneys for Mr. Silver have said they would appeal.

Prosecutors have asked U.S. District Judge Valerie Caproni for a prison sentence greater than any previously imposed on legislators convicted of public corruption in the state. Court filings suggest the longest sentence for such an official was 14 years. “Silver exploited the vast political power entrusted in him by the public to serve himself,” prosecutors wrote.

Defense lawyers have asked for leniency, suggesting “rigorous community service.” The former legislator also wrote an apology letter to the judge. “I failed the people of New York,” Mr. Silver’s letter said.

U.S. law says judges should decide sentences based not only on the offense, but also the defendant’s “history and characteristics.” Also relevant, the law says, are deterrence, public protection and the needs of the defendant, including medical care. In court filings, Mr. Silver’s lawyers have highlighted his prostate cancer, bile-duct obstruction and knee problems.

For judges, sentencing in public-corruption cases presents a particular quandary: While the convicted official usually isn’t considered a threat to public safety, or capable of committing the same crimes in the future, the government has an incentive to punish such officials harshly to deter others from similar offenses.

“The difficulty you have in high-profile cases is that there is a philosophical argument that general deterrence sometimes trumps all other factors,” said Benjamin Brafman, a defense attorney not connected to the Silver case who represented Carl Kruger, a former state senator who was convicted on public-corruption charges and sentenced to seven years.

In the case of Mr. Silver, Judge Caproni can also consider prosecutors’ evidence that Mr. Silver used his position to help two women with whom he had extramarital affairs because, like the letters, it speaks to his character. In legal filings, attorneys for Mr. Silver said the allegations were unproven.

In recent years, public-corruption cases have garnered more attention, particularly because prosecutors have become increasingly vocal when bringing charges, said Deborah Gramiccioni, executive director of NYU’s Center on the Administration of Criminal Law. “The public’s indignation perhaps seems more pronounced,” said Ms. Gramiccioni, a former federal prosecutor who worked on public-corruption cases. But such indignation doesn’t necessarily influence judges’ decisions, she said....

Data show that New York judges often diverge from the federal guidelines when awarding prison sentences. Of 3,301 cases sentenced in federal court in New York in fiscal 2015, judges awarded sentences within the guideline range in 29.5% of cases, compared with 47.3% nationwide, according to federal statistics. Of 544 fraud cases in New York, 28.5% of sentences fell within the guidelines. Just five people received sentences above the guideline range.

In Mr. Silver’s case, sentencing guidelines suggest a range from about 22 to 27 years. In sentencing filings, both prosecution and defense attorneys cite many of the same public-corruption cases, including that of Mr. Kruger, the former state senator. Attorneys for Mr. Silver note that Mr. Kruger was sentenced to well below the federal recommendations. But prosecutors note that Mr. Kruger pleaded guilty, which they view as a crucial difference. “Unlike Kruger, here Sheldon Silver has accepted no responsibility and shown no remorse for his crimes,” they said.

May 2, 2016 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, April 28, 2016

"A Legal Definition of Leadership: Understanding Section 3B1.1 of the Federal Sentencing Guidelines"

The title of this post is the title of this new paper now available via SSRN authored by Marin Roger Scordato. Here is the abstract:

This Article offers a formal legal definition of “leadership” drawn from an unusual quarter: criminal sentencing. Sentencing guidelines that include adjustments based on the extent to which a defendant was a “leader” have spawned hundreds of appellate court cases attempting to develop a thoughtful, workable definition of the term. Reviewing these cases, this Article offers 25 separate characteristics courts have found material to a legal judgment as to whether an individual has been a leader within a criminal enterprise.

Eleven of these characteristics can be organized into three categories, which operate on the boundaries of the leadership concept.  The first category contains those circumstances courts have found do not, by themselves, confer leadership status.  For example, courts have found that controlling property alone does not make one a leader.  The second category of leadership characteristics are those circumstances that are not, in themselves, sufficient to show a defendant is not a leader.  For example, there may be more than one leader in a group, so the identification of one or more other leaders in a group does not preclude the possibility of characterizing a defendant as a leader as well.  A third category of leadership focuses on the external group functions of leadership, the ways in which a leader monitors and mediates the points of contact between the group as a separate entity and important elements outside the group.

The remaining 14 characteristics comprise a fourth category that resides at the center of what courts find establishes leadership status. To courts, the gravamen of leadership is the control, organization, and responsibility for other group members.  Examples of characteristics in this category are that a leader inspires members to make sacrifices for the group, possesses decision-making authority within the group, carries ultimate responsibility for the group’s success, and resolves disputes within the group.

This Article concludes by noting this formal legal definition of leadership, given its basis in criminal sentencing, has generated a set of leadership characteristics all of which appear to enjoy the possibility of general applicability to a broad range of factual contexts including standard business settings, but still notes how very far the formal legal definition of leadership is from conventional definitions grounded explicitly in a moral, value-laden context.

April 28, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Wednesday, April 27, 2016

Reviewing the final SCOTUS oral argument week that was full of criminal justice issues

As noted in this post last week, three of the final five cases that the Justice were scheduled to hear during this last week of the Term's oral arguments involved criminal justice issue.  The highest-profile and perhaps most consequential of these cases was argued today  concerning the public corruption verdict against former Virginia Gov Bob McDonnell.  Thanks to the always great folks at SCOTUSblog, I can link here to two posts about the McDonnell and to single post on the two other cases heard yesterday:

April 27, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Former House speaker gets black hole of federal prison for 15 months after sentencing supernova

In this post yesterday, I explained why I called today's sentencing of former House Speaker Dennis Hastert a sentencing supernova. Today, this ABC News piece reports on the sentencing events and outcome in federal court this morning:

Former Speaker of the House John Dennis Hastert was sentenced today in federal court to 15 months in prison and two years of supervised release after he faced one of his accusers, who identified himself publicly for the first time as Scott Cross, a former Yorkville High School wrestling student.

Cross, who was until now identified in court documents only as “Individual D,” took the stand and introduced himself as a father, husband and businessman. Cross described his abuse by Hastert as “his darkest secret as he [Hastert] became more powerful.”

Hastert has also been required to comply with a sex offender treatment program. The sentence follows an almost year-long hush money case hinging on payments Hastert made to a student he allegedly sexually abused while acting as a wrestling coach at Yorkville High School in Illinois.

Cross said Hastert had "offered massages" to him in order to help him lose weight. He went on to describe a one-time incident when he was 17, saying Hastert "grabbed my penis and began to rub me. Stunned, I pulled up my shorts and ran out of the locker room.” Cross said he decided to testify after Hastert and his defense team reached out to his brother, Illinois politician Tom Cross, for a letter of support. Tom Cross served in the Illinois House of Representatives for 22 years. Scott Cross was on the varsity wrestling team at Yorkville High School when Hastert was a coach in the 1970s.

Using a walker, Hastert approached the judge. “I am deeply ashamed to be standing here today,” he said. “I know I am here because I mistreated some of my athletes that I coached. ... I want to apologize to the boys I mistreated. I was wrong and I accept that.” Judge Durkin referred to Hastert as a "serial child molester" while delivering the sentence.

The man formerly second in line for the presidency was wheeled into court this morning by attendants. In a January court filing, Hastert’s lawyers revealed that the former speaker’s health had rapidly declined following a stroke and a blood infection, and that he now needed “assistance for most daily activities.” Hastert technically faced a maximum penalty of five years.

Dozens of Hastert’s supporters have written letters to the judge asking for mercy, including former Republican Congressional leader Tom Delay, who called Hastert “a man of integrity. He loves and respects his fellow man.” CIA Director Porter Goss called Hastert “a rock solid guy with center-of-the country values.”

Hastert pleaded guilty in October to violating bank laws in connection with paying out hush money over the years allegedly to one of his victims, and in April his defense team made a filing publicly acknowledging the “harm” he caused to “others” for “misconduct that occurred decades ago.”

April 27, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (8)

Tuesday, April 26, 2016

You be the judge for "sentencing supernova": what punishment for former House speaker Dennis Hastert for structuring (and sex) offenses?

MassiveStarLifecycleI have decided to call tomorrow's scheduled sentencing for former House speaker J. Dennis Hastert a "sentencing supernova."  As science geeks know, and as this Wikipedia entry explains, a supernova is "an astronomical event that occurs during the last stellar evolutionary stages of a massive star's life, whose dramatic and catastrophic destruction is marked by one final titanic explosion."  I consider any former speaker of the House to be a "massive star" and I look at his coming sentencing as the culmination of a "dramatic and catastrophic destruction" as it was slowly unearthed by federal authorities that he was committing federal banking offenses in order to pay hush money to one (of now it appears many) of Hastert's long-ago sex abuse victims.

I also am thinking of Hastert's sentencing in "supernova" terms because there are so many dynamic and debatable sentencing issues swirling around his case.  This recent Chicago Tribune article, headlined "More than 40 letters in support of Hastert made public before sentencing," reviews just some of the sentencing issues in play (with my emphasis added):

More than 40 letters in support of former U.S. House Speaker Dennis Hastert — including one from his former congressional colleague Tom DeLay — were made public Friday evening in advance of his sentencing next week on hush money charges.

"We all have our flaws, but Dennis Hastert has very few," wrote DeLay, the Texas Republican who served as majority leader under Hastert in the early 2000s. "He doesn't deserve what he is going through.  I ask that you consider the man that is before you and give him leniency where you can."...

Also included were letters from Hastert's wife, Jean, and sons Joshua and Ethan, who wrote of his devotion to his family and his good deeds as a coach, teacher and later as a politician.  They also wrote of concerns over his failing health — Hastert's lawyers have said he suffered a stroke and near-fatal blood infection last year that left him hospitalized for weeks.  "This has taken a terrible toll on our family," his wife wrote. "I am particularly worried that if he is taken from his home and the care he needs, his health will continue to deteriorate."

Hastert, 74, faces probation to up to five years in prison when he is sentenced Wednesday, although his plea agreement with prosecutors calls for a sentence of no more than six months behind bars.  He pleaded guilty in October to one count of illegally structuring bank withdrawals to avoid reporting requirements, admitting in a plea agreement that he'd paid $1.7 million in cash to a person identified only as Individual A to cover up unspecified misconduct from decades earlier.

In a bombshell sentencing memorandum filed earlier this month, prosecutors alleged Hastert had sexually abused at least four wrestlers as well as a former team equipment manager when he was coach at Yorkville [more than 35 year ago]. The abuse allegedly occurred in hotel rooms during team trips and in almost-empty locker rooms, often after Hastert coaxed the teens into a compromising position by offering to massage them, prosecutors said.  The filing also alleged that Hastert set up a recliner chair outside the locker room showers in order to sit and watch the boys....

When he was confronted by FBI agents about the unusual bank withdrawals in December 2014, Hastert lied and said he was just keeping his money safe because he didn't trust security at the banks, according to prosecutors.  Later, he accused Individual A of extorting him by making false accusations of sexual abuse and even agreed to record phone conversations for the FBI — a gambit that fell apart when agents realized it was Hastert who was lying, according to prosecutors.

I have highlighted above the notable fact, thanks to a shrewd plea deal in this case, Hastert's punishment is statutorily limited to a prison sentencing range of zero to five years and that prosecutors are bound to recommend a sentence of no more than six months imprisonment.  Prosecutors cut this deal, I suspect, because they realize that Hastert's old age and poor health and recent history of public service would make unlikely that a judge would sentence him to a very lengthy prison term.

That all said, it appears nearly undisputable that Hastert did sexually abuse numerous boys while serving as a wrestling coach decades ago and essentially got away with these crimes.  (It is my understanding that the statute of limitations has passed so that he could not now be prosecuted for them.)  His more recent bank/money structuring crimes are, of course, connected to these long-ago terrible crimes and Hastert also actively lied to public officials in a manner that could also have readily brought  separate serious criminal charge for obstruction of justice.  

Based on all these facts, I could make reasonabe arguments for sentences ranging from probation to five years, and I also could imagine lots of arguments for creative alternative sentencing terms instead of (or in addition to) a prison stint.  For example, I believe some members of the community have urged the judge to require Hastert to make significant payment to groups that work with sexually abused boys.  And perhaps one could strain to read federal law to argue that all of those abused by Hastert long ago are still technically victims of his more recent offenses and thus should be able to obtain some kind of restitution through his sentencing.  (This would seem to be stretch, but there are reports that some other "victims" are planning to testify at Hastert's sentencing.)

So I sincerely wonder, dear readers, what supernova sentence you think should be impose in this case?

April 26, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (37)

Monday, April 25, 2016

Notable dissent from Eighth Circuit panel ruling affirming re-imposed stat-max 10-year sentence for possessing unregistered sawed-off shotgun

A helpful reader alerted me to an intriguing ruling by a split Eighth Circuit panel today in US v. Webster, No. 15-3020 (8th Cir. April 25, 2016) (available here). Here is the key substantive paragraph from the majority per curiam ruling in Webster:

Webster’s challenge to the substantive reasonableness of his sentence is reviewed under a deferential abuse-of-discretion standard.  See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).  As Webster notes, the district court imposed the same sentence on remand as Webster received in the first sentencing, and this court identified in the first appeal several mitigating sentencing factors that indicated a reasonable probability Webster would have received a shorter sentence but for the sentencing error.  See Webster, 788 F.3d at 893.  However, the fact that this court “‘might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.’”  Feemster, 572 F.3d at 462 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).  While “substantive review exists, in substantial part, to correct sentences that are based on unreasonable weighing decisions,” United States v. Kane, 639 F.3d 1121, 1136 (8th Cir. 2011) (quotation omitted), this court “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”  Feemster, 572 F.3d at 461-62 (quoting Gall, 552 U.S. at 51).  In reimposing the 120-month sentence, the district court commented in part that the Guidelines did not adequately take into account the seriousness of the offense: Webster had discharged the subject firearm into a fleeing vehicle, narrowly missing the driver.  See U.S.S.G. § 5K2.6 (stating that court may depart if weapon was used in commission of offense; extent of increase depends on dangerousness of weapon, manner it was used, and extent its use endangered others; discharge of firearm may warrant “substantial sentence increase”).  In short, after careful review, this court cannot say that this is the “unusual case” where the district court’s sentence will be reversed as substantively unreasonable.  See Feemster, 572 F.3d at 464.

Judge Bright's dissent from this decision by the majority is what really makes Webster worth a full read by sentencing fans. Here are excerpts that provide a taste for why (with emphasis in the original and some cites omitted):

[O]ur reversal on the basis of substantive unreasonableness is often left to a district court’s decision to vary below the Guideline range.  Rarely, if ever, do we hold sentences above the Guideline range substantively unreasonable.  The pattern of failing to reverse above-Guideline sentences on the basis of substantive unreasonableness perpetuates our broken sentencing system.

As discussed by Former Attorney General Eric Holder, the problem with the federal sentencing system is the “outsized, unnecessarily large prison population.” See Eric Holder, Attorney Gen. of the U.S., U.S. Dep’t of Justice, Remarks at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013), available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech- 130812 .html. As the Attorney General stated, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” Id.  Our sentencing policy has also resulted in “harsher punishments” for “people of color” throughout the United States.  Id. The White House recently highlighted the “decades of overly punitive sentencing policies” through the commutation of numerous prison terms....

Webster is an African-American man with a high school education.  At the time of the offense, Webster had no employment record and came from a broken home. In spite of his adverse life circumstances, Webster has a limited criminal record with the lowest category criminal history score.  At the resentencing hearing, Webster also informed the district court of his completion of a 14-hour drug treatment program, and attendance at both anger management and victim impact classes.  (Resent’g Tr. 11- 12). Thus,  in the year between Webster’s original sentence and the resentencing hearing, Webster showed the ability for successful rehabilitation....

Further, Webster was 20-years-old at the time of the offense. Since 2005, the Supreme Court, has consistently held young people are most likely to change during a period of incarceration. In fact, psychological research indicates the human brain does not reach its ultimate stage of development until adolescents reach their mid-twenties....

Based on the current move in this country to shorten federal sentences, coupled with Webster’s age [20], criminal history, education level, remorse, and efforts to rehabilitate himself, the district court’s punishment may well be excessive “under the totality of the circumstances in this case, judged in light of all of the § 3553(a) factors.” Kane, 639 F.3d at 1136.  Therefore, I would vacate Webster’s sentence and remand for reconsideration consistent with this opinion.

April 25, 2016 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (17)

Thursday, April 21, 2016

Federal district court declines to consider acquitted conduct at sentencing "based on the implication of Sixth Amendment guarantees"

A helpful reader alerted me to a notable new federal district court opinion handed down yesterday by Judge Mark Mastroianni in US v. Buffis, No. 13-30028-MGM (D. Mass. April 20, 2016) (available for download below).  The full opinion runs only eight pages and federal sentencing fans will want to read it in full. These snippets should highlight why:

The government has filed a motion requesting the court sentence the defendant based on the totality of his misconduct. Specifically, the government is requesting the court sentence the defendant based on charged conduct for which he was acquitted by the jury, several incidents of uncharged behavior, and conduct initially charged but dismissed before trial. The superseding indictment against the defendant charged twelve counts; defendant was convicted of the first count, the twelfth was dismissed, and defendant was acquitted of counts two through eleven. The general nature of the Government’s case against the defendant involves his extortion and theft of funds, while in his role as Chief of Police for the Town of Lee....

The government advocates for legally appropriate sentencing considerations to affect the defendant’s sentence on the one convicted charge. The government’s motive, however, is to sentence the defendant based generally on its belief, after a largely unsuccessful prosecution, that the defendant is a “longtime thief and a brazen liar.”...

[B]road recognition of a sentencing court’s authority to consider acquitted conduct comes from the holding in United States v. Watts, 519 U.S. 148, 157 (1997) (per curiam).... The wisdom of interpreting Watts, under Sixth Amendment scrutiny, as even creating an available option for considering acquitted conduct at sentencing has been often questioned....

In Watts, the Court explained that consideration of acquitted conduct is not punishment for that conduct, noting the acquittal did not technically prove innocence, but, rather, is the causal increase of sentence based on the manner of commission of the crime convicted. Watts, 519 U.S. at 154-55. Established law under Watts allows a judge to decline to consider acquitted conduct at sentencing. This court has difficulty reconciling Watts with the burden of proof and presumption of innocence standards, which align an acquittal more naturally with factual innocence than with a guileful avoidance of justice deserving of a penalty. This court, therefore, declines to consider acquitted conduct in this case based on the implication of Sixth Amendment guarantees.

Additionally, under the facts here, I am not satisfied the acquitted conduct has useful relevance to the consideration of the manner in which the defendant committed the crime for which he was convicted. This relevance of the crimes to the manner of commission is the connection emphasized by the court in Watts. 519 U.S. at 154-55. In this case the jury, by special verdict form, indicated the manner it found the defendant to have committed a single act of extortion.

Based on the jury's verdict form, the court knows the manner of commission found by the jury for the only convicted charge. None of the acquitted charges speak to the manner of commission of the extortion. Rather, the acquitted conduct would describe a motive and pattern of scheming and dishonesty to accomplish theft generally. This is unlike relying on acquitted conduct at sentencing to find that a firearm was possessed at the time of a drug crime and connected to its commission. See Watts, 519 U.S. at 154-55; Gobi, 471 F.3d at 313-14. Nor is this a situation like that of a drug case where acquitted conduct could be relevant to the manner of commission by showing the total weight of drugs involved. United States v. Putra, 78 F.3d 1386, 1388-89 (9th Cir. 1996), reversed by 117 S. Ct. 633 (1997).

Download Buffis - Court's sentencing decision

April 21, 2016 in Booker in district courts, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Brennan Center provides a (suspect?) "final analysis" of crime in 2015

The folks at the Brennan Center have this new report titled "Crime in 2015: A Final Analysis" authored by Ames Grawert and James Cullen Here is its first page with its summary findings:

This analysis provides final crime data to update the report, Crime in 2015: A Preliminary Analysis. It finds the same conclusions as that report (and its December 2015 update), with slightly different percentages.

The analysis examines crime in the 30 largest cities from 2014 to 2015, with 25 cities reporting data on murder through the end of 2015 and 22 reporting data on crime.  Its findings:

• As shown in Table 1A, crime overall in the 30 largest cities in 2015 remained the same as in 2014, decreasing by 0.1 percent across cities.  Two-thirds of cities saw drops in crime, which were offset mostly by an increase in Los Angeles (12.7 percent). Nationally, crime remains at all-time lows. The data show no evidence of a deviation from that trend.

• Violent crime rose slightly, by 3.1 percent.  This result was primarily caused by increasing violence in Los Angeles (25.2 percent), Baltimore (19.2 percent), and Charlotte (15.9 percent). Notably, aggravated assaults in Los Angeles account for more than half of the rise in violent crime in these cities. There is no evidence of a deviation from the historically low levels of violence the country has been experiencing.

• As shown in Table 1B, the 2015 murder rate rose by 13.3 percent in the 30 largest cities, with 19 cities seeing increases and six decreases. However, in absolute terms, murder rates are so low that a small numerical increase can lead to a large percentage change. Murder rates today are roughly the same as they were in 2012 — in fact, they are slightly lower.

• Final data confirm that three cities (Baltimore, Chicago, and Washington, D.C.) account for more than half (244) of the national increase in murders (Table 1B).  While this suggests cause for concern in some cities, murder rates vary widely from year to year, and there is little evidence of a national coming wave in violent crime. These serious increases seem to be localized, rather than part of a national pandemic, suggesting that community conditions remain the major factor. Notably, these three cities all seem to have falling populations, higher poverty rates, and higher unemployment than the national average (Table 2).  This suggests that economic deterioration of these cities could be a contributor to murder increases there.

These findings are consistent with the FBI’s Uniform Crime Report data from the first six months of 2015. Notably, the Brennan Center’s analysis focuses on major cities, where increases in crime and murder were highest, so this report likely systematically overestimates any rise in crime nationally.

I have in my title primed the question of whether we should look at this data as suspect largely because Bill Otis and others at Crime & Consequences have done a number of posts questioning how the Brennan Center has been analyzing and characterizing 2015 crime data.  Here are some of these C&C posts:

Readers know I am a proponent of "evidence-based" sentencing reform, but they should also know that I fully recognize (and am often eager to highlight) how evidence about both crime and punishment will often be used by advocates in very different ways.

April 21, 2016 in National and State Crime Data, Offense Characteristics, Who Sentences? | Permalink | Comments (1)

"Slimy Sheldon Silver should serve substantial slammer stint, sentencing statement says"

An awesome, amusing, amazing alliteration about prosecutors' potent politico punishment proposal after federal fraud findings made for too good a title for me not to reuse the headline of this New York Daily News piece.  Here are the serious senetencing specifics:

Disgraced ex-Assembly Speaker Sheldon Silver should serve more than 14 years behind bars for corruption — a longer term than any other state pol convicted of similar crimes, federal prosecutors argued Wednesday.

Silver, a Democrat convicted last November on seven corruption counts, should serve a sentence that reflects the “unprecedented magnitude, duration, and scope of his abuse of power,” Manhattan federal prosecutors said in the sentencing memo.

“It should reflect the immeasurable damage Silver caused to the democratic process and to the public trust. It should punish Silver for the vast harm he has caused and the position of trust that he exploited, deter other elected officials from the temptation towards corruption, and communicate to the public that the rule of law applies even to the most prominent of public officials.”...

Sentencing guidelines for Silver suggest a range from 262 to 327 months — that’s between 22 and 27 years — in a federal lockup. “The guidelines range is high because the United States Sentencing Commission explicitly has recognized the ‘threat to the integrity of democratic processes’ caused by public corruption offenses,” the feds wrote.

Manhattan U.S. Attorney Preet Bharara’s office also said the hefty suggestion stemmed from “the many egregious aspects of the defendant’s crimes — including Silver’s role as a high-level public official, his engagement in multiple corrupt schemes, the millions of dollars in bribe money Silver took in, and his laundering of his crime proceeds.”

Bharara wants Silver, 72, to forfeit the $5.2 million he pocketed in the scheme and cough up “a substantial fine of at least $1 million is appropriate in this case, particularly in light of the defendant’s significant remaining resources and his more than $70,000-per-year pension, paid for by New York State taxpayers.”

Silver’s lawyers maintain in their sentencing memo that Manhattan Federal Judge Valerie Caproni should consider “a term of rigorous community service — whether as an alternative to incarceration, or as a component of an appropriate below-guidelines sentence” due to his age and poor health. "One letter after another — written with full awareness of the jury's verdict - from Mr. Silver's constituents, neighbors, friends, family, fellow Assembly members, and other government officials attest to his outstanding character and unrivaled contributions," they wrote in the memo, filed Wednesday.

Silver's lawyers went on to quote a key staffer who said that Silver "acted with integrity and exhibited a deep, consistent commitment to issues that he felt best served the public interest." They also quoted former Mayor David Dinkins as saying, "Mr. Silver has shown himself to be a person of integrity, committed to working in partnership on the side of New York City's citizenry."

April 21, 2016 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (3)

Wednesday, April 20, 2016

Graphic portrayal of the sentencing price of prosecutorial misconduct in post-Katrina shooting case

Dt.common.streams.StreamServerAs reported in this local article, headlined "Ending decade-long Danziger Bridge case, federal judge accepts guilty pleas from 5 ex-NOPD officers," today a set of significant pleas were entered in a high-profile local police misconduct prosecution that ultimately resulted in high-profile federal prosecutorial misconduct. The reprinted graphic from the piece and these excerpts from the press article highlight why this all became (like so many matters) ultimately a sentencing story:

Five former New Orleans police officers involved in the Danziger Bridge shootings after Hurricane Katrina, or the coverup that followed, pleaded guilty in federal court in New Orleans on Wednesday, taking reduced sentences and avoiding another trial after their previous convictions were thrown out.

The plea deals bring an end to a case that has stretched on for more than a decade and come to symbolize the chaos and government negligence that followed the storm. The former officers received dramatically shorter prison terms than they did after a federal jury convicted them on numerous charges in 2011. The original sentences ranged from six years to 65. Those read out in court on Wednesday ranged from 3 years to 12.

The original convictions were tossed out in 2013 by U.S. District Judge Kurt Engelhardt over the online commenting scandal that by then had engulfed the office of former U.S. Attorney Jim Letten. In his ruling, Engelhardt said the anonymous comments that Letten’s top lieutenants had been making on news websites amounted to “grotesque prosecutorial misconduct,” even though those prosecutors were not on the trial team that convicted the Danziger defendants.

On Wednesday, Engelhardt outlined guilty pleas from the five officers, all but one of whom have remained behind bars while lawyers on both sides of the case prepared for the possibility of another trial. Arthur “Archie” Kaufman has been free on bond; Kenneth Bowen, Robert Gisevius, Robert Faulcon and Anthony Villavaso were brought to court from prison in orange jumpsuits.

Preparations for Wednesday’s hearing took place with an unusual amount of secrecy. It was not until Wednesday morning that documents were unsealed in the court record showing that the re-arraignment and sentencing would take place. In the meantime, extra security and an overflow room had been arranged at the downtown federal court building, where family members of the victims gathered to watch the conclusion of a decade-long ordeal.

The following are the original prison terms handed down to each of the five officers, and the new terms outlined on Wednesday. All of the officers will receive credit for time served.

Kenneth Bowen: originally 40 years, now 10 years.

Robert Gisevius: originally 40 years, now 10 years.

Robert Faulcon: originally 65 years, now 12 years.

Anthony Villavaso: originally 38 years, now 7 years.

Arthur Kaufman: originally 6 years, now 3 years.

The only remaining loose ends in the Danziger case are the charges pending against Former Sgt. Gerard Dugue, who was charged with abetting the coverup and was tried separately from the other officers in 2012. Engelhardt called a mistrial after a prosecutor mentioned an unrelated case that was supposed to be off-limits, and the government has not sought to retry the case since.

April 20, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2)

Thursday, April 14, 2016

California board recommends parole for former "Manson family member" Leslie Van Houten

Though the federal system and a number of states have abolished parole, a number of states still have this method of prisoner release and high-profile cases often provide a reminder of this important reality. And, as highlighted by this new Los Angeles Times article, headlined "Board recommends parole for Charles Manson follower Leslie Van Houten," high-profile parole cases can reach back to crimes committed nearly a half-century ago. Here are the details and some context:

A California review board recommended parole Thursday for former Charles Manson family member Leslie Van Houten, who was convicted in the 1969 killings of Leno and Rosemary LaBianca. The decision was issued following a hearing earlier in the day at the California Institution for Women in Chino.  Van Houten has been denied parole 19 times since she was convicted of murder in the deaths of Leno LaBianca, a wealthy grocer, and his second wife at their Los Feliz home.

After the ruling is reviewed by the parole board's legal team, it will be forwarded to Gov. Jerry Brown, who could decide to block Van Houten’s release.  Los Angeles County Dist. Atty. Jackie Lacey expressed disapproval after the decision was announced: "We disagree with the board's decision and will evaluate how we plan to proceed."

The youngest of Manson’s followers, Van Houten, 66, has been considered the least blameworthy member of the group, and has been portrayed by supporters as a misguided teen under the influence of LSD on the night of the killings. A former homecoming queen from Monrovia, Van Houten did not join in the Aug. 9, 1969, killings of Sharon Tate, the wife of film director Roman Polanski, and four others at the Benedict Canyon home that Tate was renting.

But the following day, then-19-year-old Van Houten joined in slaying the LaBiancas. Van Houten and another woman held down Rosemary LaBianca as Charles “Tex” Watson stabbed Leno LaBianca. After Watson stabbed Rosemary LaBianca, he handed Van Houten a knife. She testified to stabbing Rosemary at least 14 more times. The blood of the victims was used to scrawl messages on the walls, as had been done at the Benedict Canyon home.

In prior bids for parole, Van Houten's attorneys have characterized her as a model inmate who has obtained a college degree behind bars and has been active in self-help groups. At a 2002 parole board hearing, Van Houten said she was “deeply ashamed” of what she had done, adding: "I take very seriously not just the murders, but what made me make myself available to someone like Manson."...

Van Houten's attorney, Richard Pfeiffer, said he believed the two-member board was most persuaded by her exemplary behavior behind bars. "Since 1980, there were 18 different doctors who did psychiatric evaluations of her. Every single one found she was suitable for parole," Pfeiffer said.

Van Houten told her attorney that she was left "numb" by the decision handed down Thursday. Pfeiffer said he's hopeful that Brown opts to grant her parole. "The opposition to parole has always been the name Manson," he said. "A lot of people who oppose parole don’t know anything about Leslie’s conduct. Her role was bad. Everyone’s was. But they don’t know what she’s done since then and all of the good she’s done."

Last summer, a parole board recommended parole for Manson associate Bruce Davis, who was convicted in the 1969 killings of Gary Hinman and Donald “Shorty” Shea. But in January, Gov. Brown rejected parole for the 73-year-old, stating that “Davis' own actions demonstrate that he had fully bought into the depraved Manson family beliefs.” Davis was not involved in the killings of the LaBiancas, Tate and four others.

April 14, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Two timely stories of marijuana reform not yet helping those serving "Outrageous Sentences For Marijuana"

From two very different media sources today, I see two very notable stories of defendants convicted of marijuana-related offenses serving extreme sentences for a type of behavior that is now "legal" at the state level in some form throughout much of the United States. 

First, the New York Times has this new editorial headlined "Outrageous Sentences for Marijuana," which starts this way:

Lee Carroll Brooker, a 75-year-old disabled veteran suffering from chronic pain, was arrested in July 2011 for growing three dozen marijuana plants for his own medicinal use behind his son’s house in Dothan, Ala., where he lived.  For this crime, Mr. Brooker was given a life sentence with no possibility of release.

Alabama law mandates that anyone with certain prior felony convictions be sentenced to life without parole for possessing more than 1 kilogram, or 2.2 pounds, of marijuana, regardless of intent to sell.  Mr. Brooker had been convicted of armed robberies in Florida two decades earlier, for which he served 10 years. The marijuana plants collected at his son’s house — including unusable parts like vines and stalks — weighed 2.8 pounds.

At his sentencing, the trial judge told Mr. Brooker that if he “could sentence you to a term that is less than life without parole, I would.” Last year, Roy Moore, chief justice of the Alabama Supreme Court, called Mr. Brooker’s sentence “excessive and unjustified,” and said it revealed “grave flaws” in the state’s sentencing laws, but the court still upheld the punishment.

On Friday, the United States Supreme Court will consider whether to hear Mr. Brooker’s challenge to his sentence, which he argues violates the Eighth Amendment’s ban on cruel and unusual punishments. The justices should take the case and overturn this sentence.

Second, AlterNet has this new piece with this lengthy headline, "As Marijuana Goes Mainstream, California Pioneers Rot in Federal Prison: Luke Scarmazzo and Ricardo Montes opened a dispensary in Modesto. Now they're doing 20 years in federal prison. Their families want them home. "  Here is how it starts:

Behind the headlines about President Obama’s historic visit to federal prisons and highly publicized releases of non-violent drug offenders, the numbers tell a different story. Despite encouraging and receiving more clemency petitions than any president in U.S. history — more than the last two administrations combined, nearly 20,000 — very few federal prisoners are actually being granted clemency.

Nowhere is this irony more glaring than in the world of legal cannabis. Cannabis is now considered the fastest-growing industry in the nation, yet remains federally illegal. The sea change from the Department of Justice since 2009 has allowed state-legal cannabis industries to thrive. Federal solutions seem to be around the corner and for the first time cannabis businesses are being publicly traded and receiving legal Wall Street investment.

Ricardo Montes and Luke Scarmazzo are two of the 20,000 federal prisoners appealing to President Obama for clemency. They have exhausted their appeals and are serving 20-year mandatory minimum sentences for openly running a dispensary in the early days of California’s pioneering medical cannabis law. The irony isn’t lost on them that their crimes are now legal and profitable, but their appeals for clemency aren’t based on justice anymore — they just want to be home with their kids. Their daughters, Jasmine Scarmazzo, 13, and Nina Montes, 10, are appealing directly to President Obama to release their fathers via a Change.org petition.

Given that the Supreme Court has often stated and held that the Eighth Amendment's "scope is not static," but "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958), I think both these cases should be pretty easy constitutional calls if courts and/or executive branch officials took very seriously a commitment to updating and enforcing Eighth Amendment limits on lengthy prison terms in light of the obviously "evolving standards of decency" concerning medical use of marijuana throughout the United States and the world.  But, while hoping for some judicial or executive action in this arena, I am not holding my breath that any of these medical marijuana offenders will be free from incarceration anytime soon.

April 14, 2016 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, April 12, 2016

Interesting alternative sentencing being used in Thailand for drunk drivers

Regular readers know that I have long viewed drunk driving as a much-too-common, potentially-deadly offense that I fear is not regularly punished appropriately to best reduce recidivism and the extraordinary harms to public safety and property that this offense too often produces.  Consequently, I was intrigued to see this new article about a new kind of sentencing being tried for this offense in the Land of Smiles.  The piece is headlined "Thai drunk drivers to do morgue work in 'shock sentencing' strategy," and here are the details:

Drunk-drivers in Thailand will be sentenced to community service in morgues in an attempt to combat the world’s second highest road death rate. The plan to confront offenders with the risks of their actions in starkly morbid fashion was unveiled as the country embarked on its most dangerous time on the roads – the Thai new year holidays.

In a country with a notoriously poor road safety record, the ruling junta hopes the initiative will drive home the message that drink driving and reckless driving is lethal. "Traffic offenders who are found guilty by courts will be sent to do public service work at morgues in hospitals," said Police Col Kriangdej Jantarawong, deputy director of the Special Task Planning Division.

"It is a strategy used to make traffic offenders afraid of driving recklessly and driving while they are drunk because they could end up in the same condition. It is aimed to be a deterrent, a way to discourage people."

The “shock sentencing” strategy was approved by the Cabinet as the kingdom prepared for the extended Songkran new year festivities that formally begin on Wednesday. There is much higher traffic than normal as millions return to their home villages, while the festivities are also marked by heavy consumption of alcohol, including by drivers. Nominal helmet laws for motorcyclists are widely flouted.

The combination means the celebrations are accompanied by carnage on the roads each year. The government’s safety campaign bluntly refers to the holiday week as “The Seven Days of Danger”. The death toll has been increasing in recent years, despite government crackdowns and awareness campaigns. The authorities have also said that they will immediately impound the cars of motorists driving under the influence.

"We originally had community services at hospital wards (for offenders)," said Nontajit Netpukkana, a senior official at the department of probation. "But we think the intensity that comes from working in a morgue will help give those doing community service a clearer picture of what happens after accidents caused by drink driving.”

April 12, 2016 in Criminal Sentences Alternatives, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, April 09, 2016

Death penalty abolition, broadened gun rights, heroin surge, police (mis)conduct, reduced sentences ... so many suspects in Chicago murder spike and NYC murder decline

The headline of this post is my effort to make some sense of this past week's dueling crime news headlines coming from two of America's largest cities:

As the title of my post is meant to suggest, I think there are so many notable legal and social developments that could be referenced in an effort to account for the increased mayhem in Chicago and the increased mildness in New York City.  Indeed, what is so remarkable is the reality that all of the high-profile developments referenced in the title of this post have occurred nearly in parallel in both jurisdictions over the last decade, and yet the potential impact of all these developments seems to be playing out so very differently.

In a number of prior posts in recent years (some of which I have linked below), I have tried to figure out what seems to be working and not working in these two big US cites and various others to reduce or increase violent crime. But, as some of the posts below suggest, it often seems that the only simple explanation for dynamic crime rate data is that they seem to defy simple explanations:

April 9, 2016 in Death Penalty Reforms, Gun policy and sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (1)

Wednesday, April 06, 2016

Former coal exec gets maximum misdemeanor sentence for conspiracy to evade mine safety regulations

As reported in this AP piece, a federal "judge sentenced former coal executive Don Blankenship to a year in prison Wednesday for his role in the deadliest U.S. mine explosion in four decades, saying he was part of a 'dangerous conspiracy'."  Here is more on a high profile federal misdemeanor white-collar sentencing result:

One day after the sixth anniversary of the Upper Big Branch Mine explosion, which killed 29 men, U.S. District Judge Irene Berger gave the ex-Massey Energy CEO the maximum prison time and fine of $250,000. A federal jury convicted Blankenship on Dec. 3 of a misdemeanor conspiracy to violate mine safety standards at Upper Big Branch. MOBlankenship's attorneys contended he should receive probation and a fine, at most. The judge denied their motion for Blankenship to remain free as he appeals. It's not clear when he must report to prison.

As Blankenship left the courthouse, a few family members of miners who were killed started yelling at him while he and his attorneys spoke with reporters. "We buried our kid because of you," said Robert Atkins, whose son Jason died in the explosion.  "That's all I got is a goddamn tombstone."  Asked by a reporter what he had to say to the shouting family members, Blankenship said: "Well, just that the coal miners didn't cause the accident."...

U.S. Secretary of Labor Thomas Perez echoed prosecutors in saying the maximum punishment didn't fit the crime.  "This administration continues to support efforts in Congress to strengthen those penalties, and we stand ready to work with members who believe that no worker should lose their life for a paycheck," Perez said in a news release.

At Upper Big Branch, four investigations found worn and broken cutting equipment created a spark that ignited accumulations of coal dust and methane gas. Broken and clogged water sprayers then allowed what should have been a minor flare-up to become an inferno.  Blankenship disputes those reports.  He believes natural gas in the mine, and not methane gas and excess coal dust, was at the root of the explosion.

Sens. Joe Manchin and Shelley Moore Capito and the United Mine Workers of America spoke favorably about the decision.  The sentencing capped a wide-spanning investigation into Massey following the explosion. Four other workers in the corporate chain were convicted of crimes including faking a foreman's license, lying to federal investigators and conspiring in an illegal scheme to warn miners and other subsidiaries of surprise safety inspections.  Their sentences ranged from less than a year to more than three years in prison.

The judge described Blankenship's rise from a meager, single-mother Appalachian household to one of the wealthiest, most influential figures in the region and in the coal industry. "Instead of being to be able to tout you as a success story, we are here as a result of your part in a dangerous conspiracy," she said.

During the trial, prosecutors called Blankenship a bullish micromanager who meddled in the smallest details of Upper Big Branch.  They said Massey's safety programs were just a facade — never backed by more money to hire additional miners or take more time on safety tasks. Blankenship was acquitted of felonies that could have stretched his sentence to 30 years....

In 2011, Alpha Natural Resources, which bought Massey after the explosion, agreed to pay $210 million to compensate grieving families, bankroll cutting-edge safety improvements and pay for years of violations by Massey Energy.  Under the deal with federal prosecutors, Alpha wasn't criminally charged.  The judge already ruled that Blankenship won't have to pay $28 million in restitution to Alpha Natural Resources, helping him avoid a serious blow to his personal fortune.  Berger also ruled that Blankenship would not have to pay restitution to about 100 people, including former miners and family members.

April 6, 2016 in Fines, Restitution and Other Economic Sanctions, Offense Characteristics, White-collar sentencing | Permalink | Comments (7)

Tuesday, April 05, 2016

More reflections and criticisms of clemency work past, present and future

I reprinted here over the weekend a lovely and positive report by Lisa Rich about all the activity emerging from the White House last week on the important topic of clemency.  Thanks to Mark Osler, I have now learned that Thursday's extended "White House Briefing on Life After Clemency" can be watched in full via YouTube here. Here is how the event is described:

Building on the President's efforts to make our criminal justice system more fair by granting clemency to men and women sentenced under outdated sentencing rules, the briefing brings together academics, advocates and Administration officials seeking to remove obstacles to successful reentry. The briefing provides a collaborative environment to discuss and share ideas on the President's clemency initiative and ways to improve paths to reentry.

Critically, not everyone is having warm feelings about the work of Prez Obama and his administration's work to date in this arena.  In particular, Mark Osler followed up his participation in the White House briefing with this New York Times op-ed headlined "Obama’s Clemency Problem." Here are excerpts:

In the spring of 2014, the Obama administration announced an initiative to consider granting clemency to thousands of federal prisoners serving what Mr. Obama called “unjust” sentences for low-level drug crimes.  Federal prisoners were notified of the project, and more than 30,000 responded by submitting surveys to begin the process.

Despite the relatively high number of commutations that Mr. Obama has now granted, there are still more than 9,000 pending commutation cases, many of the sort singled out in the 2014 initiative as potentially worthy. So why has the president acted on so few?  Typically, a reluctance to exercise the pardon power is a result of political timidity.  But in this case, the Obama administration already took the political risk two years ago when it announced the clemency initiative.

The problem here is that too many cases can’t be adequately considered by the president because of a sluggish and often intransigent review process.  Clemency petitions undergo no fewer than seven levels of review, four of them within the Department of Justice.  Within the Justice Department, clemency petitions run not only through the Office of the Pardon Attorney but also through the office of the deputy attorney general.

When the pardon attorney, Deborah Leff, resigned in January, she complained in her letter of resignation that meritorious clemency cases had been thwarted by those above her. She noted in particular that some of her own recommendations had been overruled by the deputy attorney general, Sally Quillian Yates.  It is not an incidental fact that Ms. Yates is a career prosecutor.  When the Department of Justice reviews clemency cases, the opinions of prosecutors in the district of conviction are solicited and given considerable weight. But prosecutors are the wrong people for the task of vetting clemency cases.

I was a federal prosecutor for five years.  In that job, deciding someone’s fate is a necessary but difficult emotional commitment.  The prospect of being wrong — and a clemency initiative like Mr. Obama’s can feel like a judgment that prosecutors were wrong — can be a lot to bear.  We should not be surprised if, when it comes to Mr. Obama’s clemency initiative, prosecutors systematically resist what is, in effect, an indictment of their work.

President Obama can and should fix this problem with a simple executive order that places the Office of the Pardon Attorney in the White House, rather than at the bottom of the institutional structure at the Department of Justice.  An empowered pardon attorney (or perhaps a pardon board, as we find in many states) would then report directly to the president.  That would allow an independent but thorough review of clemency petitions free from the influence of career prosecutors.

And while Professor Osler is concerned about the slow and cumbersome process for considering clemency requests, this letter to AG Loretta Lynch authored by Senator Richard Shelby highlights that others are troubled by some of the few offenders who have already received sentence commutations.  Here is how Senator Shelby's letter gets started:

I am writing to you in response to yesterday’s announcement that President Barack Obama granted sentence commutations to 61 individuals. I have strong concerns that 12 of these 61 individuals were convicted of one, if not more, firearm-related offenses. These include:

  • Seven convictions of possession of a firearm in furtherance of a drug trafficking crime;
  • Four convictions of possession of a firearm by a felon; and
  • Two convictions of use of a firearm in furtherance of a drug trafficking offense.

In August 2014, the Department of Justice announced its rubric for considering federal inmates for the President’s new initiative for executive clemency. Part of these criteria included: non-violent individuals who would not pose a threat to public safety if released; low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; inmates who do not have a significant criminal history; and those who have no history of violence prior to, or during, their current term of imprisonment.

By my count, the President has commuted the sentences of over 200 of these “non-violent” federal inmates, of which 33 were convicted of firearm-related offenses.  I am troubled by the nature of the firearm-related convictions and the fact that some individuals are previously convicted felons who continued to commit crimes.  This announcement clearly demonstrates that the Administration is not following its own selection criteria.  Frankly, I am left wondering why the President and the Justice Department consider individuals who carry guns to drug deals as “non-violent”.

April 5, 2016 in Clemency and Pardons, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, April 01, 2016

Federal district judge astutely asks feds for accounting of political corruption sentences before high-profile NY pol sentencing

As reported in this New York Post article, headlined "Judge in Shelly Silver’s case wants to know how much time crooked pols usually get," a federal district judge has ordered federal prosecutors to help her discharge her post-Booker sentencing duties under 18 USC 3553(a)(6) to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  Here are the interesting details:

Manhattan federal Judge Valerie Caproni wants a chart outlining sentences for previously convicted New York politicians ahead of Sheldon Silver’s sentencing next month.  In an order to prosecutors filed Thursday, Caproni asked for the information to “consider the need for unwarranted disparities between similarly situated defendants.”

The judge wants the government to include in its sentencing submission paperwork “a summary chart containing the sentences imposed on elected state and federal officials who were convicted in federal court of corruption-related offenses in the last five years to the extent that information is not unduly burdensome to obtain,” the one-page order says.

Prosecutors will have their hands full: Dozens of New York politicians have been convicted of charges varying from bribery to mail fraud and racketeering to tax evasion, prosecutors said.

Ex-City Councilman Dan Halloran was slapped with a stiff 10-year prison sentence for masterminding a failed $200,000 bribery plot to rig the 2013 mayoral election for then-state Sen. Malcolm Smith.  Meanwhile, ex-Senate Majority Leader Smith, who was also busted, got seven years behind bars.

And Hiram Monserrate, the Democratic state senator who looted nearly $100,000 in taxpayer money to win higher office, was sent away for two years in 2012 after pleading guilty.  Another disgraced ex-state senator, Pedro Espada Jr., received a five-year sentence for bilking a taxpayer-funded nonprofit to pay for his lavish lifestyle.

Silver faces up to 130 years behind bars after he was convicted in November of corruption charges.  The 72-year-old ex-Assembly speaker will likely receive far less at his sentencing April 13.

Prosecutors’ sentencing submission is due by April 6, court records show. Ex-Senate Majority Leader Dean Skelos — who was convicted with his son, Adam, of bribery and corruption just weeks after Silver — also faces 130 years.  The Skeloses will be sentenced April 28.

Based on the quote of this article, it seems that Judge Caproni has asked not merely for sentencing details on convicted New York politicians, but all "elected state and federal officials who were convicted in federal court of corruption-related offenses in the last five years." I am guessing there could be hundreds of politicians nationwide who fit into this category. I would be especially interested to see what this summary chart looks like, and I hope to be able to post it on this blog whenever it becomes publicly available.

April 1, 2016 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Thursday, March 31, 2016

"A Fatally Flawed Proxy: The Role of 'Intended Loss' in the U.S. Sentencing Guidelines for Fraud"

The title of this post is the title of this notable new article authored by Daniel Guarnera now available via SSRN. Here is the abstract:

Of all federal criminal defendants, those convicted of fraud are among the most likely to receive a sentence below the term recommended by the U.S. Sentencing Guidelines.  The most important (and controversial) driver of fraud sentences under the Guidelines is the economic loss — actual or intended, whichever is greater — resulting from the crime.

This Article examines the role of the “intended loss” calculation.  The U.S. Sentencing Commission designed the intended loss enhancement to function as a rule-oriented proxy for defendant culpability.  By applying the framework of rules and standards, this Article argues that culpability, by its nature, is too multifarious a concept to be accurately represented by a single variable.  Furthermore, a recently-enacted amendment to the definition of intended loss — which restricts its scope to losses “that the defendant purposely sought to inflict” — will only exacerbate the problem by excluding a significant subset of plainly culpable conduct.

Rather than attempt to fine-tune the intended loss calculation any further, this Article contends that the purposes of sentencing in general (and the goals of the Guidelines in particular) would be better served by enabling judges to conduct a more standard-based inquiry into the wide array of facts that can bear on culpability.  It evaluates several proposals that would give judges greater discretion while, at the same time, minimizing the risk of unwarranted sentencing disparities.

March 31, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3)

Wednesday, March 30, 2016

GOP frontrunner Donald Trump says "some form of punishment" would be needed for women who have abortions if procedure is made illegal

This recent article at The Crime Report, headlined "Trump On Crime: Tough Talk, Few Specifics," highlighted how hard it is to figure out Donald Trump's policy position on various criminal justice issues (in which I was quoted):

Most experts we talked to say it’s hard to distinguish the rhetoric from the policies. “[The Trump campaign] has not issued a platform yet, so I’m not sure that I’d take anything that he’s been saying as an actual criminal justice policy,” said Inimai M. Chettiar, director of the Brennan Center’s Justice Program.

“What’s really frustrating, is that (he’s) like a cardboard candidate; you know what his pitch is but you don’t know anything else beyond that,” said Prof. Laurie Levenson of Loyola Law School. “And maybe he doesn’t either.”

Berman suggests half-jokingly that there’s a “simple answer” to the question of what Donald Trump believes about criminal justice. “Who the hell knows?” he said.

On many policy issues, Trump has sidestepped detailed responses by pointing to his experience in real estate and suggesting that good dealmakers keep their positions ambiguous at the start of any negotiation. That seems to apply to his approach to justice as well. Asked about specific criminal justice reforms, Trump often changes the subject back to supporting police or vague answers about needing to be “tough.”

But today GOP frontrunner Trump is making headlines for talking about criminal punishment in an especially controversial setting.  This FoxNews piece, headlined "Trump says abortion ban should mean punishment for women who have procedure," provides the details:

Republican presidential front-runner Donald Trump said Wednesday said that if abortion were illegal in the United States, then women who have the procedure should be punished.  Trump made the comments during a taping of an MSNBC town hall that will be aired later Wednesday.

Host Chris Matthews pressed Trump to clarify, asking him whether abortion should be punished and who ultimately should be held accountable. “Look, people in certain parts of the Republican Party, conservative Republicans, would say, ‘Yes, it should,’” Trump said. The candidate later put out a statement saying: “This issue is unclear and should be put back into the states for determination.”...

When asked specifically at the town hall what he thought, the New York businessman answered, “I would say it’s a very serious problem and it’s a problem we have to decide on. Are you going to send them to jail?”

“I’m asking you,” Matthews prompted.

“I am pro-life,” Trump said.

Matthews pressed on, asking again who should be punished in an abortion case if it were illegal.

“There has to be some form of punishment,” Trump said.

“For the woman?” Matthews asked.

“Yeah,” Trump responded, adding later that the punishment would “have to be determined.”

His rivals seized on the remarks. Ohio Gov. John Kasich later told MSNBC “of course women shouldn’t be punished.” An aide to Texas Sen. Ted Cruz tweeted: “Don't overthink it: Trump doesn't understand the pro-life position because he's not pro-life.”

With all due respect to the statement made by an aide to Senator Ted Cruz, it seems to me that Donald Trump actually understands — and may be taking more seriously than many other politicians — the oft-stated pro-life position that life begins at conception and that abortion it at least somewhat akin to homicide.

The National Right to Life Committee, the nation's oldest and largest pro-life organization,  states expressly here that in the US "over 40 million unborn babies have been killed in the 40 years since abortion was legalized and more than 1.2 million are killed each year" and that "medical science has known conclusively that every individual's life begins at the moment of fertilization."   Pro-Life Action League states expressly here that "killing an unborn child is inherently wrong, and therefore can never be justified regardless of circumstances. It is no more just to kill an unborn child in order to avoid hardship than it would be to kill a toddler to avoid hardship. Because the unborn child is unseen, it is easier for society to condone killing him or her, though this is morally indistinguishable from killing any child at any stage of development."  The American Life League similarly states expressly here that "abortion is a direct attack on a preborn child which kills; it is murder."

If one genuinely believes that any abortion involves the intentional "killing" of a human life, that it is "morally indistinguishable from killing any child at any stage of development," and that "it is murder," and thus an act which should be criminally prohibited (like all other forms of intentional homicide), then I would hope that one ought also be genuinely committed to criminally punishing, at least to some extent, any and every person intentionally involved in this act of intentional killing which "morally indistinguishable from killing any child at any stage of development." 

In modern society, we threaten to punish all sorts of persons (at least with fines) for all sorts of petty crimes like overtime parking and illegal copying of a DVD and loitering.  I believe I am understanding and showing respect to the views and claims of persons who are pro-lifer when I surmise they consider any intentional abortion to be a societal wrong that is far more serious than, say, overtime parking or loitering.  If that is right, then I also think it would be fair to say that Donald Trump is actually understanding and showing respect for the views and claims of persons who are pro-life when he suggests that women intentionally involved in obtaining illegal abortions ought to be subject to at least "some form of punishment."

March 30, 2016 in Campaign 2016 and sentencing issues, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Sunday, March 27, 2016

"Cities begin to challenge a bedrock of justice: They’re paying criminals not to kill"

DollarsThe title of this post is the headline of this lengthy Washington Post article about an alternative sentencing program sure to stir questions and controversy.  Here are some of the details (with a key line emphasized):

The odds were good that Lonnie Holmes, 21, would be the next person to kill or be killed in this working-class suburb north of San Francisco.  Four of his cousins had died in shootings.  He was a passenger in a car involved in a drive-by shooting, police said. And he was arrested for carrying a loaded gun.

But when Holmes was released from prison last year, officials in this city offered something unusual to try to keep him alive: money.  They began paying Holmes as much as $1,000 a month not to commit another gun crime.

Cities across the country, beginning with the District of Columbia, are moving to copy Richmond’s controversial approach because early indications show it has helped reduce homicide rates.  But the program requires governments to reject some basic tenets of law enforcement even as it challenges notions of appropriate ways to spend tax dollars.

In Richmond, the city has hired ex-convicts to mentor dozens of its most violent offenders and allows them to take unconventional steps if it means preventing the next homicide.  For example, the mentors have coaxed inebriated teenagers threatening violence into city cars, not for a ride to jail but home to sleep it off — sometimes with loaded firearms still in their waistbands.  The mentors have funded trips to South Africa, London and Mexico City for rival gang members in the hope that shared experiences and time away from the city streets would ease tensions and forge new connections.  And when the elaborate efforts at engagement fail, the mentors still pay those who pledge to improve, even when, like Holmes, they are caught with a gun, or worse — suspected of murder.

The city-paid mentors operate at a distance from police.  To maintain the trust of the young men they’re guiding, mentors do not inform police of what they know about crimes committed.  At least twice, that may have allowed suspected killers in the stipend program to evade responsibility for homicides.

And yet, interest in the program is surging among urban politicians.  Officials in Miami, Toledo, Baltimore and more than a dozen cities in between are studying how to replicate Richmond’s program.  The District of Columbia is first in line.

Implementing the Richmond model has emerged as a central fight this year between D.C. Mayor Muriel E. Bowser and the D.C. Council. Bowser (D) is opposed to the strategy, arguing that the city should instead use its resources to fund jobs programs and that there is little independent analysis of the Richmond program.  The mayor did not include money for it in her proposed 2017 budget released Thursday, and Police Chief Cathy L. Lanier said she is skeptical of the need for the Richmond-style program and has not seen sufficient data to verify its results.

She and Kevin Donahue, Bow­ser’s deputy mayor for public safety, question the veracity of Richmond’s claims of having saved so many of the city’s most violent offenders, since mentors — and not police — pick the participants and there has not been a control group used to measure outcomes. “There’s never been a real evaluation of the program,” Lanier said. “They didn’t design the program to allow it to be evaluated,” Donahue added.

But this month, the D.C. Council unanimously approved the idea as the best response to a surge of violent deaths that rocked the city last year. D.C. Council member Kenyan R. McDuffie (D-Ward 5) has promised to shift money from the mayor’s other law-enforcement priorities to launch the program. He said the successes in Richmond cannot be ignored by city leaders serious about reducing crime.  That’s because five years into Richmond’s multimillion-dollar experiment, 84 of 88 young men who have participated in the program remain alive, and 4 in 5 have not been suspected of another gun crime or suffered a bullet wound, according to DeVone Boggan, founder of the Richmond effort....

Richmond’s decision to pay people to stay out of trouble began a decade ago during a period of despair.  In 2007, Richmond’s homicide tally had surged to 47, making it the country’s sixth-deadliest city per capita.  In the 20 years prior to that, Richmond lost 740 people to gun violence, and more than 5,000 had been injured by a bullet.  Elected leaders of the heavily African American city of about 100,000 began treating homicides as a public health emergency....

Operation Peacemaker Fellowship is working with its fourth class of recruits, and [Boggan] no longer needs to wow participants with money upfront.  Dozens of former fellows on the streets of Richmond — alive and not in jail — are his best advertisement, he said.

Those in the program begin by drafting a “life map” and setting goals — such as applying for a job, going back to school or communicating better with family.  They meet with facilitators who, unbeknown to the young men, are psychologists or sociologists. Together, they talk through issues in what amounts to stealth therapy. If they remain engaged for six months, meeting with mentors several times a week, they start to receive monthly payments between $1 and $1,000, depending on their level of participation.  The maximum amount paid is $9,000 over the 18-month fellowship.  The program has handed out $70,000 a year, on average, since 2010, Boggan said.

Boggan believes that travel is another key to the program’s success.  He sets aside $10,000 per fellow for trips that are often the first time participants have left the state or the country.  But fellows must agree to partner with someone they have either tried to kill or who attempted to kill them. “Wild, right?” Boggan says.  “But they get out there and realize, ‘Hey, this cat’s just like me.’ ” Boggan’s measure of success: No fellows who have traveled together have been suspected in subsequent shootings against one another.

Boggan and his staff are used to questions — and criticism — about the money.  How do they know it doesn’t go to drugs? Or bullets?  They maintain that the money is an indispensable tool, a way to keep kids engaged long enough to make a difference in their lives.  “This is controversial, I get it,” Boggan said.  “But what’s really happening is that they are getting rewarded for doing really hard work, and it’s definite hard work when you talk about stopping picking up a gun to solve your problems.”...

Many details of how the District would replicate Richmond’s program have yet to be determined, but one aspect is clearly more complicated than in Richmond.  While the California strategy relies on private donors to fund the stipends and travel, the District would probably use roughly a half-million dollars annually in taxpayer money.  Asked whether he could justify the expense if it came from the city’s general fund, Richmond Mayor Tom Butt was uncertain. “I’d try really hard to find outside funding,” he said.

I fully understand the how controversial this program could be if framed as a "cash for killers" program that use taxpayer moneys to provide cash rewards to the most violent offenders simply for making efforts not to keep killing. But, as the first phrase highlighted above is meant to suggest, if this program is framed as a public health initiative that helps keep young people alive and healthly for minimal costs, then this program could look and should sound much more palatable to taxpayers. Of particular note, the latest DC budget proposal under the "Health and Human Services" line item, allocates $800,000 to something called the "Joyful Foods initiative." The early success of the Peacemaker Fellowships in Richmond, California suggests that devoting that money to reducing gun violence in DC may contribute much more to health and human services than making sure food in the District is viewed as joyful.

Not to be overlooked, especially when we focus on a town like DC where political money flows from private sources to all sort of political advocacy groups, it would seem very possible that enterprising individuals might be able to fundraise effectively for this cause. For example, a little research has revealed that both the NRA and the Brady Campaigns spend over $3,000,000 annually lobbying about firearm laws and policies. If both groups could simply be convinced to spend 10% of these lobbying budgets on a DC gun violence prevention program like Peacemaker Fellowships, this would itself provide $600,000 in resources for this kind of programming.

March 27, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Saturday, March 26, 2016

Wouldn't (severe? creative?) alternatives to incarceration be the best response to animal cruelty convictions?

Peace_love_stop_animal_abuse_postcard-r136275981620429394a9c237e5c49925_vgbaq_8byvr_324The question in the title of this post is prompted by this local story of a high-profile sentencing of a high-profile defendant convicted of multiple misdemeanor counts of animal cruelty. The piece is headlined "Former Raven Terrence Cody sentenced to nine months in Baltimore County animal cruelty case," and here are the details:

Baltimore County judge sentenced former Ravens player Terrence Cody on Thursday to nine months in jail in an animal cruelty case that drew interest across the country. Cody, 27, was convicted in November of multiple misdemeanors in connection with the death of his dog, Taz, last year, as well as two misdemeanor drug charges.  Prosecutors said Taz starved to death.

Cody faced the possibility of more than two years of incarceration. More than 5,000 people signed an online petition urging Judge Judith C. Ensor to impose the maximum sentence. Ensor said that she did not discount the petition but that she had to make an independent decision based on the case.  "My responsibility is to listen and to make the best decision I can," she said at the sentencing hearing.

Defense attorney Joe Murtha acknowledged that Cody neglected Taz but said that Cody loved the animal and didn't intend for it to die. He said that Cody was emotionally incapable of caring for the dog and that he suffers from depression.  "His level of depression is so significant that he's become just isolated," said Murtha, who added that his communication with his client has been limited because of Cody's depression.

Prosecutor Adam Lippe discounted the idea that Cody was depressed. He argued for the maximum amount of jail time — 905 days.  "I'm sure every defendant awaiting sentencing is depressed," Lippe said.

Lippe said during the trial that the dog starved to death at Cody's former home in Reisterstown over a period of at least a month. Cody testified at the trial that he believed Taz was suffering from worms.

Cody spent $8,000 to buy and import Taz, a Canary mastiff, from Spain. He took the animal to a Reisterstown animal hospital a few hours before it died. The dog, which once weighed at least 100 pounds, was down to less than 50 pounds at that point. Cody — whose nickname at the University of Alabama was Mount Cody — was drafted by the Ravens as a defensive lineman in 2010. The team released him when he was indicted last year.

After the trial last year, Cody was acquitted of two felony counts of aggravated animal cruelty. Ensor, who presided over the bench trial, said Thursday she was convinced that Cody did not torture Taz intentionally. "I remain firm" in that belief, she said.

The judge also sentenced Cody to probation before judgment for illegally possessing an alligator and for possessing drug paraphernalia. Police found a gas-mask bong and a 6-foot-long green glass bong in the home. She imposed suspended sentences for several counts, including a marijuana charge. She also sentenced Cody to 18 months of supervised probation and said he must undergo mental health treatment. During the probation period, he is not allowed to own or possess an animal. Cody will serve the sentence at the Baltimore County Detention Center in Towson.

Cody's girlfriend, Kourtney J. Kelley, 28, was also convicted in the animal cruelty case. She was sentenced last month to 60 days and has since been paroled. She was found guilty of five counts in connection with neglecting Taz. Cody, wearing a black hoodie and jeans, briefly addressed the court, saying he accepted responsibility. He also said he believed Kelley should not have been punished in the case....

Lippe said he was satisfied with the sentence. He said Cody had other dogs that were "fat and happy," but for some reason he treated Taz differently. "I can't explain to you why he decided to kill this animal," Lippe said. "It makes no sense at all."

I am huge aminal lover within a family which has always cared greatly about pets both usual (e.g., my dog and cat are hanging with me as I type this) and unusual (e.g., I have a bunch of parrot, angel fish and hermit crab stories).  Consequently, I fully understand how emotional so many folks get about animal cruelty and why there is often strong support for imposing the harshest possible sentences on those persons who get convicted of animal cruelty crimes.  

Nevertheless, as the question in the title of this post suggests and to parrot the words of the local prosecutor in this case, it really makes so sense at all to me to view lengthy terms of incarceration as the most efficacious response to these sorts of crimes.  Specifically, to focus on this case, did prosecutor Adam Lippe really think the citizens of Baltimore would be better off if former NFL player Terrence Cody served nearly 3 years in a local jail (at significant taxpayer expense) rather than, say, spending the next few years trying to get back into the NFL to make large sums of money that could be donated to animal protection societies or working publicly on helping animals as a part of community service program? 

I fully understand the potential incapacitative benefits of incarceration for dangerous people with a history of seriously risky or harmful behaviors.  But unless there is strong reason to believe Terrence Cody is a real danger to others, I think the the citizens and animals of Baltimore could and would be much better served through severe and creative alternatives to incarceration in a case like this.  But, problematically in the US and as part of our transformation into "incarceration nation," it seems that nearly all prosecutors and most members of the general public embrace the notion that the only way to be tough is through extended (and costly) periods of incarceration.

March 26, 2016 in Celebrity sentencings, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

Thursday, March 24, 2016

Fascinating issues emerging in run up to federal sentencing of former House Speaker Dennis Hastert

This new Politico article, headlined "New Hastert accuser emerges: Judge acknowledges that the case against the former House speaker involves alleged sex abuse," flags some of the notable issues emerging as the federal sentencing of a notable former member of Congress approaches. Here are the details:

A previously unidentified victim of alleged sexual abuse by former House Speaker Dennis Hastert has come forward to federal prosecutors and may seek to testify next month when Hastert faces sentencing in federal court in Chicago. The new accuser, labeled as "Individual D" in court papers, is not the "Individual A" to whom Hastert agreed to pay $3.5 million, setting off a series of events that led to the former speaker pleading guilty to illegally structuring $900,000 used in payments to the man.

Up until now, public court records and courtroom proceedings in the case have danced around the fact that the case stems from alleged sexual impropriety, reportedly from Hastert's years as a teacher and wrestling coach. But U.S. District Court Judge Thomas Durkin gave up that pretense Tuesday and made clear that the case is linked to the widely reported allegations of sexual misconduct.

"Let's not beat around the bush. If 'Individual D' wants to come in and talk about being a victim of sexual abuse, he's entitled to do so because that informs my decision about the history and characteristics of the defendant. It's that simple," Durkin said, according to a transcript POLITICO reviewed of a brief court hearing.

Hastert entered his guilty plea last October, acknowledging that he withdrew nearly $1 million in cash in increments of less than $10,000 to avoid reporting requirements, paying the money out to a longtime associate. The indictment against Hastert doesn't name the person he was paying, referring to him only as "Individual A."

Durkin agreed Tuesday to delay Hastert's sentencing by about three weeks at the government's request so that a witness who may wish to testify at the hearing can appear. "Individual D" is "not 100 percent certain he wants to [testify] but has been moving in that direction," prosecutor Steven Block told the judge.

The government apparently did not know of "Individual D" when the indictment was filed against Hastert last May. But sources said investigators were aware of at least two living victims at that time. Since the indictment, Hastert has been mum about the sexual abuse allegations that have swirled in the press. However, Hastert defense attorney John Gallo said Tuesday that the former speaker doesn't plan to contest "Individual D"'s claims.

Durkin also said he's willing to hear at sentencing from a Montana woman, Joanne Burdge, who claims her late brother had a sexual relationship with Hastert while her brother was an equipment manager on the wrestling team Hastert coached. "If the sister of a victim of sexual abuse wants to come in and talk about her interactions with her brother and talk about that, that is something that would inform my decisions about the history and characteristics of the defendant," the judge said.

Hastert's lawyers opposed delaying the hearing and said the proposed witnesses aren't victims under federal law because the crime Hastert pled guilty to was a bank reporting violation. "They're not classic victims, and so they have no statutory entitlement to appear," Hastert attorney Thomas Green said during Tuesday's hearing. He also said their submissions should be taken in writing, not through live testimony.

But Durkin rejected that position. "If they want to come in and they're willing to testify as live witnesses, they're absolutely entitled to do so, and the government's entitled to call them as live witnesses," the judge said.

In an interview, Burdge confirmed her desire and plan to speak at the sentencing. "I'm going to it. I feel like it's crossing the finish line and I need to do it," she told POLITICO Wednesday. "I've waited over 30 years for this."

In Hastert's plea deal, the defense and prosecutors agreed that sentencing guidelines call for the former speaker to receive between zero and six months in custody. However, after his guilty plea last year, the 74-year-old Hastert suffered a stroke and sepsis. Given the health issues, it's unclear whether Durkin will sentence Hastert to any jail time at all.

Some prior related posts:

March 24, 2016 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6)

Wednesday, March 16, 2016

"The Emerging Eighth Amendment Consensus Against Life Without Parole Sentences for Nonviolent Offenses"

The title of this post is the title of this article authored by Bidish Sarma and Sophie Cull recently posted on SSRN. Here is the abstract:

As the nation moves away from the policies that built a criminal justice system bent on mass incarceration, it is an appropriate time to reassess a sentencing regime that has doomed thousands of individuals convicted of nonviolent offenses to die in prison.  Over the last thirty years, those policies have resulted in more than 3,000 offenders across the country receiving life sentences without the possibility of parole when they were convicted of a nonviolent crime. While it seems clear to many today that this harsh punishment is inappropriate for offenses that involved no physical harm to other people, the individuals serving these sentences continue to face life and death in prison.  The Eighth Amendment offers these offenders an opportunity to demonstrate the unconstitutionality of their punishment to the Supreme Court — the institution in the best position to redress these excessive sentences of a bygone era.

This Article analyzes the claim that there is a national consensus against life without parole sentences for individuals convicted of non-violent offenses.  First, it defines the problem, exploring how and why some offenders received life without parole sentences for nonviolent crime.  This entails a look at the historical development of a series of harsh sentencing policies that made nonviolent offenses punishable by life without the possibility of parole.  The historical developments are then traced through to current times to explain the seismic shift in how leaders in all three branches of government approach punishing low-level and nonviolent crimes.

This Article situates the punishment in the Eighth Amendment context.  How have the Supreme Court's previous Eighth Amendment rulings framed the relevant constitutional questions?  And how can a change in the way the Court considers the link between the nature of the offense and the challenged punishment create new possibilities?  This Article explores how treating individuals sentenced to life without parole for nonviolent offenses as a discrete category based on the nature of the crimes can alter the Eighth Amendment framework that the Court will use to determine the punishment's constitutionality.  The unfavorable "gross disproportionality" cases that have previously been considered by the Court do not need to govern the claim and, therefore, do not foreclose the possibility that the Constitution itself prohibits these sentences.

After exploring how to understand the constitutional claim in a way that brings the Supreme Court's categorical approach to bear (rather than the gross disproportionality approach), this Article assesses the factors the Court considers in its consensus-based categorical test.  It sets out, and then evaluates, the various indicators of consensus upon which the Court relies: the number of jurisdictions that legislatively authorize a punishment; the number of sentences actually imposed; and the degree of geographic isolation.  It also evaluates the various considerations that assist the Court in making an independent judgment of the punishment.  Ultimately, based on binding Eighth Amendment precedent, sufficient evidence is available now to enable the Court to strike down life without parole sentences for nonviolent offenses.  In other words, there is an emerging consensus that the Court should recognize.

March 16, 2016 in Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Tuesday, March 15, 2016

US Sentencing Commission hearing on proposed immigration and other guideline amendments

Tomorrow, as detailed at this webpage with the official agenda, the US Sentencing Commission is holding a public hearing to receive testimony from invited witnesses on proposed amendments to the federal sentencing guidelines. This event is being streamed live, and can be watched at this link.  I am hopeful that, as is the usual USSC practice, this webpage with the official agenda will eventually provide links to any and all submitted written testimony of the scheduled witnesses. 

Most of the conceptual and technical debate about guideline amendments this cycle are to be focused on the immigration guidelines, which have been subject to an array of criticisms over the years.  I will be especially interested to see what federal judges, practitioners and advocates have to say concerning the amendments that have been proposed by the USSC in this important arena.  As federal sentencing fans likely know, immigration cases are a huge part of the total federal criminal docket, especially in border states. Thus, any significant changes to the immigration guidelines is sure to have significant ripple effects throughout the entire federal criminal justice system.

March 15, 2016 in Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (0)

Monday, March 14, 2016

Could three seemingly simple laws really reduce US gun deaths by more than 90 percent?

The question in the title of this post is prompted by this CNN report from late last week about some recent notable empirical research.  The CNN piece is headlined "Study: 3 federal laws could reduce gun deaths by more than 90%,"  and here are excerpts (with a few links from the original):

Passing federal laws that require universal background checks for firearm purchases, background checks on ammunition purchases and firearm identification could reduce the rate of U.S. gun deaths by more than 90%, according to a new study.  "We wanted to see which restrictive gun laws really work, as opposed to saying 'restrictive laws work,' and figure out if we are pushing for a law which might not work," said Bindu Kalesan, assistant professor of medicine at Boston University and lead author of the study, which was published on Thursday in The Lancet.

Researchers arrived at the projection by looking at the number of gun-related deaths in every state in 2010 and the types of laws that existed in those states in 2009, including restrictive laws, such as background checks and child access prevention laws, and permissive laws, such as stand-your-ground laws.  They took into account differences in rates of gun ownership, unemployment and homicides that did not involve guns deaths.  Out of the 25 existing state laws that Kalesan and her colleagues studied, nine were associated with lower rates of gun-related deaths.
 
The researchers found the largest effects for universal background checks, which were associated with a 39% reduction in death, and ammunition background checks, which were associated with an 18% reduction in death. Laws around firearm identification, which make it possible to determine the gun that fired a bullet, were associated with a 16% reductions in deaths.

Researchers projected that federal laws expanding background checks for firearms purchases would reduce the U.S. gun death rate by 57%, while background checks for ammunition purchases would cut gun death rates by 81% and firearm identification would reduce the rate by 83%. The researchers said it would take many years to lower the rates so far.  Although a federal policy known as the Brady Law requires background checks on individuals who want to buy a firearm from a licensed dealer, it leaves a large gap, as an estimated 40% of firearms are acquired through unlicensed sellers, such as some online and at gun shows....

The researchers found that nine of the 25 laws they analyzed were linked to higher rates of gun-related deaths. Another seven laws did not seem to have an impact one way or the other on gun-related deaths.  Some of the laws that were linked with greater numbers of gun related deaths came as a surprise to the researchers. For example, bans on assault weapons, such as semi-automatic guns, were associated with a 15% increase in mortality....

In an editorial published with the study, Harvard School of Public Health Professor David Hemenway said the study was "a step in the right direction" to understand the scientific evidence about policies to reduce gun violence. But, he said, cutting mortality rates so dramatically is more complicated than simply implementing background checks for firearms and ammunition. "That result is too large -- if only firearm suicide and firearm homicide could be reduced so easily," Hemenway wrote.

Although there is good evidence that state laws requiring universal background checks, as well as handgun-purchaser licensing or permit requirements, reduce homicides and suicides, the current study does not add to the evidence base, said Daniel Webster, director of the Johns Hopkins Center for Gun Policy and Research, who was not involved in the current study. Webster recently carried out a study in which they found a 1995 Connecticut law requiring firearm purchasers to have a license was linked to a sharp drop in gun-related murders in the state. For that study, he and his colleagues compared murder rates in Connecticut with similar states.

The problem with the current study, Webster said, is that it compared the number of deaths between all states, which could vary in many more ways than the authors accounted for, such as differences in culture, race and ethnic makeup, poverty rates and access to mental health care.  "Not surprisingly, the findings don't make much logical sense when it comes to gun policies other than the finding that universal background checks are protective," Webster said. For example, it is not clear why there would be such a large association, as the study found, between firearm identification laws and reductions in gun-related deaths, he added.

March 14, 2016 in Gun policy and sentencing, National and State Crime Data, Offense Characteristics, Second Amendment issues | Permalink | Comments (2)

Sunday, March 13, 2016

"Why We Would Spare Walter White: Breaking Bad and the True Power of Mitigation"

The title of this post is the title of this interesting-looking article authored by Bidish Sarma and recently posted on SSRN. Here is the abstract:

What if Walter White had been captured by the federal authorities?  Considering that he committed the murders of many individuals and orchestrated many more in the course of building and running his global meth trade, the prosecution would be able to seek the ultimate punishment against him.  But, would a jury give him the death penalty? Walt’s gripping journey stirred within viewers a range of complex emotions, but even those revolted by his actions must concede that it is extraordinarily difficult to envision a random collection of twelve people unanimously agreeing that he deserves a state-sanctioned execution.  Indeed, it seems that many of us actually rooted for Walt throughout the series, even when we struggled to understand why.

This Essay explores the answer to the question of why we would spare Walter White from the death penalty.  Its exploration underscores the critical importance of “mitigation” — a capacious term that refers to evidence introduced by capital defense lawyers to persuade jurors to hand down something less harsh than a death sentence.

Breaking Bad, through its masterful construction of its core narrative, situated us to empathize with Walt, to view him as someone we could understand, to feel about him the way we might feel about a friend or colleague or neighbor. Whether we argued vociferously in online forums that his actions were nearly always justified or simply watched with a suppressed but distinct hope that he might emerge as a partially redeemed man, many of us never condemned Walt. We did not want him to die an undignified death at someone else’s hands.  In fact, we were relieved that death came to him on his own terms.  And, if he had been captured, we would not have sent him to the death chamber.  Knowing Walt — understanding his “mitigation” — bent us towards mercy.

To start, this Essay explains how a capital trial unfolds and sets out the factors that jurors must take into account when they decide whether to choose death for a convicted capital defendant.  After establishing the basic framework for the death-determination in Part I, this Essay focuses on Walter White’s hypothetical penalty phase in Part II.  It describes both the “aggravating” evidence the prosecution would use to persuade jurors that death is the appropriate punishment and the “mitigating” evidence the defense would use to persuade jurors that a sentence less than death is appropriate.  Part II concludes with an explanation of why a jury likely would not sentence Walter White to die.

Part III steps back to identify distinct conclusions that we could draw from viewers’ prevailing willingness to ride with Walt until the end.  It concludes that it would be unwise to dismiss Walt as a fictitious outlier. Rather than ask ourselves what makes Walt’s particular case for mercy special, we should ask ourselves how the show managed to make him so real.  Breaking Bad’s storytelling proved so powerful that the show’s writers were themselves amazed that viewers continued to stand by Walt’s side through it all.  If we would spare Walter White, surely we would spare many others facing capital punishment.  But to get there, we need to do more than hear that they have struggles and triumphs of their own; we need to walk with them on their journeys.  We must feel like we did when the last episode of Breaking BadI began — wondering exactly how things will end, but unwilling to bring that end by our hands.

March 13, 2016 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Friday, March 11, 2016

"Who Watches the Watchmen? Accountability in Federal Corporate Criminal Prosecution Agreements"

The title of this post is the title of this paper recently made available via SSRN and authored by Michael Patrick Wilt. Here is the abstract:

The Department of Justice entered into hundreds of deferred and non-prosecution agreements (DPAs and NPAs) with corporations over the last twenty years, and continues to increase the use of these agreements every year. However, there is no academic scholarship that explores whether the DOJ has grounded these criminal settlements in traditional criminal sentencing procedures. Specifically, do these agreements – which can often include hundreds of millions of dollars in penalties – follow the carefully considered principles of the U.S. Sentencing Guidelines for Organizations?

This article considers this question in light of the public choice theory of criminal procedure and concludes that the DOJ is not utilizing the Sentencing Guidelines in a manner consistent with basic notions of government accountability in the criminal justice system. The article uses data collected from over three hundred deferred and non-prosecution agreements and finds that only a small percentage include an analysis of a monetary penalty based on the Sentencing Guidelines. The government’s use of a non-traditional process to resolve corporate criminal cases should be concerning in the absence of an institutional check such as the Sentencing Guidelines. The article urges the DOJ to adopt standardized procedures for future criminal settlements, including a demonstration of the Sentencing Guidelines analysis typically found in plea agreements.

March 11, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Tuesday, March 01, 2016

Via 6-2 vote, SCOTUS upholds broader interpretation of child-porn mandatory minimum provision

The first official SCOTUS opinion handed down without Justice Scalia as a member of the Supreme Court in three decades just happened to be an intriguing little sentencing opinion: Lockhart v. US, No. 14-8358 (S. Ct. March 1, 2016) (available here). Justice Sotomayor wrote the opinion for the Court on behalf of six Justices, and it begins this way:

Defendants convicted of possessing child pornography in violation of 18 U. S. C. §2252(a)(4) are subject to a 10-year mandatory minimum sentence and an increased maximum sentence if they have “a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” §2252(b)(2).

The question before us is whether the phrase “involving a minor or ward” modifies all items in the list of predicate crimes (“aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct”) or only the one item that immediately precedes it (“abusive sexual conduct”).  Below, the Court of Appeals for the Second Circuit joined several other Courts of Appeals in holding that it modifies only “abusive sexual conduct.”  The Eighth Circuit has reached the contrary result.  We granted certiorari to resolve that split.  575 U. S. ___ (2015).  We affirm the Second Circuit’s holding that the phrase “involving a minor or ward” in §2252(b)(2) modifies only “abusive sexual conduct.”

Justice Kagan, joined by Justice Breyer, writes an extended dissent that kicks off with pop-culture references sure to be highlighted by many in social media:

Imagine a friend told you that she hoped to meet “an actor, director, or producer involved with the new Star Wars movie.” You would know immediately that she wanted to meet an actor from the Star Wars cast — not an actor in, for example, the latest Zoolander.  Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.”  Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California?  And consider a law imposing a penalty for the “violation of any statute, rule, or regulation relating to insider trading.”  Surely a person would have cause to protest if punished under that provision for violating a traffic statute.  The reason in all three cases is the same: Everyone understands that the modifying phrase — “involved with the new Star Wars movie,” “in New York,” “relating to insider trading” — applies to each term in the preceding list, not just the last.

That ordinary understanding of how English works, in speech and writing alike, should decide this case.  Avondale Lockhart is subject to a 10-year mandatory minimum sentence for possessing child pornography if, but only if, he has a prior state-law conviction for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” 18 U. S. C. §2252(b)(2).  The Court today, relying on what is called the “rule of the last antecedent,” reads the phrase “involving a minor or ward” as modifying only the final term in that three-item list.  But properly read, the modifier applies to each of the terms — just as in the examples above.  That normal construction finds support in uncommonly clear-cut legislative history, which states in so many words that the three predicate crimes all involve abuse of children.  And if any doubt remained, the rule of lenity would command the same result: Lockhart’s prior conviction for sexual abuse of an adult does not trigger §2252(b)(2)’s mandatory minimum penalty.  I respectfully dissent.

I am going to resist the urge to speculate concerning which opinion Justice Scalia might have been likely to join were he still alive today, especially given that the late, great Justice was a fan of ordinary understanding and the rule of lenity, but not a fan of legislative history, in the interpretation of federal criminal statute.  I am also going to resist blogging a lot more about this case unless something jumps out as distinctly blogworthy when I have a chance to review the opinions more closely in the days ahead.

March 1, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)

Monday, February 29, 2016

"Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a State law?"

The question in the title of this post is the question I have been asking again and again since the US Supreme Court decided in Heller and McDonald that the Second Amendment secured an individual right to keep and bare arms that was to be enforced in a manner comparable to other rights enumerated in the Bill of Rights. It also happened to be the question that Justice Clarence Thomas asked the federal government during oral argument today in Voisine v. United States

As highlighted by a whole bunch of press coverage spotlighted here at How Appealing, it is notable simply that Justice Thomas spoke up at oral argument after having been silent in that setting for a decade.  But I trust regular readers will not be surprised to hear that I am excited that Justice Thomas decided he had to speak up to ask what I think is the very hard question about the meaning and reach of the Second Amendment that lacks a very good answer if Heller and McDonald are serious about the need to treat the Second Amendment seriously like all other rights enumerated in the US Constitution's Bill of Rights.

Not only did Justice Thomas ask this important question toward the tail end of oral argument in Voisine, he followed up with a First Amendment analogy that I find pretty compelling:

JUSTICE THOMAS:  [L]et's say that a publisher is reckless about the use of children, and what could be considered indecent [placement in an ad] and that that triggers a violation of, say, a hypothetical law against the use of children in these ads, and let's say it's a misdemeanor violation.  Could you suspend that publisher's right to ever publish again?

MS. EISENSTEIN: Your Honor, I don't think you could suspend the right to ever publish again, but I think that you could limit, for example, the manner and means by which publisher...

JUSTICE THOMAS: So how is that different from suspending your Second Amendment right?

Critically, even though I do not believe the government here had any satisfactory answers for Justice Thomas's tough Second Amendment questions, the Justice was not even making his arguments as forcefully as he could have in the context of the federal criminal prosecution at issue in Voisine.  Critically, Voisine is not a case in which someone previously convicted of a state "reckless" misdemeanor is now seeking a legal declaration that he has Second Amendment rights.  Rather, Stephen Voisine is a schnook who was subject to a federal felony prosecution (and as much as 10 years in federal prison) simply for possessing a rifle (while apparently hunting a bald eagle!?!?) because a number of years earlier he pleaded guilty to a Maine domestic violence misdemeanor. 

For the record, I am not a big fan of Maine schnooks who in the past were involved in a domestic incident and years later go out hunting bald eagles.  But I am even less of a fan of the creation of new jurisprudential doctrines that would allow the federal government to bring a felony prosecution of an individual engaged in what might be otherwise constitutionally protected activity simply based on a long-ago misdemeanor violation of a State law.  That is the reality of what is going on in Voisine, and even folks not supportive of Second Amendment rights should be concerned that a case like Voisine could end up casting poor light on other constitutional protections if his conviction gets upheld in this case.

Some prior related posts:

February 29, 2016 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

SCOTUS taking on array of criminal justice cases this week in which Justice Scalia's absence will again be consequential

The Supreme Court this week hears oral argument in a trio of criminal justice cases this week.  Because all three cases strike me as involving relatively quirky/narrow issues, I am not expecting to get any blockbuster rulings from any of them (especially with a now short-staffed Court).  Via SCOTUSblog, here are links to the cases being heard today and tomorrow with the question presented:

Voisine v. United States (1) Whether a misdemeanor crime with the mens rea of recklessness qualifies as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9); and (2) whether 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) are unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution.

Williams v. Pennsylvania: (1) Whether the Eighth and Fourteenth Amendments are violated where a state supreme court justice declines to recuse himself in a capital case in which he had personally approved the decision to pursue capital punishment against the defendant in his prior capacity as an elected prosecutor and continued to head the prosecutors’ office that defended the death verdict on appeal, and where he had publicly expressed strong support for capital punishment during his judicial election campaign by referencing the number of defendants he had “sent” to death row, including the defendant in the case now before the court; and (2) whether the Eighth and Fourteenth Amendments are violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive.

Nichols v. United States: (1) Whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals.

Because Williams involves an Eighth Amendment case and involves the death penalty, I suspect it will get the most press attention and probably even most of my attention after today's oral argument. But, in part because Williams involves an Eighth Amendment case and involves the death penalty, I am already pretty confident which Justices are likely to be more or less sympathetic to the capital defendant's claims on appeal.

In contrast, both Voisine and Nichols involve questions of statutory interpretation of federal crime statutes in politically fraught settings: Voisine involves the mix of domestic violence and guns, Nichols involves the tracking of sex offenders abroad. Both the specific legal issue before the Court and the context in which it arises makes me uncertain how various justices are likely to approach the cases at oral argument and in an eventual ruling. In both cases, though, the defense side likely is quite sorry to see Justice Scalia's chair empty because he was among the most consistent and forceful voices for the rule of lenity and other principles to limit the reach of government powers in the interpretation of federal criminal justice statutes.

February 29, 2016 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Thursday, February 25, 2016

Acknowledging and reflecting on the costs, both economic and emotional, that flow from proper implementation of Miller retroactively

This local article from Florida, headlined "Killer's brain development at issue in re-sentencing," provide a significant and sobering (and ultimately incomplete) account of the challenges many courts in many states are to face as they comply with the SCOTUS mandates in Miller and Montgomery that require the resentencing of any and every teen killer previously given a mandatory LWOP sentence.  Here are the basic details about this local case:

Maddie Clifton's killer will have his brain development reviewed by an expert before his re-sentencing hearing, a judge decided Thursday. Joshua Phillips, now 31, was convicted in the 1998 murder of 8-year-old Maddie and was sentenced to life without parole.  At the time of the murder, Phillips was 14....

The U.S. Supreme Court ruled in 2012 that automatic life without parole sentences for juveniles are unconstitutional. In 2015, the Supreme Court said that law applies to previous cases and that it is retroactive ....

“We have a duty to re-sentence the man and give him a proper opportunity,” Judge Waddell Wallace said in court Thursday.

Phillips' attorney, Tom Fallis, filed two motions with the court: one for a new sentencing hearing and another to have the court cover the costs of calling new experts to determine the proper sentencing.  Both motions were granted.

Fallis said some of the medical expertise from Phillips' original trial is no longer relevant, because of current research into juvenile psychology. "We're going to need a lot of experts," Fallis said. "This is going to be a very long hearing when it's set, and there will be evidence from what's happened in the last 20 years, what's happened in prison. I suspect there may be experts on prison life and how it affected a 14-year-old' who's now 30 some odd years old' and so the court needs to be educated. And the way you do that is through experts."

The state argued that calling new specialists and expert could be “absurd” and costly, but Wallace agreed to hiring a new expert and said the findings will be essential to the case, because of Phillips' brain development.

Police said Phillips, Maddie's neighbor, stabbed her and clubbed her to death in his San Jose area home. He hid her body under his waterbed in his room. Phillips' mother discovered the body a week later, after a massive search for the missing girl.  Phillips was convicted a year later.

I submitted amicus briefs in both Miller and Montgomery arguing for the Eighth Amendment rules as adopted and applied in those case, and I think it appropriate that this defendant finally have a chance for a discretionary sentencing hearing after he was decades ago mandatorily given an LWOP sentence for a crime committed at age 14.  And, though I am not quite sure this defendant really needs " a lot of experts" funded by the state to proceed with a proper resentencing, I also think it appropriate that the judge in this case recognized the need for giving the defense some additional resources to conduct a sound "Miller" resentencing.

That all said, I also think it appropriate for any and everyone like me who approved of the results in Miller and Montgomery to note and cope with the considerable costs that taxpayers and individuals are now going to have to endure.  Court resources are always finite, both in terms of time and money, and this press story highlights that it seems a significant amount of the limited court resources are now going to have to be devoted to the very challenging task of figuring out what now is a fair and effective sentence for "Maddie Clifton's killer," Joshua Phillips.  Moreover, and not mentioned in this story, I can only begin to imagine the emotional challenges that resentencing in this case will create for any and everyone connected to both the defendant and the victim.   

Though I continue to believe that mandatory juve LWOP sentencing is very wrong, this story is a reminder that it did have the notable virtue of being very easy. 

February 25, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)

Wednesday, February 24, 2016

"Judging Federal White-Collar Fraud Sentencing: An Empirical Study Revealing the Need for Further Reform"

The title of this post is the title of this notable new paper now available via SSRN authored by Mark Bennett, Justin Levinson and Koichi Hioki.  Here is the abstract:

White-collar federal fraud sentencing has long been fraught with controversy and criticism. As a result, the U.S. Sentencing Commission’s intensive multi-year examination of sentencing for fraud crimes generated tremendous interest among the Department of Justice, criminal defense organizations, the academy, and a wide-range of advocacy groups.  In November 2015, the Commission’s publicly announced proposed amendments became law without Congressional change.  These amendments, while commendable in process and purpose, fall short of sorely needed reforms that would serve to realign white-collar fraud punishments with legitimate penal justifications.  This Article portrays the recent historical tension between the Federal Sentencing Commission and federal judges, and presents the results of an original empirical study that demonstrates clearly the continuing need for significant reforms.

The Article begins by framing the problem of fraud sentencing within modern criminal law, and examines the statistical reality of economic crime sentencing since the 1980s, which has been increasingly characterized by downward departures from harsh recommend minimum sentences.  It then details an original empirical study we conducted on 240 sitting federal and state judges, just as the new sentencing guideline amendments were passing untouched through Congress.  This study presented judges with a realistic pre-sentence report for a multimillion-dollar economic crime, and asked judges to sentence the defendant.  We found that a remarkable 75% of federal district court judges sentenced the defendant to the precise minimum sentence of a possible seven year range.  The study further compared the judges’ sentences across judicial cohorts and evaluated the role of judges’ individual sentencing philosophies, age, religion, and the political party of the appointing president.  Despite a range of interesting differences in sentencing philosophy and self-reported attitudes found based on these factors, federal judges’ overwhelming agreement regarding minimum sentencing largely transcended their other differences.

The Article considers the results of the study in the context of the revised guidelines as well as scholarly reform suggestions, and offers five specific proposals to reform the guidelines, beginning with significant cuts to the so-called “loss table” as well as the specific offense characteristics that frequently lead to near-nonsensical sentencing guidelines.

February 24, 2016 in Data on sentencing, Federal Sentencing Guidelines, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2)

Monday, February 22, 2016

Because Michigan lacks the death penalty, can and should feds consider capital charges against admitted Uber mass murderer?

This new AP article, headlined "Uber driver admits to fatal Michigan rampage," prompts the question in the title of this post now that it seems there were be no questions about guilt in the latest horrific mass shooting.  Here are the disturbing particulars:

The Uber driver suspected in a series of three random shootings in Michigan admitted carrying out the seemingly random attacks that killed six people, a prosecutor said Monday. Jason Dalton waived his right against self-incrimination before making the statement to authorities, Kalamazoo County prosecutor Jeff Getting said.

Dalton's statements to police were used to file charges of murder and attempted murder Monday, two days after the shootings in the Kalamazoo area.  Dalton appeared briefly in court to hear the charges. He was ordered held without bond and will get a court-appointed attorney.

The shootings occurred in a restaurant parking lot, outside an apartment building and at a car lot. Two victims remain hospitalized.

Meanwhile, an Uber passenger said he called police to report that Dalton was driving erratically more than an hour before the shooting rampage began.

Matt Mellen told Kalamazoo television station WWMT that he hailed a ride around 4:30 p.m. Saturday. He said driver Jason Dalton introduced himself as "Me-Me" and had a dog in the backseat.... "I'm upset because I tried contacting Uber after I had talked to the police, saying that we needed to get this guy off the road," Mellen said....

Kalamazoo County Sheriff Richard Fuller said Uber is cooperating with law enforcement officials, and he believes the company will "help us fill in some timeline gaps." Investigators are particularly interested in communication between Dalton and Uber, as well as customers he might have driven, the sheriff said.

Questions about motive and Dalton's frame of mind are "going to be the hardest to answer for anybody," Fuller said.  He expects some answers to emerge in court, but he doubts they will be satisfying. "In the end, I ask people, because I keep hearing this question of why, 'What would be the answer that would be an acceptable answer for you?' They have to think about it for a moment, and they say, 'Probably nothing.' I have to say, 'You are probably correct.'  I can't imagine what the answer would be that would let us go, 'OK, we understand now.' Because we are not going to understand."

If Dalton is convicted, the murder charges carry a mandatory life sentence.  Michigan does not have the death penalty.

Authorities allege that he shot the first victim outside of an apartment complex and that he shot seven others over the next several hours.  Police have not provided a motive. The victims had no apparent connection to the gunman or to each other.

The attacks began early Saturday evening outside the Meadows apartment complex on the eastern edge of Kalamazoo County, where a woman was shot multiple times. A little more than four hours later and 15 miles away, a father and his 17-year-old son were fatally shot while looking at cars at a car dealership.  Fifteen minutes after that, five people were gunned down in the parking lot of a Cracker Barrel restaurant.  Four of them died....

A man who knows Dalton said he was a married father of two who never showed any signs of violence.  Gary Pardo Jr., whose parents live across the street from Dalton in Kalamazoo Township, described him as a family man who seemed fixated on cars and often worked on them.

I do not know enough about federal jurisdiction in capital cases to feel entirely confident that the feds would have a sure-fire jurisdictional basis to take over the prosecution of Jason Dalton.  But if one looks at the crimes that have landed some others on federal death row (listed here thanks to DPIC), most involve many fewer murders than Dalton committed.  And the fact that Dalton was apparently "on the job" for a notable national (internet?) company when he randomly slaughtered six innocent people and critically wounded two others.

February 22, 2016 in Death Penalty Reforms, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Tuesday, February 16, 2016

"Fifty Shades of Gray: Sentencing Trends in Major White-Collar Cases"

The title of this post is the title of this new Note appearing in the February 2016 issue of the Yale Law Journal authored by Jillian Hewitt and now available via SSRN.  Here is the abstract:

Between 1987 and 2005, federal judges sentenced defendants pursuant to binding Sentencing Guidelines that severely curtailed their discretion.  In United States v. Booker, the Supreme Court held the mandatory Guidelines sentencing scheme unconstitutional and rendered the Guidelines advisory.  This Note offers a picture of white-collar sentencing in “shades of gray.” It conducts an empirical analysis of sentencing decisions after Booker to assess the consequences of the return to judicial discretion.

In particular, the Note examines major white-collar cases in the Southern District of New York, where many such cases of national and international significance are prosecuted.  The Guidelines instruct judges in white-collar cases to calculate the amount of economic loss attributable to the defendant and apply a sentencing enhancement — often a sizable one — on the basis of that loss.  The findings reveal that a significant majority of defendants in these cases receive sentences of imprisonment shorter than those recommended by the Guidelines.  Moreover, when judges impose sentences below the Guidelines range, the resulting sentences are often dramatically shorter than those produced under the Guidelines.

Based on these findings, this Note argues that the U.S. Sentencing Commission should revise its approach to white-collar cases in three ways.  The Commission should amend the Guidelines to reduce the severity of the economic loss table; calculate economic “loss” differently; and add additional, though less severe, enhancements to punish pecuniary gain and intended loss.  Absent such changes, judges will — and should — continue imposing sentences far below the Guidelines range.  These proposed changes better capture the seriousness of the offense and the culpability of the offender, even if they do not resolve the fundamental tension between individualized sentencing and the rigid quantification that characterizes the Guidelines system.

February 16, 2016 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (1)

Friday, February 12, 2016

"A Republican Crime Proposal That Democrats Should Back"

The title of this post is the headline of this New York Times op-ed authored by Gideon Yaffe discussing federal mens rea reform.  Here are excerpts:

These days, it’s practically unheard-of for those on the left to embrace ideas promoted by the likes of the Koch brothers and the conservative Heritage Foundation. But it would be a shame if partisan distrust kept Democrats from supporting a proposal favored by the right: a measure that would bolster the idea that a criminal conviction should require proof of what lawyers call “mens rea” — literally, a guilty mind.  That’s because it can be harnessed to aid some of those who are especially ill treated by the criminal justice system: the poor and racial minorities.

As a legal principle, mens rea means that causing harm should not be enough to constitute a crime; knowingly causing harm should be.  Walking away from the baggage carousel with a suitcase you mistook for your own isn’t theft; it’s theft only if you knew you didn’t own it.  Ordinary citizens may assume that this common-sense requirement is already the law of the land.  And indeed law students are taught that prosecutors must prove not just that a defendant did something bad, but also that his frame of mind made him culpable when he did it.  But over the years, exceptions to the principle have become common because mens rea requirements have not been consistently detailed in laws....

Congress is now considering a measure sponsored by Representative James Sensenbrenner, Republican of Wisconsin, that would require that mens rea be proven in many more cases. For instance, a law making it a crime to mislabel drugs would automatically be interpreted as criminalizing knowing mislabeling.  The measure would not affect statutes that make clear that no mental state need be shown for guilt — for example, laws criminalizing sex with minors.

The provision is part of a sweeping criminal justice bill that includes important reforms sought by liberals, including reduced sentences for minor crimes.  Democrats, however, oppose the mens rea provision on the ground that it would weaken efforts to prosecute corporate executives whose companies have caused harm.  Their opposition is a major stumbling block to passage of the larger bill.  But suspicions about Republican motivations should not turn liberals against these changes, because strengthening mens rea requirements will also help poor and minority people....

The Justice Department opposes the proposed mens rea measure on the ground that it would have prevented convictions of corporate executives whose products caused harm.  But it is entirely possible that the government could have proven mens rea had it been required to try.  Furthermore, criminal conviction is not the only way to make corporations pay for their harms: Tort liabilities and civil penalties are not constrained by mens rea requirements.  Senator Patrick Leahy, Democrat of Vermont, opposes strengthening mens rea requirements across the board, arguing that each problematic statute should be revised individually.  But it would take years to revamp thousands of laws....

The greatest impact of the federal legislation might be in encouraging changes at the state level, where poor and minority defendants are most frequently prosecuted.  Ohio and Michigan have already passed mens rea reform laws.  And in the wake of federal legislation, other states, including New York, would likely follow their lead.

Democrats should push for even more sweeping changes to unjust “felony murder” laws, which permit murder convictions for anyone participating in a felony in which someone dies, even if no one involved could have been expected to foresee that happening.  We know that adolescents are far less aware than adults of the risks their conduct involves, but since felony murder does not require proof of mens rea, adolescent defendants can’t offer evidence of their distorted perceptions of risk.

For liberals, the right’s proposal offers a chance to strike a blow for justice for ordinary people. No one should be convicted of a crime — or even stopped by the police — without evidence of a criminal state of mind.

Some recent and older related posts:

February 12, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Monday, February 08, 2016

Politico reporting that (minor?) changes are being made to Senate's SRCA bill to appease GOP critics

This notable new Politico article, headlined "Criminal justice bill will be changed after conservative objections," reports on changes being made to certain provisions of the Sentencing Reform and Corrections Act (which I have called SCRA 2015 since its introduction last fall).  Here are all the important details:

Senators who authored a criminal justice overhaul are preparing several key changes to their bill aimed at mollifying conservative critics.  In recent weeks, a handful of Senate Republicans — led primarily by Sen. Tom Cotton of Arkansas — have argued that the criminal justice reform bill would allow thousands of felons convicted of violent crimes to be released early from prison.  Supporters say that’s an unfair characterization, but now they are making changes meant to eliminate any chance that those criticisms could become reality.

One change involves Section 105 of the bill, which reduced enhanced mandatory minimum sentences for so-called “armed career criminals.”  Under the original proposal, certain felons who already had three violent felony or serious drug offense convictions, and were found guilty of possessing a firearm would face a 10-year enhanced mandatory minimum — lowered from the current 15-year minimum sentence. But the bill’s authors are planning to get rid of this section altogether so that the higher, 15-year sentence remains intact, a senior GOP aide said Monday.  The aide added that this section was the subject of the most complaints from conservatives.

The second major change is to Section 104 of the bill.  That section reduces enhanced mandatory minimum sentences for felons convicted of possessing a firearm while committing a drug crime or a violent offense, such as robbery.  Those changes could be applied retroactively for current inmates.  Now, the new version would specifically bar people convicted of firearm possession alongside a violent crime from being able to retroactively seek a reduced sentence.  Those changes would “substantively" lower the number of current prisoners who could be released early, the aide said.  “We have changed the bill to directly address those concerns and ensure that violent offenders will not benefit from relief under any of the provisions in the retroactive provisions,” the senior Republican aide said.

The changes are expected to be rolled out later this week with the support of all initial GOP and Democratic backers of the criminal justice reform measure — a bill that’s been eyed as one of the few bipartisan accomplishments that could get done in Washington during a polarized election year.  The legislation was introduced last fall with the backing of a diverse Senate coalition that includes Sens. Chuck Grassley of Iowa and Patrick Leahy of Vermont, the top Republican and Democrat on the Judiciary Committee; the two chief vote-counters of each party, GOP Sen. John Cornyn of Texas and Dick Durbin of Illinois; conservatives such as Sen. Mike Lee (R-Utah) and liberals including Sen. Cory Booker (D-N.J.).

But Senate Majority Leader Mitch McConnell (R-Ky.), aware of the divisions in his conference on the criminal justice measure, has so far declined to say whether he’ll put the bill on the floor this year.

I suspect many eager to see sweeping federal sentencing reforms will be disappointed to hear that SCRA 2015, which many reform advocates already believe does not go nearly far enough, is now being modified to restrict further the reach of reforms to certain mandatory minimum sentencing provisions.  But I am actually quite excited to hear this news because it reveals there are on-going efforts to address the stated concerns of current opponents of the bill.  If those concerns can be adequately addressed by what would appear, from the description above, only relatively small changes to a big bill, then I will become more optimistic again about the prospects of some significant statutory reform coming to Prez Obama's desk before he leaves the Oval Office.

Prior to hearing this news, I had been persistently pessimistic about SCRA 2015 ever even coming up for a full Senate vote given that prominent conservative Senators like Tom Cotton and Ted Cruz were voicing significant opposition.  But maybe these reported changes will be sufficient for Senate Majority Leader Mitch McConnell to be now willing to bring SCRA 2015 up for a vote.   Of course, this story does not mention the still heated debate over whether mens rea reform will become an integral part of the Senate's statutory reform activities, and thus this Politico news is anything but a guarantee that federal statutory sentencing reform is sure to become a reality.  Still, this Politico piece does encouragingly suggest the sausage factory that is federal lawmaking is continuing to grind its way forward on federal statutory sentencing reform.

Recent prior related posts on SRCA 2015:

February 8, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

"Their 'compassion' is seriously flawed: Politicians care about white addicts — but still love the racist drug war"

The title of this post is the headline of this notable new Salon article authored by Daniel Denvir.  Here are excerpts:

It’s a new day for American drug policy, at least as far as drug users are concerned. In New Hampshire, Jeb Bush, Carly Fiorina and Chris Christie are speaking to the wrenching pain of losing loved ones to opioid addiction and death, and making the case that drug abuse should be treated by health professionals and not jails....

Republicans on the campaign trail are opening their hearts to addicts and their families, and policymakers from both major parties are backing harm reduction measures like increasing access to the overdose-reversing drug naloxone.  The shift in tone and policy is important, and it has understandably caught reporters’ attention. “In speaking about their own experiences, Republican candidates are not only allowing themselves to be vulnerable in front of voters, they’re also straying from the just-say-no message of Ronald Reagan, whose legacy includes a tough legislative stance on drugs and drug sentencing,” writes the New York Times’ Emma Roller.

The seeming about-face, however, also reveals a troubling problem: Heroin user demographics have changed dramatically in recent years, from heavily black to overwhelmingly white; and it seems that for politicians, it is the opioid crisis’ newly white face that has lent it a relatable quality as far as drug users are concerned.  This has not so much been the case for drug dealers....

And therein lies the rub: While many have noted the racial double standard at work, little attention has been paid to its ongoing and pernicious consequence — policy makers are often still approaching drug dealers with ruthlessly punitive measures, and those drug dealers are likely to be black and Hispanic.  At least, that is, those for drug dealers who are serving prison time: studies have found that in reality whites are more likely to sell drugs than blacks.

It turns out that Bush and company are not straying as far from drug war orthodoxy as it might seem at first blush. “For dealers, they ought to be put away forever as far as I’m concerned,” said Bush, summarizing the new compassionate consensus’s harsh edge. “But users — I think we have to be a second-chance country.”

While the face of drug users is becoming white, the image of drug dealers often remains black or Hispanic, as blunt-speaking Maine Gov. Ron LePage recently made clear. “These are guys with the name D-Money, Smoothie, Shifty – these types of guys – they come from Connecticut and New York, they come up here, they sell their heroin, they go back home,” said LePage. “Incidentally, half the time they impregnate a young white girl before they leave, which is a real sad thing because then we have another issue we have to deal with down the road.”

LePage’s comments prompted outrage and ridicule because they were racist. But the policy implications go beyond rhetorical offense, because the growing empathy toward white heroin users could actually reinforce or even increase hostility toward drug dealers, especially if they are perceived as being black and Hispanic. Ted Cruz, for one, blamed drug problems on borders left open for “undocumented Democrats.” The upshot is that growing compassion toward drug users won’t necessarily lead to a major reduction in the number of drug offenders behind bars. Drug dealers already made up the bulk of people serving time for drug crimes, and so the only way to sharply reduce the number of drug offenders in prison is to stop imprisoning so many drug dealers.

Instead, some officials appear to be heading in the opposite direction. Around the country, federal and local prosecutors are pointing to the opioid epidemic as a pretext to charge drug dealers with murder-type offenses in fatal overdoses. In reality, the sort of dealers who Bush and others want to put away for life include both small-time operators and drug users who appear to have shared a small amount of drugs with a friend. One man was sentenced to 20 years in federal prison for selling two-tenths of a gram of heroin, $30 worth, to a man who later overdosed. Many dealers, major and minor, are still subject to sentences harsher that what many countries reserve for murderers....

It’s not just a problem for Republicans, either. Democratic candidates for president Hillary Clinton and Bernie Sanders have yet to put forward a plan that would actually end the mass incarceration of drug offenders (let alone mass incarceration more generally, which is driven in significant part by the imprisonment of violent offenders). Both have bigger plans than Republicans, however, and Sanders has outdone Clinton by calling for an end to the federal prohibition of marijuana and supporting the reinstatement of federal parole. Both pledge to do something about harsh mandatory minimum sentences. But neither candidate has argued that most drug dealers should not be imprisoned, or suggested more radical but useful alternatives like broad-based legalization and regulation....

There is some movement to relax harsh punishments for nonviolent drug dealers and create programs to divert low-level dealers from prison. In Congress, bipartisan legislation would modestly reform some of the harshest mandatory minimums for drug dealers, President Obama has commuted the sentences of some drug offenders serving incredibly long federal sentences, and the racist discrepancy between federal crack and powder cocaine sentences have been narrowed (but not at all eliminated). But until politicians’ rethinking of the drug war extends to drug dealers, hundreds of thousands of people, disproportionately people of color, will be remain bars in the name of a drug war that by all honest accounts has failed to stop people from using drugs.

February 8, 2016 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Notable report on another EDNY federal judge objecting to harsh provisions of federal child porn laws

A helpful reader alerted me to this notable new New York Daily News report about another notable effort by a notable federal district judge in the Eastern District of New York expressing his disinclination to punish a child porn downloader as severely as federal prosecutors seem to want.  The article is headlined "Queens man charged with receiving 50,000 kiddie porn images can have unsupervised contact with his children," and here are excerpts:

A federal judge pooh-poohed the concerns of law enforcement officials, ruling that a Queens man charged with receiving nearly 50,000 kiddie porn images on the “dark Web” can have unsupervised contact with his two young children, the Daily News has learned.

“It comes down to money,” Judge Frederic Block explained in Brooklyn Federal Court last week. “It’s a financial burden on the family if they have to hire people to sit there and watch them.  I don’t see his children at risk.”

Both the Brooklyn U.S. attorney’s office and the pretrial services office of the Eastern District of New York disagreed, arguing that Naray Palaniappan, a computer consultant, should not be alone in his Jackson Heights home with his children, ages 2 and 4.  The federal Adam Walsh Child Protection and Safety Act routinely requires, as a condition of bail, that defendants in Palaniappan’s situation be accompanied by a monitor in the presence of children.

Palaniappan, 39, was nabbed last year in a nationwide FBI investigation of online pervs who troll a hidden region of the Internet, known as the dark Web, which is not accessible through conventional search engines.  Palaniappan, who investigators linked with the user name “JiminyCracket,” allegedly received a massive trove of child pornography that included videos of young girls being raped by adult men.

Assistant U.S. Attorney David Gopstein advised the judge that Palaniappan failed a lie detector test, administered by the FBI, in which he was asked if he had sexual contact with minors.  He has yet to complete a voluntary parenting program administered by the city, which could have bolstered his case that he isn’t a danger.  “There are troubling issues and we are talking about children,” Gopstein argued.

But Block, unmoved, lifted the restriction two weeks ago. On Thursday, Block brought Palaniappan and his wife into court for an update. “I assume he hasn’t molested his children since we last left,” Block said.  Palaniappan’s wife told the judge she didn’t object to leaving their kids alone with him.

The judge also blew up when a prosecutor told him that Palaniappan had been offered a plea deal that calls for a mandatory five-year sentence. “You think this man should be in jail for five years?” Block asked three times.... Block threatened to have Palaniappan’s case transferred to Federal Judge Jack Weinstein, who has openly challenged mandatory tough sentences in some child pornography cases.  It was unclear whether he was serious.

Defense lawyer Zachary Margulis-Ohnuma told The News that Block’s decision is well-reasoned and based on several reports, all positive, by the family service agencies overseeing Palaniappan’s case.

The way in which Judge Block handled this pre-trial issue of supervision leads me to think, ironically, that federal prosecutors are now almost certain to demand that this defendant plead guilty to a child porn receipt charge which carries a five-year mandatory minimum rather than to allow him only to plead to a CP possession charge which carries no mandatory minimum. Clearly, Judge Block does not view this defendant as a threat in the same way federal prosecutors do, and that suggests to me federal prosecutors will use the tools they have at their disposal to try to legally preclude Judge Block or others from showing leniency to this defendant.

Especially in the wake of Judge Jack Weinstein's recent notable sentencing ruling in US v. RV (discussed here), I am starting to sense there may be something of a sentencing turf war starting to emerge in Eastern District in these kinds of child porn cases.  For that reason and others, I would now not be surprised if the EDNY federal prosecutors are going to be even less inclined to cut any child porn defendants any kind of breaks in the plea process in all current and future cases.

February 8, 2016 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, February 07, 2016

A useful reminder that, even after Montgomery, SCOTUS will continue to be asked to address juve LWOP

BuzzFeed News reporter Chris Geidner has this effective new piece discussing the reality that SCOTUS is sure to be presented in the years ahead with Eighth Amendment challenges to any and every LWOP sentence given to a juvenile offender.  The piece is headlined "An Uncertain Path Ahead For Juvenile Sentencing Cases Still Before The Supreme Court," and here are excerpts:

Cortez Davis is serving life in prison under Michigan’s felony murder statute for a killing that occurred when he was 16 years old.  Davis was not the gunman, the trial judge in his case found, but was a participant in a robbery when the fatal shooting took place.  Nonetheless, under the Michigan law, because he was a key participant in the underlying felony, he was charged with felony murder. Davis was sentenced to life without the possibility of parole — the mandatory sentence in the mid-1990s.

More than a year ago, lawyers for Davis asked the Supreme Court to take up their client’s challenge to a lower court decision that upheld that sentence.  Now, following a recent Supreme Court decision, his challenge and several others are likely to be sent back to lower courts — a move that could, depending on what state courts do next, put off even further the chance people like Davis have to reduce or end sentences the court has repeatedly thrown into question in recent years.

The petitions ask the justices to address how and under what circumstances states can sentence juveniles to life without parole, including in a handful of cases in which the convictions are for felony murder.  Over the past decade, the court has taken up several cases addressing juvenile justice issues.  The court ended the eligibility of juveniles for the death penalty in 2005, and has since, in a series of rulings, narrowed the eligibility of juveniles for life sentences.

Last week, the court handed down yet another significant ruling on juvenile sentencing — this one in the case of Henry Montgomery — that deals with complicated legal issues, but has major consequences.  The court, in an opinion by Justice Anthony Kennedy, held that the 2012 ban on sentences of mandatory juvenile life in prison without the possibility of parole applied not just going forward, but also to those sentenced in the past like Montgomery. Montgomery is in jail for a killing he committed at 17 in 1963....

Far from a narrow procedural ruling, Kennedy explained that the 2012 ruling — Miller v. Alabama — was a substantive one, and, in its wake, “it will be the rare juvenile offender who can receive that same sentence.”  While Montgomery’s case was pending, however, the court left several related cases like Davis’s one — all of which ask the court to go further down this path — waiting for action from the justices.

Most expect the justices now to send those cases back to lower courts to consider how the Montgomery decision affects their respective cases.  During that period, how state courts interpret the Supreme Court’s ruling could vary widely. How rare is the “rare juvenile” that Kennedy writes about whose crime reflects “irreparable corruption”? How do states make that determination?...

On Jan. 25, Kennedy detailed the court’s decision that Louisiana had to give retroactive effect to the Supreme Court’s 2012 decision in the Miller.  In the wake of that decision, it’s likely that the justices will send Davis’s case back to the Michigan Supreme Court to reconsider it.  As Kennedy suggested in the Montgomery decision, Michigan either could re-sentence Davis — considering whether his crime reflects “permanent incorrigibility” — or make him eligible for parole consideration.

If Davis is re-sentenced instead of being granted a chance at parole, however, and if he is sentenced to life again, then he likely would go back to the U.S. Supreme Court — asking the court, again, to hear his case on the felony murder question.  (As is already being seen in Montgomery’s case, state officials in Louisiana have told the state’s supreme court that their aim is to re-sentence those with mandatory life without parole sentences, rather than give them the possibility of parole.)

February 7, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, February 01, 2016

Notable new parallel studies on comparable execution patterns in two notable states

Frank Baumgartner has recently released these two (short and reader-friendly) reports providing a "review of simple statistics" concerning who has been executed in two states in the modern death penalty era:

There were no data that especially surprised me during my (too quick) review of these reports, though I always find analysis of county-level death penalty patterns especially intriguing.  For example, these documents report that "six out of Florida’s 67 counties are responsible for more than half of the state’s 89 executions" and that "four out of Ohio’s 88 counties (Lucas, Summit, Cuyahoga, and Hamilton) — or just 5% — are responsible for more than half of the state’s 53 executions."  These kinds of data serve to highlight, yet again, just how significant county-level actors — particularly district attorneys and trial judges — truly are in the actual administration of the death penalty in the United States.

February 1, 2016 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (3)

Saturday, January 30, 2016

Judge Jack Weinstein disregards severe federal child porn guidelines again

A helpful reader alerted me to this notable local story describing the latest notable child porn downloading sentence imposed by US District Judge Jack Weinstein.  The piece is headlined "Judge Gives Man 5 Days for Child Porn, Rails Against Harsh Sentences," and here are excerpts:

A Brooklyn man who faced 10 years for downloading child pornography was sentenced to five days by a federal judge who sharply criticized punishment guidelines for failing to distinguish between dangerous offenders and those who pose little threat.

U.S. District Judge Jack Weinstein wrote a 98-page decision explaining why he bypassed the guidelines and chose not to put the man in prison for possessing two dozen photos and videos — some showing men sexually assaulting girls as young as 3 years old, according to court papers.  "Removing R.V. from his family will not further the interests of justice," Weinstein wrote, using the defendant's initials. "It will cause serious harm to his young children by depriving them of a loving father and role model and will strip R.V. of the opportunity to heal through continued sustained treatment and the support of his close family."

His opinion, first reported in the New York Law Journal, is the latest salvo in a war over whether penalties for possessing child pornography have gotten too harsh.  The existing guidelines, Weinstein wrote, do not "adequately balance the need to protect the public, and juveniles in particular, against the need to avoid excessive punishment."

The defendant, who agreed to speak to NBC News on the condition his name was not used, said he was surprised and relieved that Weinstein was so lenient after his guilty plea.  "I prayed to God and took my chances," the 53-year-old father of five said.  "I feel very remorseful. It's something that will never happen again."

But child-abuse victims' advocates said they were appalled by Weinstein's reasoning. "I think Judge Weinstein's opinion minimizes the harm that is done to victims of these crimes from the mere act of viewing their images. It's a gross violation of privacy and an invasion of privacy that traumatizes them throughout their lives," said Paul Cassel, a former federal judge who is now a law professor at the University of Utah.

In 2013, investigators remotely connected to the man's computer and downloaded four photos and videos showing men engaged in sexual acts with girls, including a 3-year-old and a 5-year-old, and they seized more porn on thumb drives with a search warrant, court papers said. The man also had "sexual" chats with underage girls online, but there was no evidence he sought physical contact with minors. When he pleaded guilty, the defendant said he understood the charge carried up to 10 years behind bars. Based on the specifics of his case, the federal guidelines called for a sentence of 6.5 to 8 years in prison.

But Weinstein thought that was too much time for an offender who did not make, swap or sell child porn or try to abuse children. He said the five days the man served before making bail, plus seven years of court supervision and a fine, were punishment enough. The judge noted that the man was undergoing sex offender treatment and was deemed unlikely to relapse and that a psychiatrist testified he was not a danger to his own or other children. He also noted that the Internet has made child pornography accessible to a much wider group of Americans who might not otherwise have been exposed to it.

The man — who lost his $75,000-a-year job as a restaurant manager after his arrest — told NBC News that he stumbled on child pornography while consuming legal, adult pornography online. "I just got caught up in it," he said. "It's not like I woke up and said, 'Listen, let me look at this stuff.' It kept popping up every time I was downloading."

Weinstein is among a group of federal judges who have argued that sentencing ranges for possessing child pornography — which were doubled by Congress in 2003 — are too severe. The federal bench handed down sentences below the guidelines 45 percent of the time, the Associated Press reported in 2012. Those who favor tougher sentences point out that while many consumers of child pornography may not never lay a hand on a child, some do. And all, they say, play a role in a system that promotes the abuse of children....

Jennifer Freeman, an attorney who represents child-porn victims in efforts to obtain restitution, called Weinstein's opinion "a diatribe" and said he was using the particulars of one case to indict the entire sentencing structure. "He's basically saying it's not worth too much punishment," she said, adding that she did not want to comment on whether the man Weinstein sentenced deserved more time than five days.

That man said that he had done something wrong and was ashamed of it but that locking him up would not have served any purpose and would have "put my family living out on the street."

"It should be illegal," he said of child pornography. "No child should be put through that process." But he added, "I would never physically do anything. I never had even a thought of it."

I will need to track down and review closely Judge Weinstein's lengthy opinion in this case before I would feel comfortable weighing in on this specific sentencing decision. But I already can state that I am sure federal prosecutors involved in this case are sure to feel quite uncomfortable when trying to decide whether to appeal this sentencing decision to the Second Circuit as unreasonable.

Assuming Judge Weinstein did not disregard any applicable mandatory minimum statute nor made any other clear doctrinal error, federal prosecutors might have a hard time establishing on appeal that Judge Weinstein's exercise of his post-Booker discretion in this case was unreasonable (especially in light of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines).  But a decision by federal prosecutors not to appeal this sentence might be viewed, perhaps properly, as a tacit admission by the government that a non-prison sentence can be appropriate in some child porn downloading cases.

UPDATE:  A helpful reader sent me a copy of Judge Weinstein's sentencing opinion in this case, so I can now provide it here for downloading:  Download US - v- RV weinstein sentencing opinion

January 30, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (24)

You be the state sentencing judge: how much prison time for former state official guilty of (small-time?) marijuana dealing

R_schmidt-262x272The question in the title of this post is prompted by this local story from Michigan, headlined "Ex-state Rep. Roy Schmidt pleads, sold marijuana as 'source of income,' judge says."  Here are the basics (with my emphasis added):

Former state Rep. Roy Schdmidt pleaded no contest Thursday, Jan. 28, to manufacture of marijuana.  Schmidt initially fought charges as a registered medical marijuana caregiver and disputed the amount of marijuana he possessed.

But a police report, read by Grand Rapids District Judge Michael Distel to establish a basis for Schmidt's guilt, said he told police that he sold marijuana to 10 to 15 people who were not his registered medical marijuana patients.   He told police that "he was operating his business as a source of income," Distel said.

Schmidt was charged last year with manufacture or delivery of marijuana after police raided his home on Seventh Street NW and a house he rented from his son on Myrtle Avenue NW.  Police said Schmidt possessed nearly three pounds of marijuana and 71 marijuana plants.  Caregivers are allowed to possess 2.5 ounces of usable marijuana for each of up to five patients. Schmidt has maintained that his drying marijuana was not considered usable.

He faces up to four years in prison when sentenced on March 22 in Kent County Circuit Court....  Under the plea, Schmidt admits no guilt but the plea is treated as such at sentencing.  He was allowed to plead no contest because he could face civil forfeiture proceedings related to his marijuana operation.

Schmidt is free on bond.  Kent County prosecutors will drop a second charge of manufacturing marijuana.

His arrest followed an ill-fated scheme to switch parties while he served in the House of Representatives.  After being elected as a Democrat in 2008, he lost his seat four years later after a controversial switch to the Republican Party.  He had spent 16 years on a Grand Rapids City Commission on the West Side of town.

This case raises more than a few interesting classic "offender-based" sentencing issues: e.g., (1) should Schmidt's history as a relatively prominent politician be viewed as an aggravating sentencing factor (because it makes him more culpable as someone who was involved in making the state laws he broke) or as a possible mitigating sentencing factor (because he would seem like the type of person unlikely to be a serious recidivist); (2) should the prospect of Schmidt losing his home and/or his son's home through civil forfeiture proceedings significantly influence what criminal sentence he receives?    

But, what really captured my attention in this case (and prompted my cross-posting over at my Marijuana Law, Policy & Reform blog) is the different ways this defendant's offense might be viewed by a sentencing judge.  His lawyers could perhaps claim, given the legalization of medical marijuana in Michigan, that Schmidt's crime is essentially a regulatory violation comparable to a liquor store owner who sold a dozen or so times to underage college students.  But prosecutors likely will assert that Schmidt should be viewed and sentenced like any other greedy drug dealer.

Thoughts, dear readers?

January 30, 2016 in Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4)

Thursday, January 28, 2016

Diving deep into latest data showing significant uptick in homicides in 2015

The folks at Wonkblog have this effective new posting, headlined "More people were murdered last year than in 2014, and no one’s sure why," which provides lots of interesting data on the significant increase in homicides in major cities in 2015.  It also highlights why simple explanations for this recent homicide increase (or prior decreases) are hard to come by.  I recommend the full piece, and here are excerpts:

Wonkblog analysis of preliminary crime data found that about 770 more people were killed in major cities last year than the year before, the worst annual change since 1990.

The killings increased as some law enforcement officials and conservative commentators were warning that violent crime was on the rise amid a climate of hostility toward police. They said protests and intense scrutiny of officers who used lethal force had caused officers to become disengaged from their jobs, making streets more dangerous. Some have called it the "Ferguson effect," after the St. Louis suburb in which Michael Brown Jr. was shot and killed by a police officer in 2014.

A closer look at the figures, however, suggests no single explanation for the increases and reveals no clear pattern among those cities that experienced the most horrific violence. Several cities that recorded the largest increases in homicides -- Nashville and Washington, D.C., for instance -- had no widely publicized, racially charged killings by police. Many other big cities recorded modest increases or even declines in the number of homicides, with no deviation from the pattern of recent years....

Public safety has been improving for two decades, and lethal violence in large cities is still rare by historical standards. Twice as many people were killed in those 50 cities in 1991 as in 2015. "You certainly wouldn't want to say the sky is falling," said Darrel Stephens, executive director of the Major Cities Chiefs Association.

Nonetheless, last year's interruption in the decline in homicides has experts concerned. They say it's too early to know what caused the change, or whether it will endure. It's not clear if there is a Ferguson effect, or if the homicides are a result of the heroin epidemic, reduced police department budgets, a decline in the number of convicts behind bars or other factors entirely. "There's no national pattern," said Franklin Zimring, a criminologist at the University of California at Berkeley....

Stephens, of the Major Cities Chiefs Association, ticked off a list of other theories for the increase in violence. Perhaps relaxed gun laws in some states are making firearms more widely available, and more arguments are being settled with lethal weapons as a result. Stephens also noted that authorities are locking up fewer people in prison, and perhaps more dangerous criminals were on the street last year.

Federal data, however, suggest that the reduction in the incarcerated population over the past several years is mainly a consequence of decreasing admissions, rather than a change in the number of prisoners released annually, which has also declined. In 2014, just 582,000 prisoners were let go from state and federal prisons, compared with 683,000 in 2008....

Additionally, both those explanations are complicated by the absence of any regional pattern in the data. There were more killings in Nashville, but the total in Memphis declined by 1 percent. The number of homicides increased 25 percent in Houston, but decreased 9 percent in San Antonio. There were seven fewer homicides last year than in 2014 in Fresno, Calif., a decline of 15 percent. Meanwhile, up Highway 99 in Sacramento, there were 43 killings last year, an increase of 54 percent. "Everything is basically anecdotal," Stephens said. "There's not a clear national picture that I've been able to discern of what might be contributing to the changes that we’ve seen in so many cities."

Bill Otis has some sharp commentary about these data and how Wonkblog reports it in this post at Crime & Consequences titled "The National Murder Crisis, Worse Than We Thought."  In that post, Bill quickly mentions "that the increase in murder in 2015 was more than 25 times the total number of killers executed that year," but he disappointingly does not follow-up by noting that the one major city with the biggest decline in homicides in 2015 was also the city with the most headline-grabbing 2015 capital punishment trial: Boston.  (I am generally disinclined to suggest there is a close relationship between the administration of the death penalty and homicide rates, but I still find notable that the dozen cities with the largest homicide increases in 2015 are all in states without the death penalty or with a capital punishment system not functioning properly.) 

January 28, 2016 in National and State Crime Data, Offense Characteristics | Permalink | Comments (18)

Wednesday, January 27, 2016

"Legislation to clarify intent requirements is long overdue brake on prosecutorial excess"

The title of this post is the headline of this notable new commentary in The Hill authored by Norman Reimer, executive director of the National Association of Criminal Defense Lawyers. Here are excerpts:

For several years now, unprecedented bipartisan support for an array of criminal justice reforms, including addressing criminal intent deficiencies, has been building.  Leaders from across the political spectrum have reached across the political divide to work together for a fairer, more rational, and more humane criminal justice system.  This emerging coalition seeks to restore a measure of restraint to a criminal justice system that is out of control.  The United States has more than 2 million people behind bars, recent FBI statistics indicate that we arrest more than 14 million annually, and we have more than 70 million adults with a criminal record.

These shocking statistics do not make the case that this is a nation of criminals; rather they reflect an unprecedented and unrestrained use of the prosecutorial power of government to regulate all manner of disfavored social and personal behavior. There are many ways to address this problem.  One modest, but critical step is to ensure that there is clarity in the criminal law, and that we do not enact vague criminal provisions and count on prosecutorial discretion to ensure that they are not misapplied.  Recently proposed legislation in the House and Senate that would provide a default intent provision where a statute is silent on the level of intent necessary to brand a person as a criminal is a responsible, measured, and incremental step to reign in governmental abuse of its prosecutorial power....

When the government brings to bear its most awesome power short of warfare, the power to prosecute an individual, it has an obligation to do so with precision and clarity, so that the average person can understand what is illegal.  A fundamental principle of law is that to establish criminal behavior it must be demonstrated that a person committed a bad act, and did so with some culpable mental state.

Unfortunately, the federal criminal code has exploded from a handful of criminal provisions a century ago to what is now estimated to be more than 4,500 criminal statutes, and hundreds of thousands of additional criminal provisions in federal regulations.  In its headlong rush to criminalize, Congress has become careless by writing laws and authorizing agencies to enact criminal provisions that can send people to jail, but do not define the required criminal mental state.  That failing opens the door to prosecutorial abuse.  Nonetheless, the Department of Justice is raising concerns about the proposed legislation.  Heaven forbid we should actually make prosecutors prove that someone actually intended to commit a crime!

What the DOJ criticism does not recognize is that criminal intent reform merely provides that if a criminal law or regulation lacks a prescribed mental state then judges and prosecutors should presume that there really is one.  It does not undo any criminal provision that already has a prescribed state of mind.  Government prosecutors can still go after people to their heart’s content, and, despite claims to the contrary, they can do so based on willful, reckless, or negligent behavior if that is what the law provides.  And they can even prosecute based on strict liability – that is without showing a guilty state of mind – provided that is what the law expressly authorizes.  But if the law is silent, rather than ceding to prosecutors unchecked authority to wield the prosecutorial power indiscriminately, this new law provides a modest brake on that power by requiring proof that the person knew that they were breaking the law.

Some recent and older related posts:

January 27, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)